In Price v. State (1902) 114 Ga. 855, 40 S. E. 1015, 12 Am. Crim. Rep. 203, it was held that "it is not error for the court to refuse a request to charge that confessions of guilt should be rejected by the jury unless the state has shown beyond a reasonable doubt that they were made voluntarily and without being induced by another by the slightest hope of benefit or remotest fear of injury."

In Duren v. State (1917) 21 Ga. App. 524, 94 S. E. 902, it was held that the court did not err in charging the jury as follows: "If the confession or statements as proved, if proved, appeared prima facie to have been made without the slightest hope of benefit or remotest fear of injury, as induced by another, and the defendant contends that they were improperly induced, the onus under those circumstances would be upon him to show they were improperly induced."

If

"Confessions are legal evidence. Unless the circumstances under which they were made show they were not voluntary, they are admissible. they are given in, and not objected to, it is too late after the verdict to say that there was not sufficient inquiry into the circumstances." Alford v. State (1911) 137 Ga. 458, 73 S. E. 375; McDuffie v. State (1915) 17 Ga. App. 342, 86 S. E. 821.

"While the court should not admit confessions or incriminatory admissions in a criminal case, without a preliminary hearing as to their being freely and voluntarily made, where there is anything in the testimony tending to show that they were not so made, or where the accused demands the preliminary investigation, still such evidence is not objectionable on the ground that it has not first been affirmatively disclosed that the admissions or confessions were freely and voluntarily made, where there is nothing to show that they were induced by any hope of reward or fear of punishment." Hawkins v. State (1911) 8 Ga. App. 705, 70 S. E. 53.

Indiana.

In Brown v. State (1880) 71 Ind. 470, where a conviction was reversed for refusing to hear evidence offered

by the defendant to show that confessions were made under the influence of fear produced by threats, the court said: "Doubtless, confessions of the defendant are prima facie competent," having previously quoted the Indiana statute, viz., "the confession of a defendant made under inducement with all the circumstances may be given in evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction, without corroborating testimony."

In Hauk v. State (1897) 148 Ind. 238, 46 N. E. 127, where the defendant challenged the competency of a confession, upon the statutory grounds that it was involuntarily made under the influence of fear produced by threats, the court said: "There was nothing contained in this written confession disclosing that it was not voluntarily made; in fact, it contained the statement that it was made by the appellant of his 'own free will and accord,' and it was attested by his own signature. It was prima facie competent. A confession by a person accused of a crime is presumed to be voluntarily made, until the contrary is shown. The accused asserted that it was involuntary, being made under fear produced by threats. Under the circumstances the burden of proving this fact rested upon him."

In Ginn v. State (1903) 161 Ind. 292, 68 N. E. 294, the court quoted from Hauk v. State, supra, viz.: "A confession by a person accused of a crime is presumed to be voluntarily made until the contrary is shown."

The same passage was quoted in Thurman v. State (1907) 169 Ind. 240, 82 N. E. 64.

In State v. Laughlin (1908) 171 Ind. 66, 84 N. E. 756, the statute appears to have been changed by adding to the expression "produced by threats" so as to make it read, "produced by threats or by intimidation or undue influences." In this case the court

"The admissibility of confessions at common law was determined by the trial judge under the particular circumstances of each case. This

547.

New York.

The New York statute provides (Code Crim. Proc. § 395): "A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed."

In People v. Cassidy (1892) 133 N. Y. 612, 30 N. E. 1003, it was said: "The confessions of the defendant were made while he was under arrest, in the presence of several persons, to Inspector Byrnes, of the New York police force. The inspector and other persons present testified that the confessions were voluntarily made. The defendant testified that they were made 'under the influence of fear, produced by threats,' and hence it was claimed on his behalf that they were not competent under § 395 of the Code of Criminal Procedure. The jurors were instructed to disregard the confessions if thus obtained, and they must have found that they were not thus induced; that they were voluntarily made and reliable, and hence they were properly in the case and were sufficient as the basis of the verdict."

In People v. Rogers (1908) 192 N. Y. 331, 85 N. E. 135, 15 Ann. Cas. 177, the court, in its opinion, arguendo, ap

parently approves the rule that confessions are presumed to be voluntary. Oregon.

It was held in State v. Wintzingerode (1881) 9 Or. 153, that the Oregon statute did not admit all confessions except those made under the influence of fear produced by threats, but that the common-law rules governing the admissibility of confessions were still in force. The statute provided: "A confession of a defendant, whether in the course of judicial proceedings, or to a private person, cannot be given in evidence against him when made under the influence of fear produced by threats; nor is a confession only sufficient to warrant his conviction, without some other proof that the crime has been committed." See also State v. Moran (1887) 15 Or. 262, 14 Pac. 419.

In State v. Moran, supra, it was stated, arguendo, that whenever a confession is offered in evidence against the accused, it becomes necessary for the court to ascertain and determine whether or not it has been obtained by the influence of hope or fear applied by a third person to the prisoner's mind. See also State v. Rogoway (1904) 45 Or. 601, 78 Pac. 987, 81 Pac. 234, 2 Ann. Cas. 431; State v. Roselair (1910) 57 Or. 8, 109 Pac. 865.

In State v. Garrison (1911) 59 Or. 440, 117 Pac. 657, the court said: "In the case of State v. Wintzingerode, supra, the rule was established in this state that a confession, to be admitted in evidence, must be shown, in the first instance, to have been made freely and voluntarily by the accused." "It is a fundamental rule of criminal law that a confession cannot be used against a defendant, unless the prosecution can show its free and voluntary character, and that neither duress nor intimidation, hope nor inducement, caused defendant to furnish such evidence against himself." State v. Spanos (1913) 66 Or. 118, 134 Pac. 6 (arguendo). "A confession which is actually or practically an acknowledgment of guilt is prima facie involuntary, and imposes upon the state the burden of showing that it was not induced by threats or promises of

favor." State v. Howard (1921) 102 Or. 431, 203 Pac. 311 (arguendo). Washington.

In State v. Washing (1904) 36 Wash. 485, 78 Pac. 1019, the court held that there was enough in the case to show prima facie that the statements were made voluntarily, and quoted the Washington statute, viz.: "The confession of a defendant made under inducement, with all the circumstances, may be given, as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony."

In State v. Newton (1902) 29 Wash. 373, 70 Pac. 31, it was held that it was sufficient if the officer testifying to admissions stated in effect that they were voluntarily made; it was not necessary for him to state in terms that they were not made "under the influence of fear produced by threats." In State v. Mann (1905) 39 Wash. 144, 81 Pac. 561, it was held that the proper way is to have the witness detail the circumstances, and it is sufficient if it is made clear from the whole of his evidence that the statements were voluntarily made. In State v. Wilson (1912) 68 Wash. 464, 123 Pac. 795, the court said: "Unless it appear that the confession was made under the influence of fear produced by threats, it was the duty of the court to admit the confession or statement in evidence. Where the evidence is in conflict upon this point, the question is then for the jury." The court had already said: "The testimony on the part of the state shows... that the statement was made freely and voluntarily by the accused." Where it was urged that it was error to show admissions, because it was not first shown that the defendant was not under the influence of fear produced by threats, the court said: "The testimony of the prosecution as a whole shows, however, that the alleged admissions were made freely and voluntarily; that, in the absence of a counter showing, is all sufficient, covering the preliminary essential, and negativing the idea of being made

38 A.L.R.-9.

under fear produced by threats." State v. Sullivan (1917) 97 Wash. 639, 166 Pac. 1123.

Texas.

Where the accused was in the custody of an officer, his confessions to him or others cannot be used against him, unless voluntarily made after having been first cautioned that they might be used against him, and this it is incumbent on the part of the prosecution to prove, under the Texas statute, which provides: "The confession of defendant may be used in evidence against him if it appear that the same was freely made, without compulsion or persuasion, under the rules hereinafter prescribed. The confession shall not be used, if at the time it was made the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court in accordance with law, or be made voluntarily, after having been first cautioned that it may be used against him." Greer v. State (1868) 31 Tex. 129. See also Barnes v. State (1871) 36 Tex. 356.

See

So, in Thomas v. State (1895) 35 Tex. Crim. Rep. 178, 32 S. W. 771, where a confession was made while the defendant was under arrest, it was said arguendo that the burden is on the prosecuting power to prove that the confession was voluntary. also Gallaher v. State (1899) 40 Tex. Crim. Rep. 296, 50 S. W. 388, 11 Am. Crim. Rep. 207. In Parker v. State (1904) 46 Tex. Crim. Rep. 461, 108 Am. St. Rep. 1021, 80 S. W. 1008, 3 Ann. Cas. 893, the court said: "We understand the rule to be that when one is under arrest, there must not only be the statutory warning given, but the statement made must be freely and voluntarily made, and the burden is on the state to show this." In Blake v. State (1917) 81 Tex. Crim. Rep. 87, 193 S. W. 1064, where confessions were made while under arrest, the court, in sending the case back for a new trial, stated that upon another trial the testimony will not be ad

mitted unless a proper predicate is laid.

In Richardson v. State (1922) 92 Tex. Crim. Rep. 526, 244 S. W. 1021, where it was urged that a written confession was inadmissible because it was not affirmatively shown that the witnesses who signed the confession were not other than peace officers, the statute providing that where the defendant made his mark, as here, such statement should be witnessed by some person other than a peace officer, the court, while holding that the objection in the court below had not been specific enough, said: "We understand the burden to rest upon the state to prove the facts which render a proffered confession admissible; that is to say, such proof is essential as a predicate for the admission of a confession."

But in Crowley v. State (1922) 92 Tex. Crim. Rep. 103, 242 S. W. 472, where a confession made to the district attorney was offered, and the defendant interposed objection that it was not voluntarily made, the court said: "No evidence was introduced raising an issue as to the voluntary character, or otherwise, of the confession. The instrument contains the proper warning, and shows upon its face to have been freely and voluntarily made. An issue to the contrary is not raised by simply urging an objection that it was not voluntary."

In Womack v. State (1884) 16 Tex. App. 178, it was held, when a confession was made by a person not under arrest, or in custody, or in any of the conditions pointed out in the statute, that to make a confession of a party admissible it must have been voluntary. And in a case where the defendant was not under legal arrest or in the custody of an officer, it was said that the same rule was applicable which applied to a confession at common law, which was to the effect that it must appear that the confession was freely and voluntarily made before it would be received as evidence against the accused. Hamlin v. State (1898) 39 Tex. Crim. Rep. 579, 47 S. W. 656.

But in Williams v. State (1885) 19

Tex. App. 276, where it was not clear whether the confession was made before or after the arrest, it was held that the burden rested upon the defendant to show that, at the time he made the confession, he was under arrest; and, not having shown that such was the fact, the court did not err in admitting proof of the confession. The same seems to have been held in Ruiz v. State (1922) 92 Tex. Crim. Rep. 73, 242 S. W. 231. On a later appeal of the Ruiz Case (1923) 96 Tex. Crim. Rep. 459, 257 S. W. 897, it was held that the fact that the defendant was under actual restraint, while not aware of it, nor even of the character or the presence of the officer, would not render his confession inadmissible, the court following a somewhat similar holding in Phillips v. State (1920) 86 Tex. Crim. Rep. 624, 219 S. W. 454.

Where the defendant objected to the action of the court in permitting a woman to testify to conversations with him, because no predicate was laid, the court said: "We cannot imagine what predicate was necessary to be laid. The conversations took place between appellant and Martha Hadnot at or near her house, and at the time appellant was evidently not under arrest, and there is nothing in the record showing that he was improperly induced to make any confessions to Martha Hadnot." Harrison v. State (1898) Tex. Crim. Rep. 43 S. W. 1002.

Philippines.

In United States v. Pascual (1903) 2 Philippine, 457, it was held that under the Philippine statute the failure of the defendant to object to a confession when offered was not necessary; he does not thereby waive the statute which provides: "No confession of any person charged with crime shall be received as evidence against him by any court of justice, unless it be first shown to the satisfaction of the court that it was freely and voluntarily made, and not the result of violence, intimidation, threat, menace, or of promises or offers of reward or leniency."