
    No. 8335.
    The State of Louisiana vs. Henry Revells.
    The attorney appointed as Judge ad hoc declining to act as suck any longer, it was legal and proper for the lower court to appoint another attorney as such Judge ad hoc. jNor was it necessary that the said attorney bo a resident of the Parish in which the case was tried, being a resident of the District of which the Parish formed part.
    A continuance was properly refused, under the circumstances of the case.
    Orders relating to the separation of witnesses during the trial, are matters peculiarly within the discretion of the lower court.
    Tlie confession of the accused, made whilst lie was in the hands of liis captors, who were not officers of the law, and after they had put a rope round his nock, cannot he considered as a voluntary and free confession, and should not have been íeceived in evidence by the lower court.
    APPEAL from tlie Eiglith Judicial District Court, Parish of East Carroll. Hawlces, Judge ad hoc.
    
    
      W. G. Wyly, for tlie Accused, Appellant:
    1. Where the Judge is recused, and can find no resident attorney competent to act as Judge ad 7¿oc, the ease shall be assigaed to a District Judge of an adjoiniug District Sec. 2, Act 40 of the Acts of 1880; Act 70 of the Acts of 1876.
    2. Dor the purpose of trying a motion for continuance, the faets stated in tlie affidavit of the accused, for continuance, must be taken as true, and the Judge erred when he allowed rebutting evidence.
    “ The affidavit of the accused cannot he contradicted; it must he taken as trued’ 30 A. 296, State vs. Semien.
    3. When the accused caused his material witness to be summoned, ho exercised proper diligence. Where there was no competent Judge to issue process to secure the attendance of this witness, who had been duly summoned, it is absurd to say the accused failed to use proper diligence to compel the attendance of said witness, the District Judge being recused, and there being no competent Judge ad hoe to try the case, the one appointed having failed to qualify, and subsequently refused to try the case.
    
      4. A list of the names of the prosecutiug witnesses should have been served with the indictment, on the accused, iu order that he might protect his life and liberty by taking, in due time, adequate measures to repel their testimony, or destroy the weight or competency thereof.
    5. The statements of the deceased should not have been given to the jury by the witness, Richardson; because they were subsequent to the shooting — two minutes thereafter, and out ofthe presence of the accused; the criminal act had ended, and the guilty party escaped. Those “ declarations and the killing do not harmonize and constitute one transaction.” 21 An. 473, State vs. G-regor. Thoy were not contemporaneous. (See 33 An. 289 ; 28 An. 952.)
    6. Where the court orders the witnesses separated, to prevent combination and false swearing, they should remain separated till the trial ends; it was error for the prosecution to ask, and tlio court allow the witness, Shelton, after ho had testified in chief, to remain in the court room to hear the testimony of the other witnesses, in view of the fact, that defense stated he expected to recall said witness later in the trial, and did not wish him to hear the delivery of the testimony of other witnesses.
    7. Tlie confessions of the prisoner, kidnapped'in Mississippi by a patty of 20 armed men from this State before day, and brought across swamps for a distance of fifteen miles, with his hands tied and a rope around his neck, were not voluntary confessions of guilt. ' It is manifest the circumstances of this capture were such as to inspire fear and alarm, and to preolude the idea of deliberation and voluntary mental action nocessary in making a solemn declaration of this character. (See 25 A. 192, State vs. Garvey and Earle; 28 A . 925.)
    8.“ Where, from the whole case as presented, the Supreme Court is left with an impression that there may have been irregularities in the trial, although all the points made by the accused have been properly ruled against him, the case will he remanded for a new trial/’ 30 A. 540, State vs. Gunter.
    
      Olías. M. Pilcher, on the same side.
    
      J. 0. Egan, Attorney General, for the State, Appellee :
    1. A Distiict Judge has the power to recuse himself, and to- appoint any attorney-at-law, practicing in his District, to act as Judge ad hoc. Art. 112 of the Constitution ; Act No. 40 of 1880.
    2. And if the said appointed Judge accepts the trust, hut afterwards refuses to proceed in the trial of the case, after passing upon some preliminary matters, it is in the power, and the duty, of the District Judge, to appoint some other qualified attorney to act as Judge ad hoc.
    
    3. The absence of a witness for the defense is not a good ground for continuance when several continuances have already been liad, and the defendant has not shown proper diligence in obtaining the absent witness, and there are no reasonable prospects that the absent witness will he present at the time to which a continuance is asked. 33 A. 1344 ; 10 A- 478; 21 A. 273 • 22 A. 468; 33 A. 681; lb. 1111; 16 Texas, 445.
    4. It is in the discretion of the court to permit or refuse the witnesses to be present in court during the trial, and he can make whatsoever order, in reference to the same, that suits the circumstances of the case. Holt, 689; 30 Mo., 236 ; 27 Ga., 287 ; 29 Cal. 622; Moody & M. 329; S. R. Rex vs. Brown, 4 Car. & P., 588, note; Bishop on Crim. Pro., 2d Ed., Yol I, Secs. 1086, 1087 and 1088.
    5. A statement made by the deceased within two minutes after receiving a mortal wound, as to the cause of the injury, is admissible as a part of the res gestee. 2 Dutch, 601; 2 Gratfe. 594; 2 Allen, 136; Waterman’s U. S. Crim. Digest, p. 288, Secs; 363, 362 and 364.; 11 Ga. 615; 3 Cnsh. (Mass.) 181; Roscoe’s Crim. Ev., 5th Am. Ed. p. 24.
    6. Confessions of the accused are admissible in evidence when the prosecution proves, to the satisfaction of the Court, that they were made voluntarily. 15 A. 568; 3 A. 497; 6 A. 167; lb. 694; 12 A. 895; 30 A. 881; 40 Ala. 54 ; 31 A. 192; Roscoe’s Crim. Evidence, p. 41.
    7. The fact that accused made the confession while under arrest, is not sufficient to exclude the evidence. 4 Parker, 319 ; 18 R. Y. 9; 3 Barr., 264; 11 Ga. 225 ; 6 Ired, 305; 44 Cal. 538; S. C., 2 Green’s Crim. Reps. 411.
    8. Ror is it sufficient to exclude them if he was also very much frightened at the time. 3 Pinker, 256 ; 69 Mo. 430.
    9. Eor if he was hound. 28 A. 9; 44 Miss. 322; 17 Ala. 192.
    10. The surrounding circumstances are matters for the consideration of the Jury in determining the credibility of the confession, and what force and effect should he given it. 47 Ala.-38; S. C., 1 Greenes Crim; Reps. 708.
    11. Although a confession is made under improper influences, yet a subsequent confession, which is free from such influences, is admissible as evidence. 3 Heisk. 408; 4 Smed. & Marsh. 31; 12 A. 895; 5 Jones, 315; lb. 420; 6 lb. 478 ; 20 Gratt. 724.
   The opinion of the Court was delivered hy

Pociiii, J.

Appealing from a sentence of death, on a conviction for murder, the defendant alleges, through hills of exception, numerous irregularities in his trial, which we shall consider seriatim.

1. He charges error in the appointment of J. G. Hawks, Esq., as Judge ad hoc, in the place of the District Judge, who had recused himself for the reason, that previous to his election, as Judge, he had been of counsel for the State in this case.

The complaint is, that J. W. Montgomery, Esq., having been first appointed, and having acted as Judge ad hoe, and having subsequently resigned the trust, the court had erred in appointing Hawks, a resident of Madison Parish, but should have appointed some District Judge of an adjoining District, to try the case.

Under Act 40 of 1880, which is the law regulating the recusation of District Judges, and the mode of trial of reeused cases, no attorney can. be compelled to accept the trust, or to continúe in the discharge of the duties after haviug once accepted, nor does the law require that the attorney appointed as Judge ad hoe, be a resident of the Parish in which the case is tried. He must have the qualifications of a Judge of the District Court in which the recused case is pending. J. G. Hawks, Esq., being a lawyer, otherwise qualified, and a resident of Madison Parish, which is included in that District, was competent to discharge the duties of Judge ad hoe in the case, and hence there was no error in liis appointment.

The complaint of the accused of the refusal of the Judge to grant him a continuance is not well founded, under the circumstances of this case, which had already been tried, and had been remanded from this Court, and in which three successive continuances had previously been obtained, on account of the absence of the very witness whose absence was made the ground of the motion for the continuance which was refused. The circumstances under which the motion was overruled, subject the question to the rulings recently made by this Court in the following eases: State vs. Fulford, 33 A. 681; State vs. Hoonsley, same, 1111; State vs. Fisher, same, 1344.

3. The Judge did not err as charged, in allowing one of the State witnesses to remain in the courtroom after he had testified, and after the Judge had ordered all the witnesses in the case to be separated.

All orders touching the separation of witnesses, are matters peculiarly within the discretion of the Judge, with which the Appellate Court will not interfere: 27 Ga. 287; Bishop on Criminal Procedure, 2d Ed., Vol. I, Secs. 1086, 1087 and 1088.

4. The accused next complains of the ruling of the Judge in admitting proof of the statements of the deceased, touching the person who had shot him, immediately after he had been shot, to a witness who had heard the shot, and the cry of the deceased, and had hurried to the spot which he reached about two minutes after the shooting, but not in the presence of the accused.

After considering several authorities on this point, we have reached tlie conclusion that this declaration was properly admitted in evidence as part of the res gestae. Com. vs. M. Pike, 3 Cush. (Mass.) 181; Roscoe’s Crim. Evidence, p. 24; Waterman’s Digest, pp. 288, 361, 362 and 364.

5. Tlie next error charged has reference to the admission in evidence of the confession of the accused, made under the following circumstances :

Immediately after the homicide, which had caused great excitement in the Parish, the accused had crossed over in the State of Mississippi, at a distance of about 15 miles, where he was captured at a house in which he was spending the night, a short time before day, by a body of eighteen or twenty men, well armed, but not authorized by any requisition to make the arrest in Mississippi, nor sworn officers of the law, who immediately hound the accused, a hoy about 18 years of age, by tying a rope around his arms and around his neck, and at once began, their march towards Carroll Parish.

During the journey, the accused, after being warned that his statements touching the homicide might he used against him on his trial, made a confession of his guilt, which he repeated after he and his captors had reached the Parish of Carroll.

• We cannot conceive how it can he maintained that a confession made under those circumstances, is a free and voluntary confession, within tlie meaning of the numerous adjudications of our own as well as of the1 Courts of our sister States, on this important question.

The fact that the rope around tlie arms of the accused had been removed when he made the confession, unaccompanied by proof that the rope had been removed from his neck, is not sufficient to remove the irresistible impression that the accused, in the hands of a large body of armed ipen, who liad taken him from the bed in which lie was asleep, had tied him by the arms, put a rope around his neck, was not, and could not he in a state of mind under which he could make a free and voluntary confession of guilt, uninfluenced by fear or not alarmed by tlie dread of his numerous captors.

We have examined and fully considered the numerous authorities relied on by the Attorney General in support of the admissibility in evidence of confessions made by prisoners while in custody of officers, while in jail, and even when in irons, but we have found no cases, and have no hesitation in asserting that none can he found, justifying the admission of the proof of a confession of guilt made by a young captive while in the hands of a hostile body of armed men, not known to him as officers of the law, and with a rope around his neck, and we shrink from the responsibility of establishing such a dangerous precedent.

The ruling of the Judge on this iioint was erroneous, and manifestly to the great injury of the accused, and hence the case must he remanded.

It is, therefore, ordered, that the verdict of the jury he set aside, and the judgment of the lower court reversed, and that this case he remanded to the District Court for further proceedings.  