pulsion or inducement of any kind. The fact that a confession was made while the party was under arrest is entirely immaterial, but it devolves upon the prosecution to show that the confession was voluntary. The authorities conflict somewhat as to whether the Court or the jury shall determine this question. The better authority seems to be that the Court shall determine it, because, manifestly, the admission of a confession to a jury, under the thought and instruction that it must determine, first, whether the same was voluntary before they can give it consideration, would be entirely inadequate to sufficiently safeguard the interest of the defendant. At page 588 of Bishop's Criminal Procedure, that authority holds that the prosecution, in making the opening statement to the jury, should not make any detailed statements that show a confession to have been made, for the reason that the admissibility of such confession must first be passed upon by the Court. At page 619 of the same volume, the same author again announces that whether a confession is voluntary or not is to be determined by the Court, and cites Ellis vs. State, 65 Miss., 44; 7 Am. St., 634; State vs. Crowson, 98 N. C., 595; Corley vs. State, 50 Arkansas, 305; also Section 1220 of the First Volume of Bishop's Criminal Procedure.

Underhill on Criminal Evidence, at page 161, paragraph 126, says that the premiminary question, Was the confession voluntary? bearing directly upon its competency as evidence, must be, according to the majority of the cases, decided by the Court as a mixed question of law and fact. This statement is supported by a long list of authorities, some of which go to the point of holding it error for the Court not to determine this question before the confession is submitted to the jury. From a careful consideration of such authorities, it may be stated that the weight of the same is for the preliminary determination by the Court of this question, before permitting the confession to go to the jury.

In discussing the statement that the prosecution must show that the confession is voluntary, Underhill, at page 161-162 of his work on Criminal Evidence, states that many of the cases sustain this proposition, and require the state to show by some evidence that the confession was freely and voluntarily made, but that other authorities sustain, at least in the absence of evidence to the contrary, the very reasonable

theory that a confession, like every act or utterance which is the result of human agency, is presumed to have been voluntary until the contrary is shown. This latter view would throw the burden of proving that the confession was involuntary upon the accused; but whichever position is right, the defendant is always entitled to show, by preliminary evidence, that the confession was not voluntary, and it is the duty of the Court, in determining the competency of the confession, not only to consider the evidence of the state, but the evidence elicited by the accused in his favor, as well. In State vs. Fidment, 35 Iowa, 545; Rufer vs. State, 25 Ohio, 464; State vs. Miller, 42 La., 1186; Simmons vs. State, 61 Miss., 243; Commonwealth vs. Culver, 126 Mass., 464; State vs. Kinder, 96 Mo., 548, the refusal, before the confession was admitted, to allow counsel for the prisoner to cross examine the witness as to the voluntary character of the confession, or to allow the accused to testify and explain his mental condition when it was made, or to show by the evidence of others, that it was improperly obtained, were reversible error.

In Hopt vs. Utah, 110 U. S., 574, the Court said that, "the admissibility of such evidence (confessions) so largely depends upon the special circumstances conected with theconfession that it is difficult, if not impossible, to formulate a rule that will comprehend all cases, as the question is necessarily addressed, in the first instance, to the judge, and since his discretion must be controlled by all attendant circumstances, the Courts have wisely forborne to mark with absolute precision the limits of admission or exclusion." This latter utterance, therefore, is the authority that binds in the United States Courts.

It was also said, in Wilson vs. United States, 162 U. S., 613, 40 Law Ed., 1090, that statements by an accused, not under oath, voluntarily made in answer to questions of a Commissioner, not as a confession of guilt, but as explanations to avert suspicion from himself, are not inadmissible because the Commissioner failed to inform him that he could have the aid of counsel, or to warn him that his statements might be used against him, or to advise him that he need not answer. This reasoning, of couse, finds its support in the existence of extraneous facts which have been discovered through the statements of the accused, or otherwise, and

such statements are, therefore, admissible, though made involuntarily, or though made to conceal guilt, and a different rule relates to them from that which respects confessions which are guarded by the great probability that the prisoner has been influenced by his expectation of punishment or of immunity, to speak what is not true.

The leading case respecting a judicial determination of what is voluntary and what is not voluntary, is the case of Bram vs. United States, 168 U. S., 532, 42 Law Ed., 568. In that case, the accused was an officer of a ship upon which a triple murder had been committed. He and a subordinate officer were placed in irons, and carried into port. The prisoner Bram was taken before a detective at Halifax, who searched him, and stripped him, and took what the bill of exceptions called "extraordinary liberties" with him, and thereupon questioned him as follows:

"When Bram came into my office, I said to him, ‘Bram, we are trying to unravel this horrible mystery. Your position is rather an awkward one. I have had Brown in this office, and he made a statement that he saw you commit the murder.' He answered, 'He could not have seen me. Where was he?' I said, 'He states he was at the wheel.' 'Well,' said he, 'he could not see me from there.' I said, 'Now look here, Bram, I am satisfied that you killed the Captain from all I have heard from Brown, but,' I said, 'some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not leave the blame of this horrible crime on your own shoulders.' He said, 'Well, I think, and many others on board the ship think, that Brown is the murderer, but I don't know anything about it.' He was rather short in his replies."

Because of the admission of this testimony or confession, the Supreme Court of the United States reversed the judgment of conviction, and granted a new trial. Compendiously stated, the rulings upon the same, by that Court, were as follows: The use which was made of the prisoner's statement precludes the prosecution from saying that it was not used to his prejudice, and after so using the testimony the prosecution will not be heard to assert that the confession was not prejudicial, because it did not tend to prove guilt. The sole question with reference to the voluntary character of an alleged confession depends on whether the making of the statement was voluntary and without inducement or com

pulsion, and not whether the particular communications contained in it were voluntary or not. The mere fact that a confession is made to a police officer while the accused is under arrest, in or out of prison, or is drawn out by his questions, does not necessarily render a confession involuntary, but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements made by the prisoner are voluntary.

The above decision is cited and applied in Sorenson vs. United States, 143 Federal, 820, by the Circuit Court of Appeals for the Eighth Circuit, to the protection of a defendant from the use of a confession which was secured from him by a Post office Inspector, who had advised the defendant that he, the Inspector, had an absolutely good case against him for robbing the post office, and advised him that the thing for him to do was to plead guilty and throw himself on the mercy of the Court, and that by doing so, the offense against the State laws would probably be overlooked.

It may be stated, therefore, as a general proposition, that the sole question for determination in the Federal practice, is, whether the confession was voluntary-that is, made without inducement or offer or promise of any sort.

§ 20a. Confession Continued. It is not an element of a voluntary confession under the federal authorities and under the common law rule that such confession shall have been made after warning, nor when not under arrest. Shaw vs. U. S., 180; Fed. 348. Upon request by the accused it is proper to specially instruct that a confession must be found to have been made voluntarily before it could be considered. Shaw vs. U. S., 180; Fed. 348.

Of course it will be borne in mind, as heretofore suggested, that the court passes upon this preliminary inquiry before submitting the testimony to the jury.

§ 21. Admissibility of Documentary Evidence Secured Illegally. In line with the thought that we have been pursuing is the inquiry as to whether documentary evidence, letters, papers, etc., secured in violation of the Constitutional provision guaranteeing the private citizen against illegal searches and seizures, can be used in evidence against the party from whom they were so secured. The case of Adams

vs. New York, 192 U. S., 586, 48 Law Ed., 577, by the Supreme Court, holds that the admissibility of documentary evidence, tending to establish the guilt of an accused of the offense charged, is not affected because it was secured in violation of the prohibition against unreasonable searches and seizures, and the self-incrimination of an accused is not affected by the introduction in evidence against him of certain private papers found in the execution of a search warrant, where he did not take the witness stand in his own behalf, as was his privilege, and was not compelled to testify concerning the papers or make any admission about them. This was a case that originated under the gambling paraphernalia statute of New York City, and the officers, armed with a search warrant under that statute, secured certain private papers that were not called for, nor included, in the search warrant, but which were decidedly damaging testimony against the defendant, and upon this state of facts the direct question above suggested was passed upon. The Supreme Court lays down the rule in the following terms, quoting from Greenleaf, Volume 1, Paragraph 254a:

"It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The Court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.....Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular, or even in an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass, he may be held responsible civilly, and perhaps criminally, but his testimony is not thereby rendered incompetent.

In line with the cases and authorities cited above was the holding of District Judge Thompson in the case of FirthSterling Steel Co. vs. Bethlehem Steel Co., 199, Fed. 353, where the information in question consisted of original drawings of armor-piercing projectiles submitted under orders of secrecy and the possession of which was subsequently wrongfully obtained, but the court said that the illegality of the method by which evidence has been obtained does not af