humorous intention, while he was intoxicated, and when he has done this, the prosecution may prove by witnesses who overheard him speaking that he appeared to be perfectly sincere while speaking." 97 § 137. Admissions receivable though involuntary.—The rule that a confession procured by a threat or a promise is inadmissible does not apply to admissions not involving the existence of a criminal intent,99 if the influence exerted did not amount to duress, or to an illegal and undue degree of compulsion.100 Some cases hold that it is not material that the involuntary admission, when connected with other evidence, proves, or tends to prove, the guilt of the defendant. So long as it does not, taken by itself, directly admit or suggest his guilt, that it was voluntary in its character need not be shown. But the cases are not harmonious, and it seems logical that all the declarations of the defendant from which guilt may be inferred should come under the rule.2 "Horn v. State, 12 Wyom. 80, 73 S. W. 235; Burgess v. State, 148 Ala. Pac. 705. 654, 42 So. 681. 96 An admission as applied to a criminal case is a statement of defendant of facts pertinent to the issues and tending in connection with proof of other facts to prove his guilt, but which of itself is insufficient to authorize conviction. Ransom v. State, 4 Ga. App. 826, 59 S. E. 101. People v. Hickman, 113 Cal. 80, 45 Pac. 175; McLain v. State, 18 Neb. 154, 161, 24 N. W. 720; Underhill on Ev., § 75; People v. Stokes, 5 Cal. App. 205, 89 Pac. 997; Fuller v. State, 127 Ga. 47, 55 S. E. 1047; Hutchinson v. State (Ga. App.), 63 S. E. 597; Watson v. State, 52 Tex. Cr. App. 85, 105 S. W. 509; People v. Jan John, 144 Cal. 284, 77 Pac. 950; People v. Moran, 144 Cal. 48, 77 Pac. 777; People v. Weber, 149 Cal. 325, 86 Pac. 671; People v. Scalamiero, 143 Cal. 343, 76 Pac. 1098; State v. Barrington, 198 Mo. 23, 95 100 The rule in civil cases that admissions made to bring about a.compromise are inadmissible does not apply in criminal cases. State v. Soper, 16 Me. 293, 295, 33 Am. Dec. 665; State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 L. R. A. (N. S.) 533n; Richburger v. State, 90 Miss. 806, 44 So. 772. Contra, Mill v. State, 3 Ga. App. 414, 60 S. E. 4. Admissibility of confessions, see note in 73 Am. St. 942-946. 1 1 People v. Velarde, 59 Cal. 457; State v. Red. 53 Iowa 69, 74, 4 N. W. 831; People v. Parton, 49 Cal. 632; Ferguson v. State, 31 Tex. Cr. App. 93, 19 S. W. 901; People v. McCallam, 103 N. Y. 587, 596, 9 N. E. 502, 3 N. Y. Cr. 189, 5 N. Y. Cr. 143, 4 N. Y. St. 291, 25 Wkly. Dig. 210. 2 Marshall v. State, 5 Tex. App. 273, 293; Quintana v. State, 29 Tex. App. 401, 407, 16 S. W. 258, 25 Am. St. 730; Commonwealth v. Myers, § 138. When facts discovered admit parts of an involuntary confession. The main reason for rejecting confessions uttered under the influence of hope or fear is the great probability that the prisoner has been influenced by his expectation of punishment, or of immunity, to speak what is not true. If, however, the existence of extraneous facts is discovered through the statements of the accused, no reason exists for rejecting those parts of the confession which led to the discovery, and which, though not voluntarily made or obtained by improper means or for any reason inadmissible have been corroborated convincingly by the facts discovered. The proper order of proof is for the facts discovered to be proved, and then to receive as much of the confession as leads up to and as relates strictly to such facts.3 It is no objection to the proof of the facts which are discovered that their discovery was brought about by means of a confession.* 160 Mass. 530, 36 N. E. 481; Murphy v. People, 63 N. Y. 590, 596. In Rex v. Warickshall (1783), 1 Leach Cr. L. 298, 300, which is a leading case, the court said: "This principle respecting confessions has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exist at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false." This case also holds, though the modern rule is otherwise, that no part of the confession can be received, but the facts though obtained by a confession must be satisfactorily proved without divulging their source. Hence, it cannot be legally known whether the fact had been confessed or not. v. State, 78 Ga. 98, 6 Am. St. 238n; Sometimes, however, the order of proof has been reversed, and the court has allowed the language of the prisoner to be proved before receiving evidence of the facts discovered." Thus, for illustration, it may properly be proved in a prosecution for homicide that the victim's remains," or his clothing, or the weapon with which he was killed, were actually found at a particular time and place as the result of a statement by the accused which was itself inadmissible, as a confession. So, in a larceny trial, it may be proved that the stolen property was discovered as the result of an inadmissible confession; and then as much of the confession as disclosed the hiding place of the stolen property and whatever the accused said in conducting persons there or in pointing out or describing it, or which is in any way connected with the discovery is admissible, though these statements were the result of promises or threats." 139. Confessions procured by persons in authority.-A distinction is made by many of the cases between those confessions which are procured by threats made or promises offered by some person who is so related to the accused as to be able to exercise authority over him, and consequently had both the power and the opportunity to fulfill the threat or promise; and confessions made in response to promises by persons having no power whatever over the George, 15 La. Ann. 145; Walrath v. 327. 7 State v. Motley, 7 Rich. (S. Car.) State v. Willis, 71 Conn. 293, 41 Atl. 820; Spearman v. State, 34 Tex. Cr. App. 279, 30 S. W. 229. 9 Commonwealth v. James, 99 Mass. Duffy v. People, 5 Park. Cr. (N. Y.) 321, 26 N. Y. 588, 590; Reg. v. Gould, 9 C. & P. 364; Deathridge v. 438. State, 1 Sneed (Tenn.) 75, 80, 81; Jordan v. State, 32 Miss. 382. But in South Carolina the statements of the accused made where, by reason of threats, stolen property was recovered, have been rejected, although it was allowed to be proved that the stolen property had been found because the accused had pointed out its hiding place. State v. Middleton, 69 S. Car. 72, 48 S. E. 35. State v. Mortimer, 20 Kan. 93; Rector v. Commonwealth, 4 Ky. L. 323; State v. Garvey, 28 La. Ann. 925, 26 Am. 123; Belote v. State, 36 Miss. 96, 72 Am. Dec. 163; Fielder v. State, 40 Tex. Cr. App. 184, 49 S. W. 376; Banks v. State, 84 Ala. 430, 4 So. 382; State v. Winston, 116 N. Car. 990, 21 S. E. 37. prisoner, and, consequently, unable to perform what they promised to do. In the former case it was conclusively presumed that the confession was forced and involuntary.10 Hence, where the inducement to confess proceeded from the prosecuting witness, or his wife, or from the district attorney, or some member of a coroner's jury, or from a police officer or magistrate, the confession was rejected as presumably extorted by fear or prompted by hope of immunity. Upon the question whether any presumption was to be recognized where a confession was made in response to a promise or threat by one having no power whatever over the prisoner, and who was, for that reason, unable to fulfill the threat or promise, the authorities are divided. Some of the cases hold that a threat or promise made by such a person creates a conclusive presumption that the confession was not free and voluntary." But other authorities hold, and these perhaps are in the majority, that the threat or promise must proceed from some one in authority, and who has the power to carry it into execution, or it must be made in the presence and with the implied approval of such a person, to justify the court in drawing an inference that the confession was involuntary." These distinctions, however, when tested by the actual circumstances of each case, prove of very little value. The question always is, was the will of the prisoner actually subjugated and overcome, so that the confession is not the free product of his own will but forced from his lips by the superior will of another? This is a question of mixed law and fact, to be answered by the 10 State v. Carson, 36 S. Car. 524, 532, 15 S. E. 588; Clayton v. State, 31 Tex. Cr. App. 489, 21 S. W. 255; Hoober v. State, 81 Ala. 51, I So. 574; State v. Spaugh, 200 Mo. 571, 98 S. W. 55; People v. Thompson, 84 Cal. 598, 24 Pac. 384; Green v. State, 88 Ga. 516, 15 S. E. 10, 30 Am. St. 167n; Collins V. Commonwealth (Ky.), 25 S. W. 743, 15 Ky. L. 691; Commonwealth v. Myers, 160 Mass. 530, 36 N. E. 481; State v. York, 37 N. H. 175; People v. McMahon, 15 N. Y. 384. Exhaustive notes on con court or the jury according to the facts and circumstances of each particular case. No presumption should be recognized based upon the official position of the person who heard the confession, though this may be taken into consideration with the other facts. Doubtless the fact that the person who obtained a confession by the use of a promise or a threat did not possess the power and authority to carry either into effect, if known to the prisoner at the time of making the confession, would nullify the effect intended to be produced upon his mind, and the confession would be regarded as his free act.13 14 § 140. Confessions need not be spontaneous.-A confession, in other respects admissible, is not inadmissible because it is not the spontaneous utterance of the prisoner. The fact that the confession was obtained by the employment of persistent questioning does not alone exclude it,1* but the practice of eliciting a confession by putting question after question to the accused is clearly not conducive to the procurement of truth, and the mode in which the confession was elicited may always be considered by the jury to determine whether they shall believe it. This is well illustrated by the methods employed by police officers and other in practicing upon the accused after his arrest what is known in police circles as the "third degree." This usually consists in subjecting the accused, after his arrest and while in custody, to a continuous and rigid examination accompanied with intimidation by threats and other means. The length of this 13 Commonwealth v. Tuckerman, 10 promise made by a person who interGray (Mass.) 173, 190; State v. Fort- feres without any authority of this ner, 43 Iowa 494; McAdory v. State, kind is not to be presumed to have 62 Ala. 154, 161; Ulrich v. People, such an effect on the mind of the 39 Mich. 245, 250; Underhill on Evi- prisoner as to induce him to confess dence, p. 136. In 3 Russell on that he is guilty of a crime of which Crimes, p. 393, the author says: he is innocent." People v. Piner "The result of the cases seems to be, (Cal. App., 1909), 105 Pac. 780. that a confession is not inadmissible, 14 State v. Penney, 113 Iowa 691, 84 although made after an exhortation, N. W. 509; Young v. State, 90 Md. or admonition, or other similar influ- 579, 45 Atl. 531; Cox v. People, 80 ence, proceeding at a prior time from N. Y. 500; Aiken v. State (Tex.), some one who has nothing to do with 64 S. W. 57; Tidwell v. State, 40 the apprehension, prosecution or ex- Tex. Cr. App. 38, 47 S. W. 466, 48 amination of the prisoner; for a S. W. 184; United States v. Matthews, 26 Fed. Cas. 15741b. |