The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1922-07-13

| jected." The King V. Jane Warickshall,
l Leach's Or. c. 4th ed. 263.
It is the rule recognized in every
treatise on evidence and in every state
and was long ago declared by this
court. The reason generally assigned
for rejecting confessions induced by
violence or threats, or hope Of reward,
is that such testimony is too unreliable
to sustain conviction for crime. But
the reception of such evidence violates
the constitutional privilege against
characterization. See the elaborate
opinion of Chief Justice White in
Bran v. United States, 1880 S. $50.
The cases in which the rule is most
often applied are those where there
have been threats of injury or promise
of favor. There are numerous cases
where confessions extorted bymob yio-
lence have been rejected. Is Corp. Jur.
p. 729. But it is ereditable to the
administration of justice in this coun-
try that there are comparatively few
cases where police officers have used
actual violence to secure confessions.
Several decisions of this court are
relied on by counsel for the state to
sustain the contention that the state
ments made by defendant to the Off
GERS on the night in question were
properly received. No violence to the
prisoner was shownsin these cases and
they all recognize the rule that con-
fessions must be voluntary to be ad-
mitted in evidence. The rule has been
declared in several recent decisions of
this court in which it was held under
circumstances far more favorable to
the state than those in the present case
that the convictions should be reversed
because the confessions were involun-
tary.
Rules on Admitting Evidence.
We recognize the rule that the adj
instability of evidence as to the con-
fession was for the determination of
the trial judge in the first instance
and that his decision should control
unless it satisfactorily appears from
the record that such decision was
clearly against the evidence. But we
are forced to the conclusion that the
overwhelming weight of testimony es-
tablished the fact that the statements
made by the defendant were drawn
from him through fear and even terror.
Although for convenience we use the
word confession" in this opinion there
was in fact no real confession during
the night of horror which the testi-
mo Iocn IhAe " I'D
that the defendant was so maltreated
that ito escape further abuse he told
whatever tales he thought would please
his accusers. We therefore hold that
the confession obtained on the morning
of September 28th should not have been
submitted to the jury.
Subsequent Statements.
The next question for consideration
is, whether the subsequent statements
of the defendant called confessions
were voluntary. In the record there
is an elaborate and able opinion by the
trial court. We infer from it that lie
believed that the defendant was sub
jected to abuse by the officers on the
night when he was taken into custody.
But the court came to the conclusion
that in making subsequent statements
{ the defendant was under no coercion
and that these statements were volun-
tary.
The defendant testified that the rea-
son he did not assert the truth was
that he feared he would be beaten
some more, there was always officers
around" We might not accept this
statement if it were not strongly cor
roborated by the preceding facts, and
if the fears was unreasonable under
all the circumstances. We infer from
the testimony that defendant was weak
morally, intellectually and physically
lie had been sadly addicted to drink.
In the interval of about thirty-four
hours between his seizure and mis- APP
pearance in court he had gone through
experiences which i'll fitted him to act
with resolution or good judgment
There had been no warning at any time
that his confessions would not Grim
mate him unless voluntarily made. He
had good reason to believe that a re-
pudiation of his confessions would
anger the officers who had. maltreated
him. 1t is significant that at the first
instant when an attorney appeared who
in his Judgment could give him some
help or protection he denied his guilt.
The lapse of time between the first
confession and the others was very
brief. Much longer periods of time
have been held insufficient to remove
the fear or hope of favor which led
to the original confession. We are
convinced that the controlling infu-
ence which exacted the first confession
had not been removed when defendant
entered his plea of guilty, and that the
state failed to meet the burden which
the law in such cases imposes.
Holds Instructions Erroneous.
Error is assigned on the claim that
there were erroneous instructions Civ
en- to the jury. Among the instruc-
tions were the following:
Evidence of confessions made by
the defendant that he killed Pacini has
been received in this case. The mere
fact that confession was made with
out the accused having been cautioned
or warned that it might be used
against him, if you find such to be the
fact in this case, does not render it
unworthy of credit, if otherwise cred
IDLE. The mere fact that confession