the attending circumstances, except when made under the influence of fear produced by threats, while it is also provided that a conviction cannot be had by proof of a confession made under inducement, "without corroborating testimony." Rev. St. Ind. 1881, § 1802 (Burns' Ann. St. 1894, § 1871). And, in the Texas Code of Criminal Procedure 1895 (article 750) it is provided that confessions shall not be used against a prisoner at his trial "if, at the time it was made, the defendant was in jail or other place of confinement, nor where he was in 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; or unless, in connection with such confession, he make statement of facts or of circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or instrument with which he states the offense was committed."

The English doctrine which restricts the operation of inducements solely to those made by one in authority has been adopted by some state courts, but disapproved of in others, as in Ohio. Spears v. State, 2 Ohio St. 583. Whether it is one which should be followed by this court in view of the express terms of the constitution need not be now considered, as it does not arise under the state of facts here presented. In some it is also held that the fact that the accused is examined on oath by a magistrate or coroner, or by a grand jury, with or without an oath, will per se exclude confessions, because of the influence presumed to arise from the authority of the examining officer or body. People v. McMahon (1857) 15 N. Y. 384, followed in People v. Mondon (1886) 103 N. Y. 211, 218, 8 N. E. 496, 57 Am. Rep. 709; State v. Matthews (1872) 66 N. C. 106; Jackson v. State (1879) 56 Miss. 311, 312; State v. Clifford (1892) 86 Iowa, 550, 53 N. W. 299, 41 Am. Rep. 518. This doctrine as to examining magistrates is in some states enforced by statutes somewhat similar in character to the English statutes. 2 Tayl. Ev. § 888, note 2.

In some of the states it has been held that where questions are propounded to a prisoner by one having a right to ask them, and he remains silent, where from the nature of the inquiries, if innocent, reply would naturally be made, the fact of such silence may be weighed by the jury. See authorities collected in Chamberlayne's note to 2 Tayl. Ev. p. 588 et seq. * * *

The fact, then, is that the language of the accused, which was offered in evidence as a confession, was made use of by him as a reply to the statement of the detective that Bram's co-suspect had charged him with the crime; and, although the answer was in the form of a denial, it was doubtless offered as a confession, because of an implication of guilt which it was conceived the words of the denial might be considered to mean. But the situation of the accused, and the nature of the communication made to him by the detective, necessarily

overthrow any possible implication that his reply to the detective could have been the result of a purely voluntary mental action; that is to say, when all the surrounding circumstances are considered in their true relations, not only is the claim that the statement was voluntarily overthrown, but the impression is irresistibly produced that it must necessarily have been the result of either hope or fear, or both, operating on the mind.

It cannot be doubted that, placed in the position in which the accused was when the statement was made to him that the other suspected person had charged him with crime, the result was to produce upon his mind the fear that, if he remained silent, it would be considered an admission of guilt, and therefore render certain his being committed for trial as the guilty person; and it cannot be conceived that the converse impression would not also have naturally arisen that, by denying, there was hope of removing the suspicion from himself. If this must have been the state of mind of one situated as was the prisoner when the confession was made, how, in reason, can it be said that the answer which he gave, and which was required by the situation, was wholly voluntary, and in no manner influenced by the force of hope or fear? To so conclude would be to deny the necessary relation of cause and effect. Indeed, the implication of guilt resulting from silence has been considered by some state courts of last resort, in decided cases, to which we have already made reference, as so cogent that they have held that where a person is accused of guilt, under circumstances which call upon him to make denial, the fact of his silence is competent evidence as tending to establish guilt.

While it must not be considered that, by referring to these authorities, we approve them, it is yet manifest that, if learned judges have deduced the conclusion that silence is so weighty as to create an inference of guilt, it cannot, with justice, be said that the mind of one who is held in custody under suspicion of having committed a crime. would not be impelled to say something when informed by one in authority that a co-suspect had declared that he had seen the person to whom the officer was addressing himself commit the offense, when otherwise he might have remained silent but for fear of the consequences which might ensue; that is to say, he would be impelled to speak either for fear that his failure to make answer would be considered against him, or in hope that, if he did reply, he would be benefited thereby. And these self-evident deductions are greatly strengthened by considering the place where the statements were made, and the conduct of the detective towards the accused. Bram had been brought from confinement to the office of the detective, and there, when alone with him, in a foreign land, while he was in the act of being stripped, or had been stripped, of his clothing, was interrogated by the officer, who was thus, while putting the questions and receiving answers thereto, exercising complete authority and control over the person he was interrogating.

Although these facts may not, when isolated each from the other, be sufficient to warrant the inference that an influence compelling a statement had been exerted; yet, when taken as a whole, in conjunction with the nature of the communication made, they give room to the strongest inference that the statements of Bram were not made by one who, in law, could be considered a free agent. To communicate to a person suspected of the commission of crime the fact that his co-suspect has stated that he has seen him commit the offense, to make this statement to him under circumstances which call imperatively for an admission or denial, and to accompany the communication with conduct which necessarily perturbs the mind and engenders confusion of thought, and then to use the denial made by the person so situated as a confession, because of the form in which the denial is made, is not only to compel the reply, but to produce the confusion of words supposed to be found in it, and then use statements thus brought into being for the conviction of the accused. A plainer violation as well of the letter as of the spirit and purpose of the constitutional immunity could scarcely be conceived of.

Moreover, aside from the natural result arising from the situation of the accused and the communication made to him by the detective, the conversation conveyed an express intimation rendering the confession involuntary, within the rule laid down by the authorities. What further was said by the detective? ""Now, look here, Bram, I am satisfied that you killed the captain, from all I have heard from Mr. 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 have the blame of this horrible crime on your own shoulders. But how could the weight of the whole crime be removed from the shoulders of the prisoner as a consequence of his speaking, unless benefit as to the crime and its punishment was to arise from his speaking?

Conceding that, closely analyzed, the hope of benefit which the conversation suggested was that of the removal from the conscience of the prisoner of the merely moral weight resulting from concealment, and therefore would not be an inducement, we are to consider the import of the conversation, not from a mere abstract point of view, but by the light of the impression that it was calculated to produce on the mind of the accused, situated as he was at the time the conversation took place. Thus viewed, the weight to be removed by speaking naturally imported a suggestion of some benefit as to the crime and its punishment as arising from making a statement.

This is greatly fortified by a consideration of the words which preceded this language; that is, that Brown had declared he had witnessed the homicide, and that the detective had said he believed the prisoner was guilty, and had an accomplice. It, in substance, therefore, called upon the prisoner to disclose his accomplice, and might well have been understood as holding out an encouragement that, by

so doing, he might at least obtain a mitigation of the punishment for the crime which otherwise would assuredly follow. As said in the passage from Russell on Crimes already quoted: "The law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted." In the case before us we find that an influence was exerted, and, as any doubt as to whether the confession was voluntary must be determined in favor of the accused, we cannot escape the conclusion that error was committed by the trial court in admitting the confession under the circumstances disclosed by the record.

* * *

The judgment is reversed, and the cause remanded, with directions to set aside the verdict and to order a new trial.5

FULLER, C. J., and BREWER and BROWN, JJ., dissented.

(Supreme Court of North Carolina, 1894. 115 N. C. 706, 20 S. E. 175.) Harriet Harrison was convicted of murder, and appeals.

The only exception relied upon by counsel in this court was that to the admissibility of the confessions of the prisoner. It was in evidence that the prisoner was an infirm and diseased old woman. The state introduced one Thomas as a witness, who testified that he was a detective, and that he went to the house of the prisoner, and represented himself as a stave-getter; and that while at the house of the

5 Approved in State v. Auguste, 50 La. Ann. 492, 23 South. 613 (1898); Roesel v. State, 62 N. J. Law, 232, 41 Atl. 414 (1898); McNish v. State, 45 Fla. 85, 34 South. 219, 110 Am. St. Rep. 66 (1903); Watts v. State, 99 Md. 36, 57 Atl. 545 (1904); State v. Nagle, 25 R. I. 109, 54 Atl. 1065, 105 Am. St. Rep. 864 (1903); State v. Middleton, 69 S. C. 74, 48 S. E. 35 (1903).

Disapproved in State v. Westcott, 130 Iowa, 1, 104 N. W. 341 (1906), in which the court says: "While the defendant may have been under unlawful arrest, this did not of itself make the confession involuntary. There were no threats or duress sufficient to destroy the voluntary character of the confession. The case in this respect turns upon whether or not there were any promises or inducements held out by the sheriff sufficient to destroy the voluntary character of the statements. They were not, in our judgment, sufficient to induce the defendant to make an untrue statement. The most that can be said in any event is that reasonable minds might differ regarding the inferences to be drawn from the testimony. In such cases the question is for the jury. We have declined to follow the broad rule laid down in Bram v. U. S., 168 U. S. 532 [18 Sup. Ct. 183, 42 L. Ed. 568]."

• For a discussion of principles, see McKelvey on Evidence (3d Ed.) §§ 91-94.

prisoner she told him that she was in great trouble, because some one had killed her husband, and that she knew who had killed him; that he then said to her: "You had better tell me all about it. I am a right good old monger doctor. I can work roots and gummer folks, and if you will tell me all about it I can give you something so you cannot be caught." Thereupon she told the witness that she got Elisha Reed to kill the deceased. Objection was made to the admission of this confession made by the prisoner under the inducement offered. The court overruled the objection, and the defendant excepted, and appealed from the judgment pronounced upon the verdict.

AVERY, J. When the competency of a confession is drawn in question, the correct inquiry in every such case is whether the inducement was such as to lead the prisoner to suppose that it would be better for him to confess himself guilty of a crime he did not commit. Rex v. Gibbons, 1 Car. & P. 97; Reg. v. Reason, 12 Cox, Cr. Cas. 228; Reg. v. Reeve, Id. 179. The evil to be apprehended and guarded against is inducing an innocent person to confess guilt through hope or fear. When the acknowledgment of the truth of inculpating facts is not made under the impression that, whether it is true or false, the mere making of the statement will bring some benefit to or ward off some danger from the person making it in connection with an accusation of crime against such person, there is no sufficient reason for excluding evidence of the confession,

There was no pretense of any power on the part of the witness to control the conduct of the authorities of the state as to instituting or pressing a prosecution for the crime. The witness was not known to the prisoner to be a detective. She stated, without inducement, that she knew who had killed her husband; but it did not follow necessarily that she was guilty as principal or accessory before or after the fact, though the witness seemed to think so. The hope held out to her appealed to superstition, and was calculated to make her believe that the witness, in return for her confidence, would give her some dose that would save her, not from prosecution, but from detection. The rule which is generally approved is that where the prisoner is advised to tell nothing but the truth, or even when what is said to him has no tendency to induce him to make an untrue statement, his confession in either case is admissible. Rex v. Court, 7 Car. & P. 486; Meinaka v. State, 55 Ala. 47; Russ. Crimes, pp. 395, 396.

It is not material that the witness told her a falsehood in appealing to superstition, since the words used had no tendency to make the prisoner tell what was untrue. Rex v. Thomas, 7 Car. & P. 345; Reg. v. Holmes, 1 Car. & K. 248. If the prisoner had in no way participated in the commission of the crime, she had no reason to fear a disclosure of the truth which she was invited to tell. The promise to protect, by witchery or cabalism, from being "caught," though it was an artifice resorted to to ascertain the truth, offered no temptation, in contemplation of law, to an innocent person to pretend that she was guilty. 3