215 La. 974

#### STATE v. ROBINSON.

No. 39041.

Supreme Court of Louisiana.

March 21, 1949.

On Rehearing June 30, 1949.

*849Lawrence W. Bergeron, Oliver S. Li-vaudais, Jr., New Orleans, G. W. Gill, Associate Counsel, New Orleans, for appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leander H. Perez, Dist. Atty., New Orleans, for ap-pellee.

McCALEB, Justice.

Appellant, a Negro 16 years of age, was indicted, tried and convicted for the Aggravated Rape, Article 42, Criminal Code; of a 38 year old white woman and was sentenced to death by electrocution. In his appeal to this court, he relies upon four bills of exception for reversal of his conviction and sentence.

The rape occurred during the early morning hours of October 4th 1947 at the residence of the victim in Violet, Louisiana where she was living with her husband and four young children. The facts are that appellant lived across the street from this ■house; that he entered it with force and arms at a time when the woman’s husband was away1 and that she awakened and was confronted with his nude figure standing over her with a hammer in hand, demand*850ing money. She told him that the money was on a shelf in an adjoining room, whereupon appellant requested indulgence in sexual intercourse and, when his demands were denied, he pulled a sheet off the woman, stuck a knife in her neck and, *by*threats, forced her to accede to his desires. Thereafter, appellant obtained a wallet containing $5.23 from the house and departed with instructions to his victim not to give an alarm. As soon as he left, the woman reported the occurrence to neighbors, an investigation was begun and appellant was arrested on the same morning at Bridge-side Inn (where he was residing). Later in the day, while incarcerated in the parish jail, appellant is alleged to have made an oral statement to the jailer, Aldemar Es-topinal, which was received in evidence over his objection.

This is the most serious bill of exception presented for determination. In the oral statement made by appellant to his jailer, he admitted the burglary and his demand that the woman submit to sexual intercourse ; that he made her turn her back toward him and that he placed his sexual organ between her legs. Appellant claims that the statement was obtained as the result of threats and violence administered by a Deputy Sheriff and State Police Officer after his arrest and confinement in the parish jail.

The only witness testifying for the State respecting the circumstances under -which the statement was made was the jailer, Estopinal. Pie asserted, in substance, that, at about 3 :30 in the afternoon on October 4th (the day of the arrest), Deputy Sheriff Langlois and the State Police officer were questioning appellant with respect to the commission of the crime; that no one threatened appellant nor was he subjected to any type of coercion and that, about an hour and a half after the questioning had been completed, appellant called him over to the cell and voluntarily made the statement to him. On cross-examination, however, the witness, when questioned as to the details of the interrogation of appellant, remarked:

> “Well, I’ll tell you what the State Police said, if you want me to tell you. The State Police told him, after he scraped the dint2 off the foot on the newspaper, and scraped it off his pants, and told him after he scraped it up, he said: ‘Boy, I have got you in the palm of my hand. You had better confess to me.’ The boy didn’t say a word. He kept telling the boy. He turned to Mr. Langlois, he said: ‘It’s no use.’

> “So Mr. Langlois questioned the boy. He was in the cell questioning and the boy wouldn’t talk. The boy wouldn’t say a word, so then they went off and I went with them.”

Appellant testified that he was beaten, mistreated and otherwise coerced by Lang-lois and the State policeman and that the latter told him that he was going “but I’m coming back; and when I come back, you can give your soul to God, and you know what to me.”

The State policeman was not called while the jury was withdrawn to rebut the evidence of appellant3 so it is evident that the trial judge placed no credence whatever in appellant’s testimony. While we cannot declare, from a reading of the evidence, that the judge erred in his unqualified acceptance of the jailer’s testimony and his disbelief of appellant, we are of the opinion that the State did not carry the burden placed upon it by Article 451 of the Code of Criminal Procedure by establishing affirmatively that appellant’s statement to the jailer was “free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” This is because the testimony of the jailer, which must be accepted as true, shows that the State policeman told appellant within two hours of the time the statement was given “Boy, I have got you *851in the palm of my hand. You had better confess to me.” We cannot regard this assertion as a mere exhortation or adjuration to speak the truth. On the contrary, it must be considered as a veiled threat or a coercive bidding calculated, under the circumstances, to induce a confession irrespective of its truth or falsity.

And it is of no moment that appellant failed to immediately respond to the officer’s command to confess or that he made the highly incriminating acknowledgment to his jailer instead of his inquisitor. Indeed, it would be impossible to measure the effect of the officer’s declaration upon appellant’s mind and it is for this reason that the law excludes confessions “if any degree of influence has been exerted”. State v. Henry, 196 La. 217, 198 So. 910, 917; State v. Young, 52 La.Ann. 478, 27 So. 50 and Bram v. United States, 168 U.S. 532, 549, 18 S.Ct. 183, 42 L.Ed. 568. While there can be little doubt that the insistence of the officer to confess because “I have got you in the palm of my hand” would have influenced a man of judgment to some extent, an even more rigorous view of the declaration must be applied here — for it is apparent that appellant, being but 16 years of age, was mentally immature despite the fact that he was fully developed from a physical standpoint. See Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224.

This court has but recently held, in State v. Ross, 212 La. 405, 31 So.2d 842, 845, that, where an officer stated to one accused of crime “the best thing to do is to tell the truth because we have the evidence against you”, it was not to -be regarded as an exhortation to speak the truth but as a declaration calculated to induce a confession.4 The rationale of that decision was that the statement carried with it an innuendo of reward which tended to induce a confession. In the matter at hand, we think the declaration of the officer contains the hint that failure to speak might not be tolerated.

We notice that the State, in its brief,5 questions that the oral statement made by appellant to the jailer falls within rules applicable to a confession. It is professed that it is really an exculpatory statement of the crime of rape and, as such, was receivable in evidence without an affirmative showing that it was free and voluntary. In support of its position, the State cites Article 449 of the Code of Criminal Procedure; State v. Picton, 51 La.Ann. 624, 25 So. 375 and State v. Terrell, 175 La. 758, 144 So. 488.

This contention is not well founded. Article 449 of the Code of Criminal Procedure declares that the term “admission” is applied to facts not involving criminal intent, whereas, the term “confession” applies only to an admission of guilt and not to an acknowledgment of facts merely tending to establish guilt. However, the Article which controls the case is Article 454, reading:

> “The rule that a confession produced by threat or promise is inadmissible in evidence *does not apply to admissions not involving the existence of a criminal intent/1*(Italics ours.)

The converse of the italicized clause is obvious — that admissions involving the existence of a criminal intent or inculpatory facts are governed by the rules applicable to confessions. The oral statement, apart from appellant’s confession of burglary, reveals his criminal intent to commit rape as he admitted placing his sexual organ between the woman’s legs. This is an incul-patory fact; the statement is exculpatory only to the extent that it does not concede penetration.

The Picton and Terrell cases, upon which *852the State relies, are inapposite. In the former, the defendant, charged with embezzlement, had voluntarily communicated with the manager of his employer with a view of compromising his shortages for $1000. During the interview, which occurred prior to the arrest, the defendant made certain damaging statements of fact —but none of them involved the existence of a criminal intent. In these circumstances, the court correctly held that there was no confession and that the statement relative to the crime of the defendant was of an exculpatory nature.

In the Terrell case, the three defendants were tried for murder, following a robbery committed by them. One of the questions presented for determination was whether a statement given by one of them to the police was an admission rather than a confession. The court found in the affirmative, inasmuch as it was an acknowledgment of facts largely of an exculpatory nature and it was concluded that, since it did not involve criminal intent, it was receivable under Article 454 of the Code of Criminal Procedure without the affirmative showing required for the admission of a confession.

Since a new trial must be granted because of the error in admitting the oral statement in evidence, it is unnecessary that we discuss the other bills of exception relied on by appellant.

The conviction and sentence are annulled and set aside and the case is remanded to the district court for a new trial.

HAMITER and MOISE, JJ., dissent.

O’NIELL, C. J., takes no part.

1

 He worked on a night shift at an iee factory.

2

 The evidence shows that the State Police Officer scraped dirt from appellant’s feet and trousers for the purpose of analysis with dirt found on the floor of the victim’s house.

3

 The State policeman testified after appellant’s oral statement to the jailer had been admitted in evidence and denied that he threatened appellant or that he made the statement which appellant attributes to him. He, however, did not deny that he told appellant that he had him in the palm of his hand and that he had better confess.

4

 The writer of this opinion dissented in the Ross caso and has not changed his views in any respect. He, however, is of the belief that the case at bar is distinguishable from the Ross case on two grounds — (1) that the language used by the police officer in this matter is much stronger in its context and, therefore, cannot be regarded as a mere exhortation, and (2) that, in view of the fact that appellant is a boy 16 years of ago, the chances of influencing Mm were much greater than in the case of an adult.

5

 The Attorney General stated, in oral argument, that the admissibility of the statement was governed by the same rules applicable to a confession and it was treated as a confession in the District Court.

On Rehearing

FOURNET, Justice.

A rehearing was granted in this case upon the state’s urgent request that it be “given an opportunity to demonstrate to the Court its error in granting a new trial.” However, in presenting the state’s cause, counsel have failed to avail themselves of the opportunity thus afforded them. In oral argument nothing was pointed to that had not been presented originally, and the state relied exclusively on its original written brief. By referring to the application itself, however, we gather the primary question presented for our consideration on this rehearing is whether the evidence fails to support the court’s conclusion that the statement attributed to State Officer Bradley by Jailer Estopinal, one of the state’s witnesses — “Boy, I have got you in the palm of my hand. You had better confess to me” — constituted a “veiled threat or a coercive bidding calculated, under the circumstances, to induce a confession irrespective of its truth or falsity.”

The rule now universally obtaining in all countries where the common law prevails, that a confession of a person accused of a crime is admissible in evidence *only*if freely and voluntarily made, is the result of the humanitarian principles evolved by courts during civilization’s progress from the ancient harsh and continental practice of putting a person charged with a crime to the torture and breaking him piece by piece until the confession was obtained, regardless whether a crime had, in fact, been committed, or, if committed, had been committed by the person being tortured.

It was only natural, therefore', that this humane principle found its way into our system of law when our forefathers came to this country in their quest for full liberty and that there was included in the Bill of Rights to the Constitution of the United States the provision that no one could be compelled in a criminal case to be a witness against himself.

The delegates representing the people of this state at the Constitutional Convention of 1921 -included in the Bill of Rights to this Constitution a similar provision, and, in order to insure if would be beyond the power of -the legislature or the judiciary to depart from what was the then accepted jurisprudence of this court, they added as a part of this same section, Section 11 of Article I, the provision that “No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime; nor shall any *853•confession be used against any person accused of crime unless freely and voluntarily ■made.”

In conformity therewith, the legislature of 1928, in adopting a Code of Criminal Procedure, incorporated in its Articles 452 and 451 respectively the following provisions : “No person under arrest shall he subjected to any treatment designed by effect on body or mind to compel a confession of crime,” and “Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” (Brackets ours.)

It therefore follows that the admissibility of a confession in evidence is predicated upon the state’s establishing its free and voluntary character by proof that is direct and positive, and, under our jurisprudence, this fact must not only be established to the satisfaction of the trial judge out of the hearing of the jury but his ruling with respect thereto will not be disturbed on appeal unless clearly not supported by the evidence. Once in evidence, of course, it is for the jury to say what weight shall be accorded a confession.

Following this procedure, the state, before offering the confession of the accused in evidence, offered the testimony of Jailer Estopinal, to whom the confession had been made, who affirmatively and positively stated the accused had confessed to him freely and voluntarily without any inducements or duress. The accused, taking the stand in his own behalf, testified he had been beaten, threatened, and otherwise mistreated by Deputy Sheriff Langlois (who died before the trial of the case) and State Police Sergeant Bradley (who was present in the courtroom but not called to testify on this point) in the presence of Jailer Estopinal, to whom he subsequently made the confession, but not until he had been led to believe that if he confessed it would be easier on him, with the suggestion that he would get the same sentence the prisoner in the adjoining cell had gotten— 10 days.

During this hearing the jailer, while on cross-examination, said State Officer Bradley made the statement with reference to having the accused in the palm of his hand but he denied the accused had been mistreated in the manner he subsequently testified he had. However, from a thorough study and analysis of the defendant’s own testimony, we are compelled to admit our conclusion that the statement attributed to Bradley was a veiled threat or coercive bidding calculated to induce a confession is not clearly borne out by the record.

It appears from the testimony of the accused that his motive for making the confession was not the previous treatment allegedly accorded him, but, rather, the jailer’s statement to him later the same afternoon that it would go a lot easier with him if he did confess.

In giving his- version of the incident the accused makes no reference to the remarks about the “palm of the hand” attributed to Bradley, but, instead, says the police officer told him he was coming back “and when I come back, you can give your soul to God, and you know what to me.” In his next answer the accused clarifies this statement by saying “He told me that if the dirt [from the scene of the crime] turned out to be like the dirt in the paper that he had [just raked from the pants of the accused 'by the state officer], that I could give my soul to ‘God and you know what to me.’ ” And again, when he was questioned about his footprints, he stated: “If the dirt would turn out like the dirt in that paper, I could give my -soul to God.” (Brackets ours.) This conversation took place about 1:30 in the afternoon. The accused testified further that later that same afternoon, at approximately 4:45 p. m., the jailer told him it would be easier if he would tell the truth because if the result of the test was unfavorable “he would catch hell,” and that the jailer, pointing to the man in the next cell, told the accused he had confessed to the truth, whereupon the accused asked how many days the man had gotten and when the jailer replied “Ten days,” he then confessed. But he says, “At that time, I didn’t know it was rape, so I lied on myself.”

*854We are, nevertheless, of the opinion that the record as made up fails to establish the state discharged its burden of establishing affirmatively the confession was freely and voluntarily made. We think that after the accused testified in detail about the mistreatment he received and the inducements offered him at the time he confessed, the jailer should have been recalled and re-examined with respect to the particulars testified to by the accused in order that the trial judge might have been afforded a better opportunity to weigh and decide this very important issue.

For the reasons assigned, our original decree annulling and setting aside the conviction and sentence and remanding the case for a new trial, is reinstated and made the final order of this court.

O’NIELL, C. J., takes no part.

McCALEB, J., concurs in the decree adhering to the views expressed in the original opinion.