the evidence whether it was or was not free and voluntary and that if they believe from all the evidence that it was induced by threats or promises, or was not free and voluntary, they must reject it from their consideration, though they may believe it to be true.16

§ 127. Burden of proof to show voluntary character.-The cases are not harmonious upon the question whether the prosecution has the burden of proof to show the free and voluntary character of the confession. Many of the cases sustain the affirmative of this proposition, and require the state to show before the confession is received in evidence by some evidence that it was freely and voluntarily made." Other authorities sustain, at least in the absence of evidence to the contrary, the very reasonable theory that a confession, like most of the acts and utterances which are the result of human agency, is presumed to have been voluntary until the contrary is shown.18 This view casts the burden of

18 Commonwealth v. Preece, 140 Mass. 276, 5 N. E. 494; Commonwealth v. Piper, 120 Mass. 185, 188; People v. Barker, 60 Mich. 277, 298, 27 N. W. 539, I Am. St. 50in; Stallings v. State, 47 Ga. 572; Thomas v. State, 84 Ga. 613, 618, 10 S. E. 1016; People v. Kurtz, 42 Hun (N. Y.) 335, 345, 3 N. Y. St. 715; People v. Howes, 81 Mich. 396, 401, 45 N. W. 961; Wilson v. United States, 162 U. S. 613, 40 L. ed. 1090, 16 Sup. Ct. 895; People v. Cassidy, 133 N. Y. 612, 30 N. E. 1003, 44 N. Y. St. 869; Commonwealth v. Shew, 190 Pa. St. 23, 42 Atl. 377; Kennon v. State, 46 Tex. Cr. App. 359, 82 S. W. 518; State v. Foster, 136 Iowa 527, 114 N. W. 36; People v. White, 176 N. Y. 331, 68 N. E. 630; Johnson v. State, 49 Tex. Cr. App. 314, 94 S. W. 224; State v. Stebbens, 188 Mo. 387, 87 S. W. 460; Commonwealth v. Hudson, 185 Mass. 402, 70 N. E. 436; State v. Westcott, 130 Iowa 1, 104 N. W. 341; Clay v. State, 15

Wyo. 42, 86 Pac. 17, 544; State v.
Von Kutzleben, 136 Iowa 89, 113 N.
W. 484; Johnson v. State, 89 Miss.
773, 42 So. 606.

"People v. Soto, 49 Cal. 67; Peo-
ple v. Swetland, 77 Mich. 53, 60, 43
N. W. 779; Nicholson v. State, 38
Md. 140, 153; Barnes v. State, 36
Tex. 356, 363; State v. Johnson, 30
La. Ann. 881; Amos v. State, 83 Ala.
1, 3 So. 749, 3 Am. St. 682; Travers
v. United States, App. D. C. 450;
Johnson v. State, 48 Tex. Cr. App.
423, 88 S. W. 223; State v. Stallings,
142 Ala. 112, 38 So. 261; Jackson v.
State, 83 Ala. 76, 3 So. 847; Smith
v. State, 74 Ark. 397, 85 S. W. 1123;
State v. Storms, 113 Iowa 385, 85 N.
W. 610, 86 Am. St. 380.
See ex-
haustive note in 6 Am. St. 244, 245;
admission as affecting burden of
proof and right to open and close,
61 L. R. A. 562n.

18 Rufer v. State, 25 Ohio St. 464, 470; State v. Patterson, 73 Mo. 695, · 705; People v. Cassidy, 133 N. Y.

proving that the confession was involuntary upon the accused. In any case it is his right to show by preliminary evidence that the confession was not voluntary, and it is the duty of the court, in determining the competency of the confession, not only to consider the evidence for the state, showing the confession was voluntary, but the evidence elicited by the accused to prove the contrary in his favor as well.19

A refusal, before the confession is admitted, to allow counsel for the prisoner to cross-examine the witness as to the voluntary character of the confession;20 or to allow the accused to testify, and to explain his mental condition when it was made;21 or to

612, 613, 30 N. E. 1003, 44 N. Y. St. 869; State v. Howard, 35 S. Car. 197, 14 S. E. 481; Williams v. State, 19 Tex. App. 276; Commonwealth v. Culver, 126 Mass. 464, 465; Eberhart v. State, 47 Ga. 598, 608; State v. Davis, 34 La. Ann. 351, 353; Jenkins v. State, 119 Ga. 431, 46 S. E. 628; Sanchez v. State, 46 Tex. Cr. App. 179, 78 S. W. 504; Thurman v. State, 169 Ind. 240, 82 N. E. 64; State v. Armstrong, 203 Mo. 554, 102 S. W. 503; State v. Washing, 36 Wash. 485, 78 Pac. 1019; State v. Icenbice, 126 Iowa 16, 101 N. W. 273; Richardson v. State, 145 Ala. 46, 41 So. 82; Campbell v. State, 150 Ala. 70, 43 So. 743; Stoddard v. State, 132 Wis. 520, 112 N. W. 453; Braham v. State, 143 Ala. 28, 38 So. 919; Smith v. State, 142 Ala. 14, 39

So. 329.

19 State v. Fidment, 35 Iowa 541; Geiger v. State, 25 Ohio C. C. 742.

20 Rufer v. State, 25 Ohio St. 464, 471; State v. Miller, 42 La. Ann. 1186, 1188, 8 So. 309, 21 Am. St. 418; People v. Fiori, 123 App. Div. (N. Y.) 174, 185, 108 N. Y. S. 416; Willis v. State, 43 Neb. 102, 61 N. W. 254, 205; State v. Hill, 65 N. J. L. 626, 47 Atl. 814, 815; Roesel v. State, 62 N. J. L. 216, 41 Atl. 408; People

v. Fox, 121 N. Y. 449, 24 N. E. 923; People v. White, 176 N. Y. 331, 350, 68 N. E. 630.

21 Simmons v. State, 61 Miss. 243, 258; Jackson v. State, 83 Ala. 76, 78, 3 So. 847; Palmer v. State, 136 Ind. 393, 397, 36 N. E. 130; State v. Kinder, 96 Mo. 548, 10 S. W. 77, 78; Lefevre v. State, 50 Ohio St. 584. When a confession

588, 35 N. E. 52.
is offered by the state in a criminal
case, it is the right of the counsel
of the prisoner, before it is admitted,
to cross-examine the witness who
purposes to testify to it as to cir-
cumstances surrounding the making
of it, and the defense may also call,
at the same time, independent wit-
nesses and examine them, going thor-
oughly into the whole matter, as to
how the confession came to be made,
the parties present, the physical con-
dition and state of mind of the pris-
oner at the time it was made, and
then the court, with all these facts
before it, is to pass upon its admis-
sion. State v. Hill, 65 N. J. L. 626,
47 Atl. 814, 815. In Willis v. State,
43 Neb. 102, 61 N. W. 254, on page
255, it is said: "In the trial of a
criminal case, where the state calls
a witness for the purpose of proving
a confession made by the prisoner,

show by the evidence of others that it was improperly obtained, is reversible error.2 22

§ 128. Circumstances under which confession becomes involuntary. -It is very difficult, if not impossible, to lay down any general rule by which the amount or degree of duress or improper influence which will destroy the voluntary character of a confession can be regulated or measured.23

The statement that a confession which has been extorted by threats or procured by promises is not voluntary, and hence is inadmissible as likely to be untrue, is not difficult to understand. But it is very difficult to ascertain what language used to the prisoner would, under the particular circumstances of each case, constitute such a threat or promise. The sex, age, disposition, education, experience, character, intelligence and previous training of the prisoner are elements to be considered in determining whether the confession was or was not free and voluntary.24 For it is well known that a determined, courageous and experienced

before the witness is allowed to detail such information it is the privilege of defendant's counsel, and the better practice, to cross-examine the witness as to the circumstances under which the confession proposed to be detailed was given. Counsel cannot wait until the witness has answered and then move to strike the statement from the record if the answer is responsive to the inquiry."

"Commonwealth V. Culver, 126 Mass. 464, 466, 467. That the defendant may himself testify to the involuntary character of the confession, see State v. Kinder, 96 Mo. 548, 551, 10 S. W. 77; People v. Fiori, 123 App. Div. (N. Y.) 174, 185, 108 N. Y. S. 416. A witness who testifies to facts showing a confession was voluntary may be impeached by proof that on a prior occasion he had stated the contrary. State v. Peter, 14 La.

Ann. 521. When confession is voluntary, see note in 18 L. R. A. (N. S.) 758, 768.

23 In Hopt v. People, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. 202, the court says: "The admissibility of such evidence so largely depends upon the special circumstances connected with the confession that it is difficult, if not impossible, to formulate a rule that will comprehend all cases, as the question is necessarily addressed in the first instance to the judge, and since his discretion must be controlled by all attendant circumstances, the courts have wisely forborne to mark with absolute precision the limits of admission and exclusion.'

24 Williams v. State, 103 Ala. 33, 15 So. 662; State v. Fredericks, 85 Mo. 145; Cain v. State, 18 Tex. 387.

man is not so susceptible to threats, or to promises of immunity, as a feeble woman, or a person of weak intellect or will power.25

Aside from the circumstances of the accused as determining the voluntary nature of the confession, many things are held, as matter of law, to render a confession involuntary. Thus, if there is an express promise that a confession will benefit the accused, or a threat, though somewhat vague and indefinite in character, the confession will be involuntary. This was held in a case where the chief of police told the accused that he would go to the penitentiary and advised him that he had better confess, saying that it would do the accused good if he would admit that he was at the place of the crime. 26

So, also, confessions made while the accused is in bodily fear of his life, are involuntary, though it may be difficult, under the circumstances, to connect the fear with the confession; thus statements made by the accused while he was in custody, with a howling mob around him, are not admissible as confessions."

A statement made by the accused while or after bystanders were placing or had placed a rope around his neck and had threatened to hang him or had whipped him or otherwise physically ill-treated him, is involuntary, and inadmissible.28 So, it has been held that a confession made in reply to the charge by a police officer that the accused had been lying to him and that he had better tell the truth is inadmissible.29

So, where the father of the accused threatened the accused with a shotgun and said to him "You are my prisoner, I have a right to arrest you, you shall go and tell the sheriff, county attorney and coroner's jury all about the crime and you will get clear. If you don't, you will get convicted," it was held that the confession thus obtained was involuntary.30 And, though a witness in testifying to a confession swears that no promise or threat had been employed, it may be shown by other evidence that

Biscoe v. State, 67 Md. 6, 7, 8 82 S. W. 203; Jackson v. State, 50 Atl. 571. Tex. Cr. App. 302, 97 S. W. 312.

26 Maxwell v. State (Miss. 1906), 40 So. 615.

Bruner v. United States, 4 Ind. Ter. 580, 76 S. W. 244.

28 Edmonson v. State, 72 Ark. 585,

29 West v. United States, 20 App. D. C. 347.

30 State v. Force, 69 Neb. 162, 95 N. W. 42.

threats or promises were used sufficient to keep out the confession.31

§ 129. Confessions made while under arrest.—The mere fact that the defendant was under arrest, or was in the charge of armed police officers when he made his confession,32 or was handcuffed and chained,33 or tied,34 (if he is not tied in such a manner as