(1919) 15 Okla. Crim. Rep. 422, 177 England.-Rex v. Williams (1832) In Berry v. State (Okla.) supra, the court said: "While the greater number of cases hold the contrary, yet we think the proper rule is that, in the absence of a statute governing the matter, prima facie any confession is admissible in evidence." In State v. McNeal (1922) Mo. -, 237 S. W. 738, supra, where it was claimed that because defendant was retained in isolation or punishment hall for about ten days, and released from this place the next day after making a statement to the prosecuting attorney, the jury had the right to draw the inference that the statement was obtained in violation of defendant's legal right, the court said: "It cannot be presumed, in the absence of evidence on the subject, that the of ficers of the penitentiary violated the law or were guilty of wrongdoing in procuring the making of said statement." Cases apparently of the same tendency. In Smith v. State (1923) 158 Ark. 487, 250 S. W. 527, it was held that the statements of an accused are presumptively admissible. against him. "It is only when the showing is made that his statements were not voluntary, or that they were induced by fear or hope of favor, that they are inadmissible. Appellant did not ask to have that question submitted to the jury. Upon the contrary, he made no confession at all, according to his testimony and that of Moore." In Hendrickson v. People (1854) 10 N. Y. 13, 61 Am. Dec. 721, the court said: "The general rule is that all a party has said which is relevant to the questions involved in the trial is admissible in evidence against him." A somewhat similar statement is made in Murphy v. People (1876) 63 N. Y. 590. So, Woodford v. People (1875) 62 N. Y. 117, 20 Am. Rep. 464, is possibly open to the construction that confessions are prima facie admissible. Some exceptions in Missouri, In State v. Brockman (1870) 46 Mo. 566, it was said that "before any confession can be received in evidence in a criminal case, it must be shown that it was voluntary." But in State v. Patterson (1881) 73 Mo. 695, the court does not seem to assent to this proposition; and this case is cited in later Missouri cases as authority for the proposition that confessions are presumed to be voluntary. State v. Woodward (1902) 182 Mo. 391, 103 Am. St. Rep. 646, 81 S. W. 857, quotes at length from State v. Patterson (Mo.) supra, but does not seem very clear on the point. In State v. Thomas (1913) 250 Mo. 189, 157 S. W. 330, where a confession was sworn to before a notary public, and it was held that it was properly received in evidence, but the conviction was reversed on account of an instruction in regard to the confession, the court said: "As to whether a confession is presumed to be voluntary when signed and sworn to by defendant is a matter upon which the authorities are not in harmony; but as a party while under arrest is threats or violence, or the promise of reward or leniency." b. View that confessions are involuntary. Other cases declare that confessions are prima facie, or presumed to be, involuntary. Redd v. State (1881) 69 Ala. 255; Amos v. State (1887) 83 Ala. 1, 3 Am. St. Rep. 682, 3 So. 749; Jackson v. State (1887) 83 Ala. 76, 3 So. 847; Beckham v. State (1893) 100 Ala. 15, 14 So. 859; Bradford v. State (1893) 104 Ala. 68, 53 Am. St. Rep. 24, 16 So. 107; McAlpine v. State (1897) 117 Ala. 93, 23 So. 130; State v. Stallings (1904) 142 Ala. 112, 38 So. 261; Camp bell v. State (1907) 150 Ala. 70, 43 So. 743; Green v. State (1910) 168 Ala. 90, 53 So. 286 (arguendo); Lester v. State (1910) 170 Ala. 36, 54 So. 175; Godau v. State (1913) 179 Ala. 27, 60 So. 908 (arguendo); Kinsey v. State (1920) 204 Ala. 180, 85 So. 519; Rivers v. State (1923) 209 Ala. 140, 95 So. 393 (as stating the rule); Sample v. State (1911) 1 Ala. App. 89, 56 So. 30; Martin v. State (1911) 2 Ala. App. 175, 56 So. 64 (arguendo); Carr v. State (1920) 17 Ala. App. 539, 85 So. 852; Poarch v. State (1923) 19 Ala. App. 161, 95 So. 781; Gilbert v. State (1924) Ala. App. 100 So. 566; Brown v. State (1924) Ala. App. 101 So. 77. See also Whitehead v. State (1918) 16 Ala. App. 427, 78 So. 467; Nalls v. State (1923) 19 Ala. App. 146, 95 So. 591; Dudley v. State (1923) 19 Ala. App. 519, 98 So. 490; Motes v. State (1924) Ala. App. -, 101 So. 286. "Unless it plainly appears that it was free and voluntary-if there is a reasonable doubt against it being free or voluntary-it should be excluded from the jury." Ellis v. State (1887) 65 Miss. 44, 7 Am. St. Rep. 634, 3 So. 188. There is no presumption of law that a confession is voluntary. State v. Rogers (1914) 99 S. C. 504, 83 S. E. 971. The presumption as to statements made when the defendant is in custody is that they are not voluntary. Maki v. State (1911) 18 Wyo. 481, 33 L.R.A. (N.S.) 465, 112 Pac. 334. In Cook v. State (1918) 16 Ala. App. 390, 78 So. 306, the court enforced the rules that confessions are prima facie involuntary, and that the burden rests upon the state to show that the confessions were voluntary in the case of a confession made by an alleged accomplice in the presence of the defendant. III. Burden of proof. a. View that burden is on prisoner. Some cases hold that the burden of proof is on the prisoner to show that the confession was involuntary. United States. Murphy v. United States (1923) 285 Fed. 801, certiorari denied in (1923) 261 U. S. 617, 67 L. ed. 829, 43 Sup. Ct. Rep. 362. Hawaii.-King v. Paakaula (1867) 3 Haw. 30. Maine. State v. Grover (1902) 96 Me. 363, 52 Atl. 757, 12 Am. Crim. Rep. 128. Massachusetts.-Com. v. Sego (1878) 125 Mass. 210; Com. v. Culver (1879) 126 Mass. 464, 3 Am. Crim. Rep. 81 (arguendo); Com. V. Szczepanek (1920) 235 Mass. 411, 126 N. E. 847; COM. V. DASCALAKIS (reported herewith) ante, 113. See also Com. v. Bond (1897) 170 Mass. 41, 48 N. E. 756. Michigan. People v. Barker (1886) 60 Mich. 279, 1 Am. St. Rep. 501, 27 N. W. 539. Missouri.-State v. Hayes (1922) Mo., 247 S. W. 165. See also State v. Anderson (1888) 96 Mo. 241, 9 S. W. 636. North Carolina. State v. Sanders (1881) 84 N. C. 728; State v. Christy (1916) 170 N. C. 772, 87 S. E. 499. Ohio. Rufer v. State (1874) 25 Ohio St. 464. Oklahoma. Berry v. State (1910) 4 Okla. Crim. Rep. 202, 31 L.R.A. (N.S.) 849, 111 Pac. 676; Hembree v. State (1919) 15 Okla. Crim. Rep. 422, 177 Pac. 385; Mays v. State (1921) Okla. Crim. Rep. 197 Pac. 1064; Guthery v. State (1923) · Okla. Crim. Rep., 216 Pac. 948; Hix v. State (1925) Okla. Crim. Rep. Pac. 123. See also Wilson v. State (1919) 17 Okla. Crim. Rep. 47, 183 Pac. 613. 232 In Murphy v. United States (Fed.) supra, the court states: "Both counsel for defendants and the district Ohio cases. court labored under the erroneous impression that there was a presumption against a confession, that it was presumptively inadmissible, and that the government carried a heavy burden in establishing the voluntary character of such a statement, which burden was not met, if there was any evidence tending to impeach the statement of those who secured the statement. We do not understand such to be the law." And later in the opinion the court said: "It is first to be observed that the court erroneously cast upon the government the burden of proving the voluntary character of the statement." In King v. Paakaula (Haw.) supra, it is stated that the court regarded the rule to be that the burden of proof was on the prisoners to show that inducement had been held out to them to confess. In State v. Anderson (Mo.) supra, where it was claimed that confessions were made under fear of mob violence, it was said that, to exclude these confessions, it should appear that the defendant made them under the influence of fear. Massachusetts cases. Com. v. Tuckerman (1857) 10 Gray, 173, cited in the reported case (COM. v. DASCALAKIS, ante, 113) as authority for the propositions that a confession made is presumed to be voluntary, and the burden of proof is on one objecting to its admission, perhaps may inferentially have so held, but it is not very clear on the point. In Com. v. Sego, supra, where the accused while out on bail confessed to his employer, the court said: "Prima facie, all confessions are voluntary, and it is for the party objecting to their admission as evidence to show that they were uttered under such pressure of hope or fear as to raise a doubt of their accuracy." See also Com. v. Bond, supra. It will be seen that in the reported case (COM. v. DASCALAKIS) it is held that a confession made to a person in authority is presumed to be voluntary; the one objecting to its admission must show that it was made because of threats or promises. In Rufer v. State (1874) 25 Ohio St. 464, the court expressed the opinion that confessions "are presumed to be voluntary until the contrary is shown. Hence the burden of showing that such confessions were involuntary, rests upon the accused." But in Spears v. State (1853) 2 Ohio St. 584, it had been held that, before any confession can be received in evidence in a criminal case, it must be shown that it was voluntary. In Morrow v. State (1913) 34 Ohio C. C. 140, the court, while quoting and following Rufer v. State, supra (to the effect that the burden of showing that confessions were voluntary rests upon the accused), also makes the confusing statement that "in this state, at least, it is the recognized rule that before any confession can be received in evidence in a criminal case, it must appear that it was voluntarily made." And the court refers also to Spears v. State, supra. b. View that burden is on state. Confessions generally. There are a number of cases holding that the burden of proof is on the. prosecution to show that confessions are voluntary, in cases where it does not appear whether or not the confessions were made to persons in authority, or where it appears that the confessions were made to persons not in authority. Alabama. Bonner v. State (1876) 55 Ala. 242 (arguendo); Young v. State (1881) 68 Ala. 569 (to one of mob); McAlpine v. State (1897) 117 Ala. 93, 23 So. 130; Campbell v. State (1907) 150 Ala. 70, 43 So. 743. Arkansas.-Love v. State (1860) 22 Ark. 336 (arguendo; probably to a person not in authority). Louisiana.-State v. Young (1900) 52 La. Ann. 478, 27 So. 50, 12 Am. Crim. Rep. 154 (to mob); State v. Doiron (1922) 150 La. 550, 90 So. 920. Maryland.-Watts v. State (1904) 99 Md. 30, 57 Atl. 542. Mississippi.-Johnson v. State (1914) 107 Miss. 196, 51 L.R.A. (N.S.) 1183, 65 So. 218; White v. State (1922) 129 Miss. 182, 24 A.L.R. 699, 91 So. 903 (mob). New Mexico. State v. Martinez (1924) N. M. 230 Pac. 379 (where it does not appear whether the confession was to a person in authority or not). South Carolina. State v. Rogers (1914) 99 S. C. 504, 83 S. E. 971 (where it does not appear whether the confession was to a person in authority or not). Texas.-Cain v. State (1857) 18 Tex. 387 (where it does not appear whether the confession was to a person in authority or not). "Confessions of guilt shall not be received against a prisoner, until it is first affirmatively shown that they were made voluntarily. They are prima facie inadmissible and the onus rests on the prosecution to repel the imputation of undue influence." Bonner v. State (Ala.) supra (arguendo; witnesses not in authority). When a confession is offered, and objections made, it is the burden and duty of the state to show the circumstances under which it was made; that is, that it was voluntary. State v. Doiron (La.) supra, where the confession was made to a doctor. In Johnson v. State (Miss.) supra, it was said, in excluding a confession made to a newspaper reporter, that "it has been held by this court that a confession should not be admitted if there is a reasonable doubt as to whether it was freely and voluntarily made." "Before evidence of a confession can be admitted, it devolves on the prosecution to satisfy the court that it was voluntarily made by the prisoner." Cain v. State (Tex.) supra, where the court said, also: "The confessions of the prisoner having gone to the jury, it was competent for him to prove threats of personal violence in his presence and hearing; and it was for the state then to show that they were not made at a time and under circumstances to induce the confession. For, as it must appear affirmatively that the confession was voluntary, the burden of proving that fact was upon the prosecution, not upon the prisoner, as the ruling of the court, as disclosed by the bill of exceptions, supposes." If there is a reasonable doubt of the freedom and voluntariness of a confession, the doubt must be resolved against its admissibility. Machen v. State (1917) 16 Ala. App. 170, 76 So. 407, where it was held that the court erred in admitting the statements of the defendant. Confessions to persons in authority. Cases holding that, before a confession can be received in evidence, it must first be shown that it was voluntary, are here taken as holding that the burden of proof is on the prosecution to show that the confession was voluntary, unless there is something to indicate that such was not the meaning. It has been held in numerous cases where the confessions appear to have been made to persons in authority, that the burden was upon the prosecution to prove that the confessions were voluntary. United States.—Sorenson v. United States (1906) 74 C. C. A. 468, 143 Fed. 820; Harrold v. Oklahoma (1909) 94 C. C. A. 415, 169 Fed. 47, 17 Ann. Cas. 868; Johnstone v. United States (1924) 1 F. (2d) 928. Alabama.-Wyatt v. State (1854) 25 Ala. 9; Brister v. State (1855) 26 Ala. 107; Miller v. State (1866) 40 Ala. 56; Jackson v. State (1887) 83 Ala. 76, 3 So. 847; Banks v. State (1887) 84 Ala. 430, 4 So. 382; Lester v. State (1910) 170 Ala. 36, 54 So. 175 (to sheriff). Arkansas. - Smith v. State (1905) 74 Ark. 397, 85 S. W. 1123 (arguendo). California. People v. Castro (1899) 125 Cal. 521, 58 Pac. 133; People v. Miller (1901) 135 Cal. 69, 67 Pac. 12, 12 Am. Crim. Rep. 183; People v. Loper (1910) 159 Cal. 6, 112 Pac. 720, Ann. Cas. 1912B, 1193; People v. Ferdinand (1924) Cal. 229 Pac. 341 (arguendo; probably to officer); People v. Burns (1915) 27 Cal. App. 227, 149 Pac. 605 (arguendo); People v. Haney (1920) 46 Cal. App. 317, 189 Pac. 338 (arguendo); People v. Reed (1924) Cal. App. —, 228 Pac. 361. Illinois. See People v. Spranger (1924) 314 Ill. 603, 145 N. E. 706. Louisiana. State v. Nelson (1848) 3 La. Ann. 497; State v. Garvey (1873) 25 La. Ann. 191; State v. Garvey (1876) 28 La. Ann. 925, 26 Am. Rep. 123; Morris v. Bienvenu (1878) 30 La. Ann. 878; State v. Auguste (1898) 50 La. Ann. 488, 23 So. 612; State v. Berry (1898) 50 La. Ann. 1309, 24 So. 329 (arguendo); State v. Alexander (1903) 109 La. 558, 33 So. 600, 12 Am. Crim. Rep. 102, Maryland. Nicholson V. State (1873) 38 Md. 140 (arguendo); Green v. State (1903) 96 Md. 384, 54 Atl. 104, 12 Am. Crim. Rep. 149 (arguendo); Robinson v. State (1921) 138 Md. 137, 113 Atl. 641 (arguendo); McCleary v. State (1914) 122 Md. 394, 89 Atl. 1100. See also Biscoe v. State (1887) 67 Md. 6, 8 Atl. 571. Mississippi.-Ellis v. State (1887) 65 Miss. 44, 7 Am. St. Rep. 634, 3 So. 188 (where it does not appear whether a confession was made to a person in authority or not); Lee v. State (1924) -Miss., 102 So. 296 (arguendo); Hathorn v. State (1925) Miss. 102 So. 771. See also Simmons v. State (1883) 61 Miss. 243; Mitchell v. State (1898) - Miss. 24 So. 312. Nebraska.-Ballard v. State (1886) 19 Neb. 609, 28 N. W. 271; Jones v. State (1914) 97 Neb. 151, 149 N. W. 327; Cheney v. State (1917) 101 Neb. 461, 163 N. W. 804; Bush v. State (1924) Neb. 199 N. W. 792 (arguendo). Nevada.-State v. Wilson (1916) 39 Nev. 298, 156 Pac. 929. New Jersey. Roesel v. State (1898) 62 N. J. L. 216, 41 Atl. 408 (arguendo); State v. Young (1902) 67 N. J. L. 223, 51 Atl. 939 (arguendo). New Mexico. State v. Ascarate (1915) 21 N. M. 191, 153 Pac. 1036 (arguendo). See also State v. Armijo (1913) 18 N. M. 262, 135 Pac. 555. South Carolina.-See State v. Moorman (1887) 27 S. C. 22, 2 S. E. 621 (arguendo). Utah.-State v. Wells (1909) 35 Utah, 400, 136 Am. St. Rep. 1059, 100 Pac. 681, 19 Ann. Cas. 631 (arguendo). Virginia.--Thompson v. Com. (1870) 20 Gratt. 724 (arguendo); Jackson v. Com. (1914) 116 Va. 1015, 81 S. E. 192. Wyoming.-Maki v. State (1911) 18 Wyo. 481, 33 L.R.A. (N.S.) 465, 112 Pac. 334. England. Reg. v. Warringham (1851) 2 Den. C. C. 447, note; Reg. v. Thompson [1893] 2 Q. B. 12; Reg. v. Rose (1898) 14 Times L. R. 213, 11 Am. Crim. Rep. 275—C. C. R.; Ibrahim v. Rex [1914] A. C. 599-J. C. P. C. (arguendo); Rex v. Voisin [1918] 1 K. B. 531, 1 A.L.R. 1298-C. C. A. (arguendo). Canada.-Rex v. Tuddy (1905) 38 N. S. 136 (arguendo); Rex v. Benjamin (1917) Rap. Jud. Quebec 53 C. S. 160, 41 D. L. R. 388; Reg. v. McDonald (1896) 3 Terr. L. Rep. 1; Reg. v. Pah-cah-pah-ne-capi (1897) 4 Can. Crim. Cas. 93; Rex v. Royds (1904) 10 B. C. 407, 8 Can. Crim. Cas. 209; Rex v. Kay (1904) 9 Can. Crim. Cas. 403; Rex v. Bruce (1907) 12 Can. Crim. Cas. 275 (arguendo); Rex v. Read (1921) 36 Can. Crim. Cas. 200, 62 D. L. R. 363. See also Rex v. Bogh Singh (1913) 21 Can. Crim. Cas. 323, 12 D. L. R. 626; Rex v. De Mesquito (1915) 24 Can. Crim. Cas. 407, 26 D. L. R. 464; Rex v. Hughes (1920) 35 Can. Crim. Cas. 103; Rex v. Gauthier (1921) 29 B. C. 401 (arguendo). See also Osler, J., in Rex v. Ryan (1905) 9 Ont. L. Rep. 137, 4 Ann. Cas. 875. The same rule was applied in the case of an application for extradition. Re Ockerman (1898) 2 Can. Crim. Cas. 262. In Johnstone v. United States (1924) 1 F. (2d) 928, supra, where the defendant objected to testimony of statements made to officers by her after her arrest, the court said: "Inasmuch as these statements were made to public officers while the plaintiff in error was under-arrest and in custody, it was incumbent on the government to prove that the statements were freely and voluntarily made." "Before any confession of a defendant can be offered in evidence, it must be shown by the prosecution that it was voluntary, and made without any previous inducement or by reason of any intimidation or threat." People v. Miller (1901) 135 Cal. 69, 67 Pac. 12, 12 Am. Crim. Rep. 183; People v. Loper (1910) 159 Cal. 6, 112 Pac. 720, Ann. Cas. 1912B, 1193. To the same effect, |