statement of one accused of murder by poisoning, that he had given too much of a certain drug, at the same time protesting that it was done by mistake and that the homicide was unintentional is not a confession and should not be submitted to the jury on that theory." A confession, to be receivable as such, must be an admission by the accused that he is guilty of the precise crime with which he is charged. The prisoner's declaration that he is guilty of other similar crimes, while competent to show the existence of a criminal intent, never amounts to a confession of the crime for which he is indicted, nor do the rules and principles regulating confessions apply to such declarations." State v. Thomas, 135 Iowa 717, 725, 109 N. W. 900. "The distinction in all our cases is between the effect of admissions of fact from which the guilt of the accused may be inferred and the admission of guilt itself. Incriminating statements, to be the equivalent of a confession of guilt, must be so comprehensive as to include every fact necessary to be proved by the prosecution in order to establish the defendant's guilt. An admission of the main fact, from which the essential elements of the criminal act may be inferred, amounts to an admission of the crime itself. If the main fact is admitted with a qualifying exclusion of a necessary ingredient of the crime charged, the crime is not confessed. The qualification is a part of the admission, and both must be considered in interpreting the meaning of the statement. A crime consists in something more than the commission of an act. There must be a union of act and intention. One may admit that he took a horse from the stable of another and, at the same time, explain that he purchased the horse from a named person claiming to own the horse, and that there was no criminal intent on his part. If the admission that he took the horse was without explanation, the intent to steal could be inferred from the act of taking. But where the taking is claimed to have been in good faith and with no intention to commit a crime, and because of a purchase from one whom, in good faith, he believed to be the true owner the admission made with such qualification cannot mean that he was intending to confess his guilt of the crime of horse stealing. An admission of a fact not in itself involving criminal intent is not a confession. The term confession is restricted to acknowledgment of guilt and is not a mere equivalent of words or statements." Owens v. State, 120 Ga. 296, 48 S. E. 21. Commonwealth v. Call, 21 Pick. (Mass.) 515; Hardtke v. State, 67 Wis. 552, 558, 30 N. W. 723; People v. Hickman, 113 Cal. 80, 45 Pac. 175. Thus an offer to bribe the district attorney, coupled with an admission of having committed an indecent assault. cannot be construed as a confession of the crime of rape. State, 67 Wis. 552, 558, 30 N. W. 723. Hardtke v. Confessions may be either judicial or extra-judicial; the former are confessions that are made at a preliminary examination, at the coroner's inquest or on the trial of the accused. Extra-judicial confessions are those made out of court to any person. A plea of guilty on a prior trial or on the preliminary examination is an extra-judicial confession and may be proved as such on a subsequent trial. It is evidence merely and not conclusive on the court. This is the rule where the plea was accepted by the court and for some reason sentence was not imposed on the plea of guilty, or, being imposed, it was never executed. But a plea of guilty which the court refused to receive is not subsequently admissible in evidence as a confession.10 Declarations by the accused of an intention to commit separate offenses from that charged are not confessions. Kinchelow v. State, 5 Humph. (Tenn.) 9, 12. If the admission by defendant of the commission of other crimes than that charged is so inseparably connected with the confession of the crime for which he is on trial that it cannot be severed, it may be received, the jury being warned that it is in no sense evidence of the crime charged. Gore v. People, 162 Ill. 259, 44 N. E. 500. An admission by the accused that he killed deceased because of facts which even, if true do not justify or excuse the killing is a confession. Jones v. State, 130 Ga. 274, 60 S. E. 840. show why he pleaded guilty and to prove that he was not in fact guilty wherever a prior plea of guilty is used against him as a confession on a subsequent trial. In State v. Porter, 32 Ore. 135, 49 Pac. 964, the court said after quoting almost all the text writers. "From these authorities we take it that the admission of a fact, or a bundle of facts, from which quiet is directly deducible, or which within and of themselves impart guilt, may be denominated a confession, but not so with the admission of a particular act or acts or circumstances which may or may not involve guilt, and which is dependent for such result on other facts or circumstances to be estab * Commonwealth v. Ervine, 8 Dana lished." An admission by the ac(Ky.) 30. 9 * Green v. State (Fla.), 24 So. 537; State v. Briggs, 68 Iowa 416, 424, 27 N. W. 358; Commonwealth v. Brown, 150 Mass. 330, 331, 23 N. E. 49. 16 Commonwealth v. Lannan, 13 Allen (Mass.) 563; State v. Meyers, 99 Mo. 107, 12 S. W. 516, 519. A demurrer to the indictment can never be construed as a confession. The accused may always be allowed to 16-UNDERHILL CRIM. Ev. cused that he is in possession of property alleged to be stolen coupled with exculpating declarations is not a confession of the larceny. State v. Heidenreich, 29 Ore. 381, 45 Pac. 755. So in State v. Red, 53 Iowa 69, 4 N. W. 831, the accused on trial for murder admitted he had in his possession jewelry of the victim, a woman. The action of the court in calling this admission a confession was held to be § 126. Voluntary character of confessions.-Before a confession, either judicial or extra-judicial, can be received as such, it must first be shown that it was in every respect freely and voluntarily made." This means that the confession must not be obtained by error. The test is, are the facts stated by the accused, assuming them to be true, consistent with his innocence? If they are, his statement is an admission only and the rules of law relating to confessions do not apply to it. The admission may create a presumption against the accused which it will require evidence to remove. But unless the guilt of the accused is the sole and necessary resultant condition proceeding from or growing out of the facts admitted, the statement, however criminating, is merely an admission and not a confession. Confessions in criminal cases, 6 Am. St. 242, 251; admissibility in evidence, 6 Am. St. 242, 251; question of admissibility for court, 6 Am. St. 249; whole confession must be admitted, 6 Am. St. 251; confession elicited by questions, 18 L. R. A. (N. S.) 799-801; presumption as to voluntariness, 18 L. R. A. (N. S.) 857; presumption as to character of, 18 L. R. A. (N. S.) 783; determination of character of confession, 18 L. R. A. (N. S.) 777-794; confession without proof of corpus delicti, 6 Am. St. 252; reason for exclusion of confession, 18 L. R. A. (N. S.) 772; collateral inducement for confession, 6 Am. St. 249; statements made in sleep as confession, 6 Am. St. 249; subsequent confessions, 18 L. R. A. (N. S.) 857-859; effect of language assuming guilt addressed to accused, 18 L. R. A. (N. S.) 802; confession induced by hope or fear, 18 L. R. A. (N. S.) 804-832; promise of accused to turn state's evidence, 6 Am. St. 251; extrinsic facts ascertained through inadmissible confession, 6 Am. St. 250, 251; confession in prosecution for bribery, Elliott Ev., § 2907; in prosecution for counterfeiting, Elliott Ev., $ 2957; in prosecution for homicide, Elliott Ev., § 3034; in prosecution for perjury, Elliott Ev., § 3088; in prosecution for rape, Elliott Ev., $ 3103. 11 People v. Ward, 15 Wend. (N. Y.) 231; Commonwealth v. Taylor, 5 Cush. (Mass.) 605, 610; Commonwealth v. Morey, I Gray (Mass.) 461, 463; Commonwealth v. Preece, 140 Mass. 276, 277, 5 N. E. 494; Collins v. State, 24 Tex. App. 141, 5 S. W. 848; State v. Chambers, 45 La. Ann. 36, 38, 11 So. 944; Ross v. State, 67 Md. 286, 289, 10 Atl. 218; Nicholson v. State, 38 Md. 140, 153; People v. Taylor, 93 Mich. 638, 641, 53 N. W. 777; Smith v. State, 88 Ga. 627, 629, 15 S. E. 675; State v. Carson, 36 S. Car. 524, 531, 532, 15 S. E. 588; State v. Jones, 54 Mo. 478, 479; State v. Kinder, 96 Mo. 548, 10 S. W. 77; People v. Soto, 49 Cal. 67; People v. Fox, 121 N. Y. 449, 24 N. E. 923, aff'g 50 Hun (N. Y.) 604, 3 N. Y. S. 359: People v. Deacons, 109 N. Y. 374, 16 N. E. 676; Fife v. Commonwealth, 29 Pa. 429, 436; Alfred v. State, 37 Miss. 296, 306; State v. Chisenhall, 106 N. Car. 676, 680, 11 S. E. 518; Walker v. State, 136 Ind. 663, 668, 36 N. E. 356; State v. Poole, 42 Wash 192, 84 Pac. 727; State v. Daly, 210 Mo. 664, 109 S. W. 53; McAlpine v. State, 117 Ala. 93, 23 So. 130; People v. Rogers, 192 N. Y. 331, 85 N E. 135; State v. Berry, 50 La. Ann. 1309. any sort of threat or violence nor by any promise, either direct or implied, however slight the hope or fear produced thereby, nor by the exertion of any influence. And while circumstances are usually invoked to determine whether the confession is voluntary, yet as a safe general rule, it may be said that the statement will be presumed to be voluntary, unless it appears that it was inspired by a threat or a menace or procured by promises or inducements or the expectation of some hope or benefit.12 A basis must be laid for the admission of the confession by ascertaining whether the prisoner had been told that it would be advantageous for him to confess, or whether any threat or promise had been made to him in connection with the crime, which was sufficient to make the confession involuntary. If the confession is the result of the pressure of a promise of some benefit, or was procured by a threat, it will be excluded. In other words, the fact that accused was influenced by hope or fear to make a confession is regarded as creating so strong a presumption that the confession is untrue, that the law rejects it as worthless. The preliminary question, was the confession voluntary? bearing directly upon its competency as evidence, must be, according to the majority of the cases, decided by the court as a mixed question of law and fact.13 And the court may hear evidence 24 So. 329; Mitchell v. State (Miss. 1898), 24 So. 312; Pearsall v. Commonwealth (Ky. 1906), 92 S. W. 589, 29 Ky. L. 222; Watts v. State, 99 Md. 30, 57 Atl. 542; People v. Silvers, 6 Cal. App. 69, 92 Pac. 506; People v. Brasch, 193 N. Y. 46, 53, 85 N. E. 809; Fouse v. State (Neb.) 119 N. W. 478; Morris v. State, 146 Ala. 66, 41 So. 274. See, also, Underhill on Ev., 89. "Voluntary is not always used in contradistinction to compulsory. In many cases voluntary means proceeding from the spontaneous operation of the party's own mind, free from the influence of any extraneous disturbing cause." People v. McMahon, 15 N. Y. 384, 386; State v. Bohanon, 142 N. Car. 695, 55 S. E. 797. 12 Anderson v. State, 133 Wis. 601, 114 N. W. 112. 13 Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; Ford v. State, 75 Miss. IOI, 21 So. 524; Hunter v. State, 74 Miss. 515, 21 So. 305; Palmer v. State, 136 Ind. 393, 396, 36 N. E. 130; Brown v. State, 71 Ind. 470, 473; State v. Patterson, 73 Mo. 695, 706; State v. Kinder, 96 Mo. 548, 550, 10 S. W. 77; Brister v. State, 26 Ala. 107, 129; Simmons v. State, 61 Miss. 243, 257; Redd v. State, 69 Ala. 255, 259; People v. Fox, 50 Hun (N. Y.) 604, 3 N. Y. S. 359, 24 N. E. 923, aff'g 121 N. Y. 449: Thomas v. State, 84 Ga. 613, 618, 10 S. E. 1016; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. 634; People from both sides to show the circumstances under which the confession was made.13a And as the question is one wholly for the court to determine, the witness who testifies to what was said and to the circumstances should not be permitted to state that the confession was voluntary.14 The court must be allowed a considerable measure of discretion in determining this question. No particular threat or promise producing a confession can safely be said as matter of law to render the confession inadmissible, for the effect of the threat or promise may be neutralized by other facts and conditions. The admissibility of confessions so largely depends upon the special circumstances of each case that it is difficult, if not impossible, to formulate any rule which will embrace all the cases. And as the question is addressed in the first instance to the judge, and since his discretion must be controlled by all the attendant circumstances the courts have wisely foreborne to mark with absolute precision the limits of admission and exclusion.15 But numerous authorities hold that in case a conflict of evidence or room for doubt exists as to the voluntary nature of the confession, the court ought to submit the confession to the jury with an instruction that they may determine from v. Howes, 81 Mich. 396, 401, 45 N. W. 961; Burton v. State, 107 Ala. 108, 18 So. 284; People v. Siemsen, 153 Cal. 387, 95 Pac. 863; Draughn v. State, 76 Miss. 574, 25 So. 153; Commonwealth v. Antaya, 184 Mass. 326, 68 N. E. 331; State v. Berberick (Mont. 1909), 100 Pac. 209; State v. Blodgett, 50 Ore. 329, 92 Pac. 820; State v. Sherman, 35 Mont. 512, 90 Pac. 981, 119 Am. St. 869; Hintz v. State, 125 Wis. 405, 104 N. W. 110; State v. Landers, 21 S. Dak. 606, 114 N. W. 717; State v. Stibbens, 188 Mo. 387, 87 S. W. 460. It is the duty of the court to hear all the preliminary evidence before deciding to admit or reject the confession. Feople v. Rogers, 192 N. Y. 331, 85 N. E. 135, and Underhill on Ev., § 89. And the court may and perhaps should, on request, examine the witnesses on this point, out of the hearing of the jurors. Anderson v. State, 72 Ga. 98; State v. Kinder, 96 Mo. 548, 550, 10 S. W. 77; State v. Kelly, 28 Ore. 225, 42 Pac. 217, 52 Am. St. 777; Holland v. State, 39 Fla. 178, 22 So. 298. It has been held error not to determine this before the confession is submitted to the jury. Smith v. State, 88 Ga. 627, 629; Ellis v. State, 65 Miss. 44, 47, 3 So. 188, 7 Am. St. 634; King v. State, 40 Ala. 314; Brown v. State, 71 Ind. 470, 473: Nolen v. State, 8 Tex. App. 585; Commonwealth v. Culver, 126 Mass. 464, 466. 13a Zuckerman v. People, 213 Ill 114, 72 N. E. 741. 14 Jones v. State (Ala.), 47 So. 100. 15 Hopt v. People, 110 U. S. 574, 583, 28 L. ed. 262, 4 Sup. Ct. 202, 207. |