Where the testimony was contradictory as to whether a statement made by the prisoners to officers was voluntary, the court said that, "because of the failure to show that the statement was voluntarily made, it should not have been received in evidence." People v. Spranger (1924) 314 Ill. 603, 145 N. E. 706.

"The well-settled rule of law is that only such confessions of the accused as have been voluntarily made, uninfluenced by either hope or fear, can be given in evidence against him, and they must be shown to have been thus made, before they can be received." State v. Nelson (1848) 3 La. Ann. 497. Where the superintendent of police stated that he could not swear that he had not offered inducements to defendant to make a declaration in writing, thereby leaving it in doubt whether or not inducements were offered to the defendant to make the declaration, it was held that the declaration was wrongfully admitted in evidence. State v. Garvey (1873) 25 La. Ann. 191.

Before a confession can be received in evidence it must be shown that it was voluntary. State v. Garvey (1876) 28 La. Ann. 925, 26 Am. Rep. 123, reversing a conviction where the trial judge had held that the onus was on the accused to prove that the admission had been procured by undue influences.

"The prosecution must show affirmatively that the confession was voluntary, and not made under improper influences." Morris V. Bienvenu (1878) 30 La. Ann. 878, citing State v. Nelson (1848) 3 La. Ann. 499.

In State v. Auguste (1898) 50 La. Ann. 488, 23 So. 612, the court said, in reversing a judgment on the ground that the confession in question, to officers, was not voluntary: "With regard to the question of proof to show that a confession was or was not voluntary, the rule is not that, in order to render a statement admissible, the proof must be adequate to establish that it was voluntarily made; but it is that it must be sufficient to establish that the making of the statement was

voluntary. See Bram v. United States (1897) 168 U. S. 532, 549, 42 L. ed. 568, 575, 18 Sup. Ct. Rep. 183, 10 Am. Crim. Rep. 547."

In State v. Alexander (1903) 109 La. 558, 33 So. 600, in reversing a conviction for the improper admission of evidence of a confession as not voluntary, the court stated that in State v. Auguste (1898) 50 La. Ann. 491, 23 So. 612, it was held, "as it had been held in State v. Nelson (La.) supra, that the prosecution must show affirmatively that the confession was voluntary, and not made under improper influences."

In Hathorn v. State (1925) Miss.

102 So. 771, it was held where the confession was made to an officer, that, before a confession is received in evidence, where it is objected to, it must be shown that it was free and voluntary, and, where objection is made, the proof that it was free and voluntary should precede the admission of the confession.

In Ellis v. State (1887) 65 Miss. 44, 7 Am. St. Rep. 634, 3 So. 188, where it does not appear whether the confession was made to a person in authority or not, it was said that "before a confession is received in evidence against the defendant in a criminal trial, it should be shown that it was voluntary; . . . if there is a reasonable doubt against it being free or voluntary; it should be excluded from the jury." Quoted, inter alia, arguendo, in Lee v. State (1924) — Miss.

102 So. 296, where a confession was made to an officer.

"Unless it plainly appears that a proposed confession was made in such manner as to make it competent evidence, it should not be received." Simmons v. State (1883) 61 Miss. 243. In Mitchell v. State (1898) Miss.

that the statements or confessions of a prisoner to one in whose custody he may be must be shown to be voluntary and without inducements held out by the officer, either of fear or hope, before they can be admitted in evidence." Before a statement made to persons in authority by defendant under arrest, charged with the offense, can be admitted in evidence, it is necessary to lay a foundation for its admissibility showing that it was voluntary. State v. Wilson (1916) 39 Nev. 298, 156 Pac. 929.

199

"A confession cannot be used as evidence, unless it is first shown that it was voluntarily made." Jones v. State (1914) 97 Neb. 151, 149 N. W. 327, followed in Cheney v. State (1917) 101 Neb. 461, 163 N. W. 804. The same rule was stated arguendo in Bush v. State (1924) - Neb. N. W. 792. "It is fundamental that in order for a confession to be admissible it must first be shown that in every respect it was freely and voluntarily made.' State v. Ascarate (1915) 21 N. M. 191, 153 Pac. 1036 (arguendo).

Before any confession is received it should be shown that it was voluntary. State v. Moorman (1887) 27 S. C. 22, 2 S. E. 621 (arguendo).

See also State v. Howard (1892) 35 S. C. 197, 14 S. E. 481, where the court said (arguendo): "Of course, the general rule relating to confessions is that the trial judge must be satisfied that the same is voluntary, not induced by fear or hopes improperly excited."

In State v. Wells (1909) 35 Utah, 400, 136 Am. St. Rep. 1059, 100 Pac. 681, 19 Ann. Cas. 631, the court said (arguendo): "We are of the opinion that, when evidence of the defendant's confession is offered by the state, it, on the defendant's objection, must first introduce some evidence tending to show that the confession was voluntary; that it is alone within the province of the court to determine, not whether the confession was or was not voluntary, but whether a sufficient prima facie showing, with respect to its voluntariness, is made to warrant a finding that it was voluntary."

"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority." Ibrahim v. Rex [1914] A. C. (Eng.) 599-J. C. P. C. Quoted, arguendo, in Rex v. Voisin [1918] 1 K. B. (Eng.) 531, 1 A.L.R. 1298-C. C. A.

In Reg. v. Rose (1898) 14 Times L. R. (Eng.) 213, where a conviction was quashed on account of the admission of a confession made by the prisoner to his employer, Lord Chief Justice Russell said that counsel and solicitors conducting prosecutions should remember that a confession by a prisoner, before it could be put in evidence, must be affirmatively proved to have been made voluntarily; and that they should be careful to make sure of their position in this respect when confessions of guilt formed part of the evidence on which they relied.

But the voluntary nature of a confession may appear from the circumstances. Thus in Heninburg v. State (1907) 153 Ala. 13, 45 So. 246, it was held that the voluntary nature of a confession may appear from the circumstances under which it was made, so as to make it on its face prima facie voluntary and admissible.

In Cox v. State (1923) 19 Ala. App. 205, 96 So. 83, it was held that while a confession is prima facie involuntary and inadmissible, when the facts and circumstances under which it was made affirmatively show that there were no improper influences proceeding from the person to whom it was made, or from any other person, or from the circumstances surrounding the defendant at the time it was made, such a confession is prima facie voluntary and admissible.

"Statements made by the defendant to an officer just after his arrest, with reference to the homicide with which he was charged, which are shown to have been made without any threats

or inducements on the part of the officer or anyone else present, are voluntary and admissible in evidence as confessions." Corbin v. State (1923) 19 Ala. App. 439, 98 So. 132, certiorari denied in (1923) 210 Ala. 369, 98 So. 134.

In People v. Rodriguez (1858) 10 Cal. 51, where a witness for the prosecution proved certain admissions made by the prisoner, it was held that there was no error in refusing to strike out the testimony: First, because the objection should have been made to its introduction; second, the facts stated showed prima facie that the confession was voluntary.

The burden is not on the state when the confession is not objected to, and where it does not appear on its face to be lacking in voluntariness.

So, it was held in People v. Long (1872) 43 Cal. 444, that the admission of a confession was not erroneous when it was not objected to when given. See also People v. Rodriguez (Cal.) supra.

"In the absence of timely objection from the accused, the court will not exclude evidence of an alleged confession, because preliminary proof was not offered on the part of the state to show that the confession was made freely and voluntarily, unless it appear from the evidence itself that the confession was obtained from the accused by means of promises or threats, or, in other words, that it was not voluntary." State v. Davis (1882) 34 La. Ann. 351. Followed in State v. Madison (1895) 47 La. Ann. 30, 16 So. 566.

Where a confession is admitted in evidence on preliminary proof, and, from the evidence afterwards brought forward, it is shown that the confession was not voluntary, the court should, on motion, withdraw it from the jury; but, in the absence of objection or motion by defendant to exclude it, the trial court will not be put in error for failure to exclude it on its own motion. Minton v. State (1924)

Ala. App. —, 101 So. 169.

The reader will understand that the fact that the burden of proof is on the state only applies in trial courts, and

that the burden of proof is against one appealing from a decision. Thus, on appeal the decision of the trial court that a confession was voluntary will be presumptively correct; that is to say, the burden will be on the person who attacks it. Price v. State (1897) 117 Ala. 113, 23 So. 691; Green v. State (1910) 168 Ala. 90, 53 So. 286; Allsup v. State (1916) 15 Ala. App. 121, 72 So. 599 (quoting from Whatley v. State (1906) 144 Ala. 68, 39 So. 1014); Curry v. State (1919) 203 Ala. 239, 82 So. 489 (arguendo).

On appeal the presumption will be indulged that a proper predicate was laid for the admission of a confession, unless the record affirmatively shows otherwise. Fortner v. State (1915) 12 Ala. App. 179, 67 So. 720; Caraway v. State (1924) Ala. App. - 101 So. 912.

See also People v. Fowler (1918) 178 Cal. 657, 174 Pac. 892; Roesel v. State (1898) 62 N. J. L. 216, 41 Atl. 408; State v. Young (1902) 67 N. J. L. 223, 51 Atl. 939.

IV. Particular jurisdictions.

a. Florida.

In Dixon v. State (1870) 13 Fla. 636, it was held that "it cannot be deemed necessary for the prosecution, in order to show the declarations of the accused, to first show that no inducement or threat had been held out or made to induce or draw out the declarations. To require a prose

cutor to show that no promises or threat had been made to the prisoner would be in violation of a rule in regard to proving a negative, and in perhaps a majority of cases result in the exclusions of confessions and declarations, and the consequent defeat of the ends of justice."

Where it appears that a legal foundation was laid for admitting the confession as having been voluntarily made, and the defendant did not object to the evidence until it was received, and then moved to strike it out, the court said: "When it appears prima facie that a confession was freely and voluntarily made, the burden is upon the defendant to show that it was in fact not a voluntary confes

sion." Sims v. State (1910) 59 Fla. 38, 52 So. 198.

In Howell v. State (1913) 66 Fla. 210, 63 So. 421, the court, in sending the case back for a new trial on other grounds, while the point could not be said to be properly before them, referred to certain cases as holding "that testimony as to confessions of guilt made by an accused party to officers, especially when such party is under arrest, is not admissible in evidence at the trial, unless it was clearly shown that the confession was voluntarily made after such party is fully advised of his rights under the law."

In Bates v. State (1919) 78 Fla. 672, 84 So. 373, where a conviction was reversed chiefly because the court was not satisfied the admissions were freely and voluntarily made, the official headnote states: "Before admissions made by a party while under arrest can be introduced in evidence, the court should determine the principal question of whether the admissions were free and voluntary."

"When it appears prima facie that a confession was freely and voluntarily made, the burden is upon the defendant to show that it was, in fact, not a voluntary confession.' Whitten v. State (1923) Fla. 97 So. 496.

b. Iowa.

coercion or inducement such as to require its exclusion." State v. Icenbice (1904) 126 Iowa, 16, 101 N. W. 273.

c. Wisconsin,

In Stoddard v. State (1907) 132 Wis. 520, 112 N. W. 453, 13 Ann. Cas. 1211, the court said: "It is urged that the evidence of the sheriff and another witness, to the effect that the plaintiff in error made statements at the time of his arrest and after confinement in the county jail, admitting that he took this rig into his possession and drove it away, should not have been admitted. Plaintiff in error denies having made any such statements. The circumstances testified to as having existed at the time they were made disclose nothing in the nature of any promise that it would be for his benefit or advantage to make them, nor does it appear but that, if made at all, they were made voluntarily by him. We discover nothing in the nature of the statements claimed to have been so made, or in the circumstances under which they are alleged to have been made, that affects their competency as evidence in the case."

In Lang v. State (1922) 178 Wis. 114, 24 A.L.R. 690, 189 N. W. 558, the court, referring to several cases, states that "they all recognize the rule that confessions must be voluntary to be admitted in evidence. The rule has been declared in several recent decisions of this court."

d. Various.

In State v. Castelli (1917) 92 Conn. 58, 101 Atl. 476, the court, in affirming a conviction, stated that the trial court ruled that the state must show that the actions of the defendant in reenacting the murder in question were voluntary, and said further: "The state must show affirmatively that any confession or performance in the nature of a confession was not procured by duress."

"Statements and declarations by a defendant in a criminal action, in denial of guilt while a witness before a grand jury, are not confessions within the rule requiring them, first, to be shown to have been made voluntarily, before they are competent evidence

against him." State V. Campbell (1906) 73 Kan. 688, 9 L.R.A. (N.S.) 533, 85 Pac. 784, 9 Ann. Cas. 1203.

In State v. Guie (1919) 56 Mont. 485, 186 Pac. 329, the court said that a certain statement was "not a confession, and is not subject to the rule which requires preliminary proof of its voluntary character." In State v. Stevens (1921) 60 Mont. 390, 199 Pac. 256, the court made a similar reference to such a rule.

In United States v. Rivera (1916) 8 Porto Rico Fed. Rep. 401, it was said that "a confession, to be admissible, must be perfectly voluntary."

In State v. Allison (1910) 24 S. D. 622, 124 N. W. 747, the court, in affirming a conviction, said: "We believe

that wherever the circumstances are such as to create a doubt or suspicion as to the competency of proof of confession, it is incumbent upon the state to offer its proof to show the competency, whether an objection has been made, or not; and that this rule may well be applied wherever it appears that such confession was given to the officers of the court while the defendant was in custody."

"Unless confessions are made freely and voluntarily, without the influence of hope or fear, they are not received as competent evidence." Self v. State (1873) 6 Baxt. (Tenn.) 244.

Georgia.

V. Statutes.

The Georgia statute provided: ". Confessions of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify a conviction." "To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury." Georgia Code 1882, §§ 3792, 3793.

In Eberhart v. State (1873) 47 Ga. 598, where the confessions were not objected to, the court said: "Unless the circumstances under which they are made showed they were not voluntary, they are admissible. If they are given in, and not objected to, it is too

late after verdict to say that there was not a sufficient inquiry into the circumstances."

In Dawson v. State (1877) 59 Ga. 333, the court stated that the rule was that when it appeared from any of the state's witnesses that the confessions were not freely and voluntarily made, the court will rule the evidence out, but when the witnesses for the state testify that the confessions were freely and voluntarily made to them, it was then incumbent upon the defendant to rebut the evidence.

Where there was nothing in the record to show whether a confession was or was not freely and voluntarily made, and the record did not show any motion to rule it out on the ground that it was not freely and voluntarily made, the court did not think it necessary to reverse the judgment, the evidence satisfactorily showing that the defendant was guilty. Mitchell v. State (1887) 79 Ga. 730, 5 S. E. 130.

When evidence of confessions has been received without objection, and without requiring preliminary proof, no error is committed. Smith v. State (1891) 88 Ga. 627, 15 S. E. 675.

In Luby v. State (1897) 102 Ga. 633, 29 S. E. 494, the court, in affirming a conviction, no prejudicial error having been committed, said: "As to the main proposition charged, viz., that confessions are among the highest grades of evidence, such has been held by this court to be the general rule. This rule, however, could in

no event be treated as sound unless the confession was clearly proved and shown to be absolutely free and voluntary."

"Where, in the trial of a criminal case, a witness testifies that a confession was freely and voluntarily made to him by the accused, who was at the time under arrest, the evidence of the confession is admissible, and it is not incumbent on the state to show, as a condition precedent to the admission of the evidence, that such confession was not the result either of inducements or threats made by the officer having the accused in custody." Jenkins v. State (1904) 119 Ga. 431, 46 S. E. 628.