to produce pain or extort a confession), or in prison,35 will not make a confession involuntary. But the confession of a prisoner, a boy eighteen years of age, made while he was in the hands of a large armed mob which had placed a rope about his neck, was rejected as involuntary. 36 The practice of taking the accused immediately after his arrest before the prosecuting attorney and then and there obtaining a confession from him is not to be commended. Any confession made under such circumstances, however, is not inadmissible if it is voluntary.37 The prosecuting attorney is not a magistrate, and the hearing 876, 17 S. E. 297; State v. Patterson, 73 Mo. 695, 707. 35 Commonwealth V. Smith, 119 Mass. 305, 311; People v. Rogers, 18 N. Y. 9, 14, 72 Am. Dec. 484; Murphy v. People, 63 N. Y. 590, 597; Ward v. People, 3 Hill (N. Y.) 395; Cox v. People, 80 N. Y. 500, 515, 19 Hun (N. Y.) 430, 436. If by statute a confession is inadmissible because at the time the defendant is in jail, it is immaterial that he is confined for another crime than that then being tried. Neiderluck v. State, 21 Tex. App. 320, 328, 17 S. W. 467; Nicks v. State, 40 Tex. Cr. App. 1, 48 S. W. 186. The fact that the prisoner was held without process, or otherwise in illegal custody, does not exclude the confession. Balbo v. People, 80 N. Y. 484, 499, 19 Hun (N. Y.) 424; State v. Carpenter, 32 Wash. 254, 73 Pac. 357; Green v. State, 40 Fla. 191, 23 So. 851. 36 State v. Young, 52 La. Ann. 478, 27 So. 50; State v. Revells, 34 La. Ann. 381, 384, 44 Am. 436. A deputy marshal may testify to a voluntary confession. Perovich V. United States, 205 U. S. 86, 51 L. ed. 722, 27 Sup. Ct. 456. The confession of the accused made while he is in jail to another prisoner who is also in the same jail, and before whom the accused was brought that he might be identified, was received in Clay v. State, 15 Wyo. 42, 86 Pac. 17. "The fact that the prisoner was tied during his preliminary examination would not in itself constitute a valid objection to the evidence, unless it appeared that he was tied in such a manner as to produce pain, or to tend to induce or extort from him a confession. State v. Cruse, 74 N. Car. 491. We do not commend the practice, however, if such there be, of keeping the prisoner shackled or tied while before the committing magistrate on the preliminary examination. The law should be the same there as upon the trial. The dictates of humanity would require that, unless there should be some strong reason to the contrary, he should be freed from such physical restraint." State v. Rogers, 112 N. Car. 874, 17 S. E. 297. 37 State v. Stibbens, 188 Mo. 387, 87 S. W. 460. before him is not a judicial hearing under a statute which entitles the accused to counsel and a warning.38 The suspicious character of a confession thus procured may be modified, if not wholly removed, when the accused is advised, at the hearing before the prosecuting attorney, of his right to counsel and to remain silent. and is warned that his statements may be used against him.39 The same rule applies to all statements made by the accused after his arrest to persons having him in custody, for, however strong the testimony of the police officials is that a confession was free and voluntary, a suspicion and a doubt of its voluntary character remain which persist until it shall be clearly shown that the accused was not threatened and that he was fully advised of hist rights. The evidence showing that he was advised of his rights ought, under such circumstances, to be affirmative, for in spite of the presumption that every one knows the law, it must be shown that the accused was warned and that he was informed as to his legal rights to remain silent while under arrest.*° § 130. Effect of cautioning the accused.-Aside from statute the fact that a confession, which is otherwise admissible, is made without the accused having been cautioned by the court or by the person to whom the confession is made that what he says may be used against him, does not render it incompetent."1 41 The statute in Texas requires that the accused shall be cautioned, and a confession made while the prisoner is in jail, in custody, or under arrest, is inadmissible where it is not shown that the accused was cautioned that what he said might be used against him unless the fruits of the crime are discovered in pursuance of and as a result of the confession.* 39 People v. Randazzio, 194 N. Y. 147, 87 N. E. 112. 42 State, 46 Tex. Cr. App. 461, 80 S. W. 1008; McDaniel v. State, 46 Tex. Cr. State v. Berberick (Mont.), 100 App. 560, 81 S. W. 301; Vaughn v. State, 51 Tex. Cr. App. 180, 101 S. W. 445. Pac. 209. 40 Daniels v. State (Fla.), 48 So. 747. 42 Curry v. State, 50 Tex. Cr. App. 158, 94 S. W. 1058; Vaughn v. State, 51 Tex. Cr. App. 180, 101 S. W. 445; McKinney v. State, 40 Tex. Cr. App. 372, 50 S. W. 708; Morales v. State, 36 Tex. Cr. App. 234, 36 S. W. 435, 846; Alanis v. State (Tex. Cr. App.), 81 S. W. 709; Black v. State, 46 Tex. The fact that the accused is cautioned that what he says will be committed to writing and may or might be used on his trial as evidence against him, does not render a voluntary confession inadmissible. 43 Under the Texas statute not only must the accused be cautioned, but it must appear from the evidence that the confession was made within such a time after the caution was given that its effect had not disappeared from the mind of the accused. The length of the period required depends upon the facts and circumstances of each case and is a question for the court. The effect of the caution will be presumed to continue for a reasonable period, and a confession made a day or two after the caution or warning was given has been accepted.45 As to the language to be used in cautioning the accused, it is not necessary that the words of the statute shall be precisely followed. The simplest and plainest language is advisable. Any language conveying to his mind the fact that the statement he makes incriminating himself may or will be offered in evidence against him at his trial is usually sufficient.* But a warning that anything he may say can be used either for or against him does not comply with the statute, and renders the confession inadmissible." Cr. App. 590, 81 S. W. 302; White v. State (Tex. Cr. App.), 38 S. W. 169. 43 Reg. v. Holmes, 1 C. & K. 248, I Cox Cr. Cas. 9; Reg. v. Attwood, 5 Cox Cr. Cas. 322, 323; Calloway v. State, 103 Ala. 27, 15 So. 821; Maples v. State, 3 Heisk. (Tenn.) 408, 411, 413; State v. Church, 199 Mo. 605, 98 S. W. 16; Rizzolo v. Commonwealth, 126 Pa. St. 54, 72, 17 Atl. 520; Commonwealth v. Johnson, 217 Pa. 77, 66 Atl. 233; United States v. Kirkwood, 5 Utah 123, 13 Pac. 234; State v. Carr, 37 Vt. 191. 44 Binkley v. State, 51 Tex. Cr. App. Kirby v. State, 23 Tex. App. 13, 5 S. 54, 100 S. W. 780. W. 165. So generally his conduct indicating guilt occurring after he has been cautioned is not admissible. Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750. Generally, unless there is ar 48 If it plainly appear that a confession is voluntary, it is not necessary, at least in the absence of suspicious circumstances, to prove that from the moment of the prisoner's arrest to that of his confession no improper inducement was offered. A voluntary confession will be received, though it may appear that immediately after his apprehension the accused had been threatened, but without effect, in order to procure a confession. It must be shown that the promise or threat has been withdrawn. Even though an original confession may have been obtained by such means as will exclude it, a subsequent confession of the same or of like facts may and should be admitted, if the court shall believe from the length of time intervening, or from any other facts in evidence, that the improper influence has been removed.50 The influence of the threat or promise under which the first confession has been made and because of which the confession will be excluded will be presumed to continue to the time of a subsequent confession unless it is affirmatively shown to have been removed. This presumption must be overcome before the express statute requiring a caution, 49 McAdory v. State, 62 Ala. 154; Sarah v. State, 28 Ga. 576; State v. Chambers, 39 Iowa 179; Walker v. State, 7 Tex. App. 245, 263, 32 Am. 395; State v. Jones, 54 Mo. 478, 480; People v. Jim Ti, 32 Cal. 60, 63; State v. Potter, 18 Conn. 166, 179; Commonwealth v. Howe, 132 Mass. 250; Commonwealth v. Crocker, 108 Mass. 464; Lynes v. State, 36 Miss. 617; People v. MacKinder, 80 Hun (N. Y.) 40, 29 N. Y. S. 842, 9 N. Y. Cr. 267; Moore v. Commonwealth, 2 Leigh (Va.) 701; State v. Gregory, 50 N. Car. 315. "State v. Guild, 10 N. J. L. 163, 18 Am. 404; Simon v. State, 36 Miss. 636, 639; Hardy v. United States, 3 App. D. C. 35; State v. Carr, 37 Vt. 191, 195; United States v. Nardello, 4 Mackey D. C. 503; State v. Hash, 12 La. Ann. 895, 896; Levison v. State, 54 Ala. 520; State v. Willis, 71 Conn. 293, 41 Atl. 820; State v. Foster, 136 Iowa 527, 114 N. W. 36; Dixon v. State, 116 Ga. 186, 42 S. E. 357; Andrews v. People, 33 Colo. 193, 79 Pac. 1031; State v. Howard, 17 N. H. 171; State v. Fisher, 51 N. Car. 478; Jackson v. State, 39 Ohio St. 37; Thompson v. Commonwealth 20 Gratt. (Va.) 724. 61 State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404; Williams v. State, 69 Ark. 599, 65 S. W. 103, 105; State v. Lowhorne, 66 N. Car. 638; State v. Hash, 12 La. Ann. 895, 986; State v. Drake, 82 N. Car. 592; Murray v. State, 25 Fla. 528, 6 So. 498; State v. Brown, 73 Mo. 631; Robinson v. People, 159 Ill. 115, 42 N. E. 375; later confession can be received as evidence. And evidence to overcome or rebut it must be clear, strong and satisfactory.52 § 131. Confessions under oath.-The admissions or incriminating statements of the accused are not to be rejected solely because they were made under oath. A distinction is made between declarations made under oath before the accused was arrested, or before suspicion attached to him, and declarations made subsequently to his arrest. The former, though in fact confessions, are not rejected. Thus the testimony of the accused, if it was voluntarily given as a witness on a prior trial of himself;53 or Commonwealth v. Knapp, 10 Pick. (Mass.) 477, 486, 20 Am. Dec. 534; Thompson V. Commonwealth, 20 Gratt. (Va.) 724, 731; Commonwealth v. Harman, 4 Fa. 269; Simon v. State, 37 Miss. 288, 295; Coffee v. State, 25 Fla. 501, 512, 6 So. 493, 23 Am. St. 525; Redd v. State, 69 Ala. 255, 260; State v. Jones, 54 Mo. 478, 480; State v. Chambers, 39 Iowa 179; State v. Drake, 82 N. Car. 592; State V. Wintzingerode, 9 Ore. 153; Thompson v. Commonwealth, 20 Gratt. (Va.) 724; United States v. Chapman, 4 Am. Law J. (N. S.) 440, 25 Fed. Cas. 14783; Reason v. State (Miss. 1909), 48 So. 820; State v. Wood (La. 1909), 48 So. 438. 52 Porter V. State, 55 Ala. 95; Commonwealth v. Cullen, III Mass. 435, 437; State v. Lowhorne, 66 N. Car. 638; State v. Carr, 37 Vt. 191, 195; Commonwealth V. Phillips, (Ky.), 82 S. W. 286, 26 Ky. L. 543; Mathis v. Commonwealth (Ky.), 13 S. W. 360, II Ky. L. 882; State v. Washington, 40 La. Ann. 669, 4 So. 864; State v. Drake, 113 N. Car. 624, 628, 18 S. E. 166; Reg. v. Doherty, 13 Cox C. C. 23. It is a well-settled rule that if promises or threats have been used, it must be made to appear that their influence has been entirely done away with before subsequent confessions can be deemed voluntary and therefore admissible. State v. Drake, 113 N. Car. 624, 628, 18 S. E. 166, and see Coffee v. State, 25 Fla. 501, 512, 6 So. 493, 23 Am. St. 525, for a full citation of cases. It is sufficient to exclude the latest confession if it may have proceeded from prior existing motives. Commonwealth v. Cullen, III Mass. 435, 437. 53 People v. McMahon, 15 N. Y. 384, 392; Commonwealth v. Reynolds, 122 Mass. 454, 458; Williams v. Commonwealth, 29 Pa. St. 102, 110; People v. Kelley, 47 Cal. 125; Dickerson v. State, 48 Wis. 288, 293, 4 N. W. 321; State v. Oliver, 55 Kan. 711, 41 Pac. 954; State v. Campbell, 73 Kan. 688, 85 Pac. 784, 788, 9 L. R. A. (N. S.) 533n; Miller v. People, 216 Ill. 309, 74 N. E. 743; State v. Finch, 71 Kan. 793, 81 Pac. 494 (testimony at coroner's inquest). See notes in 41 Am. St. 522-524, 18 L. R. A. (N. S.) 872. In State v. Broughton, 7 Ired. (N. Car.) 96, 45 Am. Dec. 507, which is quoted with approval in State v. Campbell, 73 Kan. 688, 85 Pac. 784, on p. 788, 9 L. R. A. (N. S.) 533n, the court said, the accused having testified before the grand jury that had indicted him, “The coun |