facts necessary to be proved24 still this will not always cause reversal.25

An attorney who errs in his theory of the case and believes that certain questions and evidence are proper when in fact they are improper, bas a right to ask such questions, and where the court properly rules thereon the review court will not reverse.26 The ruling of the trial court on the question of the propriety or impropriety of remarks must be made at the time. If the court directs counsel to wait until the summing up to make their objections the error is reversible," and it is not proper to have it generally understood that all improper remarks are objected to.28

Prejudicial Error will Reverse.- Where prejudicial error results from improper remarks notwithstanding the objections interposed and the action of the court in restraining or attempting to restrain counsel and in directing and instructing the jury, courts of review will reverse the judgment.29 The theory of this is that the error was so great that the prejudice it caused could not be removed by the court's admonitions. This of course usually occurs in cases of flagrant misconduct of counsel; and especially when the conduct is persistent and continuous, and when no rebuke or direction on the part of the court can destroy its influence,30 where witnesses are referred to as "ghouls" and "vultures" "prowling among the cots

as

24 I. C. R. R. Co. v. Souders, 178 Ill. 585, citing Andreas v. Ketchum, 77 Ill. 377; Skelly v. Boland, 78 Ill. 438; Feinberg v. People, 174 Ill. 609.

25 L. E., etc. Ry. Co. v. Close, 5 Ind. App. 444. 26 Young v. Fox, 49 N. Y. Supp. 634.

27 Halpern v. Nassau Elec. R. Co., 45 N. Y. Supp. 134, citing Koelges v. Ins. Co., 57 N. Y. 638; Williams v. Railroad Co., 126 N. Y. 96.

28 Penn. Co. v. Greso, 79 Ill. App. 127.

29 St. L., etc. R. Co. v. Waren, 65 Ark. 619, citing K. C., etc. R. Co. v. Sokal, 61 Ark. 130; Hood v. C. & N. W. Ry. Co., 95 Iowa. 331, citing Henry v. Ry. Co., 66 Iowa, 56; Rudd v. Rounds, 64 Vt. 432; McHenry Coal Co. v. Sueddon, 89 Ky. 684; Wheeler & W. Mfg. Co. v. Sterrett, 94 Iowa, 160, citing Henry v. R. Co., 70 Iowa, 233; Whitset v. R. Co., 67 Iowa, 159; Jones v. Assn., 92 Iowa, 652; In re Barney's Will (Vt.), 44 Atl. Rep. 75; Potter v. Ry. Co. ( Mich.), 82 N. W. Rep. 245;

in the hospital' and where the word "union" in a company's name was alleged to mean a monopoly.32 When counsel neglects or refuses to withdraw the improper remarks, the verdict will be set aside. In cases where there is evidence of error the judgment will at times be affirmed conditionally on remittitur.34 If a case has been closely contested or there is a sharp conflict in evidence these and like considerations will favor a reversal,35 and where there is a close issue, a judgment may be reversed even if the verdict is not excessive.36 Courts of review have often and with emphasis announced that improper methods of trying causes will not be tolerated; that the only corrective is for counsel to know that by such methods they imperil whatever verdicts they may obtain, and if trial courts do not by way of rebuke, instruction or granting new trials do their duty as is their power, the appellate courts must apply the corrective.3

37

Allusion somewhat in detail to a few recent cases will show the general trend of judicial decisions. Where plaintiff's attorney said that if the defendant had an honest defense it would arbitrate, but that it was its policy to fight and the court merely told counsel to confine himself to argument, there

31 Rudiger v. C., etc. R. Co., 101 Wis. 292, citing Friemark v. Rosenkrans, 81 Wis. 359, and other cases. 32 Union Compress Co. v. Wolf, 63 Ark. 174, citing L. R., etc. R. Co. v. Cavenesse, 48 Ark. 106, and au thorities therein cited.

33 Robertson v. Madison, 67 N. H. 205.

34 Wetzel v. Meranger, 85 Ill. App. 457; C., B. & Q. v. Kellogg (Neb.), 76 N. W. Rep. 462, citing on the general subject Iron Co. v. Field (Ala.), 16 South. Rep. 538; Bullard v. R. Co., 64 N. H. 27; Paper Co. v. Banks, 15 Neb. 20; Live Stock Co. v. May, 51 Neb. 474; Martin v. State, 63 Miss. 505; Rudolph v. Landwerlen, 92 Ind. 34.

35 The Oriental v. Barclay, 16 Tex. Civ. App. 193, citing Willis v. McNeil, 75 Tex. 465; Ry. v. Jarrell, 60 Tex. 268 and other cases;Killoven v. Meehan & Dunn, 68 Mo. App. 212. See also in this connection Giddionsen v. Ry., 129 Mo. 392; Hoffman v. Hoffman, 126 Mo. 416; Olfermann v. Union Depot Ry. Co., 125 Mo. 417; St. L., etc. R. Co. v. Holmes (Tex. Civ. App.), 49 S. W. Rep. 658, citing Tel. Co. v. Teague (Tex.), 27 S. W. Rep. 958; Dillingham v. Wood (Tex.), 27 S. W. Rep. 1074.

not a vital one. If he contemplates knowingly to abuse his privileges of argument he had best not do it. It is difficult to see wherein he could thereby profit. A persistent course in this direction insures a new trial or a reversal, and a large verdict does not even aid a settlement when one or the other of these is certain. If counsel has inadvertently or in any way made improper remarks he should promptly withdraw them with or without objection by the other side and ask the court for a decided and certain instruction to the jury that will have the effect of removing any prejudice caused, and except in a case of flagrant and persistent impropriety, this will be sufficient.

As to the course of counsel who have the right of objection, the decisions are not so clearly of one import. The earlier decisions made it the duty of the court to correct offending counsel and to admonish the jury, a failure to act in this respect being regarded as a ruling that the remarks were proper to which implied ruling counsel could except. According to this line of decisions counsel who is defending, if no others, should ordinarily keep quiet and rejoice in his silence while his opponent piles error upon error in an argumentative structure. The later and better line of decisions is to the general effect that counsel who desires to object to his opponent's remarks must do so at the time they are made and with specification, as otherwise he is presumed to waive any objection, placing the burden upon him to watch his and his client's interests, not upon the trial judge. And this is eminently proper. It being the duty of counsel so desiring to object, it is his further duty to insist upon a decisive ruling to which there can be an exception, all of which becomes a part of the record, and in this way by a proper assignment of error is brought to the attention of the reviewing court.

Chicago, Ill.

CYRUS J. WOOD.

would get the district attorney to dismiss the case against him, and the sheriff said, though he would not promise that much, that he would use his influ ence to "make it go lighter with him," and the deputy sheriff said "it might make it go lighter with him," and that he "had known men to be turned loose by turning state's evidence," there were such inducements leading defendant to believe that his condition would be bettered by confessing that a confession made under such circumstances was not admissible in evidence.

HENDERSON, J. Appellant was convicted of burglary, and his punishment assessed at two years' confinement in the penitentiary. The state introduced appellant's confessions against him. Appellant excepted on the ground that he was under arrest at the time the confessions were made, and was not properly warned, that the confessions were made to officers under promises of reward and persuasion. The state's witnesses (the sheriff and his deputy) testify that a proper warning was given, to-wit, that they told appellant before he confessed to the theft that same would be used against him as evidence. However, appellant introduced two witnesses who stated that the warning given was that his statement could be used for or against him. If this was the warning given, this confession was not admissible. Guinn v. State, 39 Tex. Cr. Rep. 257, 45 S. W. Rep. 694; Unsell v. State, 39 Tex. Cr. Rep. 330, 45 S. W. Rep. 1022. If this were the only question made as to the warning given, it being a matter of controversy as to the character of warning, one being legal and the other illegal, we would hold that a proper charge of the court, submitting this issue to the jury, was the correct practice. The charge, however, was defective in other respects, which we will point out hereafter. As stated before, it was also objected to the confession that, although the warning given may have been a legal one, yet it was made under such promises by the officers as to render it inadmissible. If there was any controversy between the witnesses as to what was said by the officers to the defendant. the court might, by a proper charge, have submitted this issue to the jury. But the officers themselves admit that they used some language of a persuasive character. Loessin shows that he knew Dr. Clark was a friend of defendant, and was using him to get a confession from him. Clark, it seems. told defendant, if he would make a confession and tell who was assisting him in taking the seed, they would get the district attorney to dismiss the case against him. The sheriff thereupon stated he would not go

would not go that far, but would use his influence to make it lighter on him. It seems, Kesler, who was introduced by the state on this point, testified that Dr. Clark first stated what he had promised Martin; that is, that they would have the case dismissed against him. The sheriff said he could not promise him that, hut he would use his influence to make it lighter on him; and after this Martin made the statement, which was that he and three other parties stole the cotton seed. The language here sought to be used to induce the confession is certainly as strong as the language used in Searcy's Case, 28 Tex. App. 513, 13 S. W. Rep. 782. In Thomas v. State, 35 Tex. Cr. Rep. 178, 32 S. W. Rep. 771, we laid down the principle governing the admissibility of confessions. We quote from that opinion, as follows: "The real question being, in every case, whether or not the confessing mind was influenced in a way to create doubt of the truth of the confession, an involuntary confession, uttered to bring temporal good or avert temporal evil, even when the contemplated benefit is small, will be rejected. The circumstances under which the confession was made are of very great importance. They must be looked to in all cases, and when this is done, and there is nothing pointing to the motive prompting the confession, it will be received. Now, whether there is an express or implied promise to aid the suspected person, or a threat of temporal injury, or whether the suspected person is told that it would be better for him to confess, etc.. does not always solve the question. It is true that the inducement under which the confession was uttered is of prime importance, but not always decisive. The inducement and the surrounding circumstances decide the question. The inducement may not be sufficient to show the motive for the confession, but, when read in the light of the surrounding circumstances attending it, it may be ample proof to create doubt of the truth of the confession." Now, when we read the testimony of the state's witnesses in connection with the surrounding circumstances as testified to by them and other witnesses, we are constrained to the opinion that appellant was induced to confess by the promise made to him by the sheriff. It will be observed in this connection that before he made the statement to the sheriff he had already, under the promise made by Dr. Clark, whom the sheriff was using, made the confession to him. No doubt, he believed Clark was acting for the sheriff, and having already secured a confession through Clark by a larger promise. and though this was in part repudiated by the sheriff. yet, evidently, the previous confession was a part of the transaction, and was induced by promises of getting him released from prosecution. Under the circumstances we believe that the confession should have been rejected.

On this subject of confessions, we notice the court gave the following charge: "You will determine from the evidence whether there was or

was not a confession under such a warning, as before defined, and voluntarily and freely made, as before instructed. If you so find, you will convict defendant, and assess his punishment by confinement in the penitentiary not less than two, nor more than twelve years." This was evidently a charge on the weight of the testmony; that is, the effect was to tell the jury to convict appellant on his conviction alone. This confession went to the jury as any other testimony, but the court had no right to instruct the jury to convict defendant on his confession; it not being a judicial confession. It is not necessary to discuss other questions, but, for the errors pointed out, the judgment is reversed and the cause remanded.

A

NOTE.-Admission of the Confessions as Evidence in Criminal Prosecutions.-It is a well known rule of law that confessions cannot be received as evidence unless made voluntarily; that is, made without any suggestion of hope or fear by any other person. Brisler v. State, 26 Ala. 107; Young v. State, 50 Ark. 501; Miller v. State, 25 Wis. 384; Roberts v. State, 75 Ga. 8 3; Speer v. State, 4 Tex. App. 474: People v. Taylor, 93 Mich. 638; State v. Suggs, 89 N. C. 527; State v. Hopkirk, 84 N. J. Law, 163. But of course confessions are not to be excluded because not spontaneous, it being only where they have been extorted or dragged reluctantly from the accused through the deliberate excitation of his hopes or fears by some actual promise or threat, that the court should refuse to permit them to go to the jury. For instance, a confession of a prisoner is admissible in evidence where it appears that it was made of his own motion to the witness while visiting him in jail at his request, and that the witness knew of no promises or threats made to him. Mose v. State, 36 Ala. 211. confession is admissible unless there was a substantial promise of favor made or sanctioned by a person in authority, or some other inducements calculated to make the confession an untrue one. State v. Staley, 14 Minn. 105. A confession made by a defendant on the day of the homicide, before his arrest, without inducements or threats, was admissible. Basye v. State, 45 Neb. 261. But where it appeared that it was doubtful whether or not inducements by the police had not been offered to accused to make a written declaration, purporting to be a voluntary confession, its admission was error, since, under such circumstances accused was entitled to the benefit of the doubt. State v. Garvey, 25 La. Ann. 191. In or. der to exclude a confession, the influence of hope or fear must be so great that, in the judgment of the court, a confession induced thereby would be unworthy of credit. State v. Patrick, 48 N. Car. 443. Of course declarations made by defendant before any suggestion had been made to arrest him, are admis. sible. McKenzie v. State (Tex. Crim. App. 1895), 543. Defendant's confessions as to his marriage, in a prosecution for seduction, are admissible when seriously and solemnly made; but the mere acknowledgment of the relation of husband and wife, made idly or to ward off prosecution, or to stifle inquiry, is inadmissible. West v. State, 1 Wis. 259. As a general rule, it may be said the motives with which a voluntary confession is made are, as a general rule, immaterial upon the question of its admissibility. For instance, a voluntary confession of murder is not inadmissible because made to free defendant's sister,

then under arrest for the crime, from suspicion, especially where defendant testifies in self-defense to every fact contained in the confession, and the sister testifies that he acknowledged to her substantially the same facts immediately after the killing. People v. Smalling, 94 Cal. 112; also State v. Staley, 14 Minn. 105. But see contra, Austine v. People, 51 Ill. 236, where it was held that a confession made with a view of compromising the matter with the injured party, is inadmissible. It was held in the case of Woolfolk v. State, 85 Ga. 69, that it was not against public policy to receive in evidence a confession contained in a prayer of the accused overheard while he was alone in his cell.

To render a confession incompetent on the ground that it was induced by the promise of some benefit to accused, the promise must have been made or sanctioned by some person in authority. A confession is never admissible when made under a threat or promise by a person having authority over the prosecution, or in his presence, or by his sanction. Rice v. State, 22 Tex. App. 654; United States v. Stone (C. C.), 8 Fed. Rep. 232. However, a confession made to the prosecuting attorney, voluntarily and without solicitation or promise, is admissible, it not appearing that accused was not fully informed as to the duty of the prosecuting attorney. Walker v. State, 186 Ind. 663. The fact that a confession was made to a justice before whom the preliminary information was filed, does not render it inadmissible. State v. McLaughlin, 44 Iowa, 82. Admissions of accused are not inadmissible merely because made to the officer who arrested him. State v. McLaughlin, supra. In a criminal case, the voluntary confessions of one of the defendants were admissible in evidence, though made to witnesses, who happened to be a constable and justice of the peace. State v. Monie, 26 La. Ann. 513. The statements of a prisoner to the prosecuting attorney are competent against him, if he was duly cautioned, and they were not forced from him. People v. Howes, 81 Mich. 396. A confession is not rendered inadmissible by the fact that it was prompted by mere suggestions or advice, or even solemn adjurations, by one holding no official position. State v. Fredericks, 85 Mo. 145. A confession obtained by the promise of a private detective, employed to work up the case, that the Commonwealth would make it easier for the prisoner if he would tell all about the crime, was not "induced by one in au· thority," and was admissible. Early v. Common. wealth, 86 Va. 921.

After the fact is known that either the influence of hope or fear existed, inducing a confession, explicit warning must be given the prisoner of the consequences of a confession, and it must also be clear that he understood such warning before his confessions are admissible in evidence. Van Buren v. State, 24 Miss. 512; Walker v. State, 28 Tex. App. 112; Rodri

that decision is that the fact confessed was collateral to the fact charged in the indictment. A confession made by defendant after he was told that whatever statements he made would be used as evidence against him, is admissible in evidence against him. Calloway v. State, 103 Ala. 27. In the case of Rizzolo v. Commonwealth, 126 Pa. St. 54, the officer who arrested the defendant said to him: "If you have anything to tell me, tell me the truth; if not, tell me nothing. You have a right to keep your mouth shut, but I tell you now, anything you say to me I shall use against you." Held, that evidence of a confession made to such officer by the defendant, was admissible. Where the sheriff was sent for by a prisoner in his Jail to receive a confession which the prisoner was urged to make by a third person, and the sheriff warned the prisoner that his confession must be voluntary, and that he need not expect any favors from him, such confession cannot be objected to as incom. petent. The warning given excludes the idea of the sheriff having sanctioned any inducement offered by the third person. Jones v. State, 58 Miss. 349. A statement by an officer who arrested defendant for forgery, made to him: "I have known you a long time, and will help you all I can, and if you say you did not forge that paper, I'll see M, and get him to compromise it with you. If you did do it, it might be best for you to say so; but if you did not, stick to it that you did not," is not sufficient to render a confession made by defendant to the officer inadmis. sible. Dotson v. State, 88 Ala. 208. A confession made by a prisoner upon the magistrate saying that it "would be better for him to tell the truth, and have no more trouble about it," is inadmissible. Biscoe v. State, 67 Md. 6.