
    No. 91
    KOSHIENSKI v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7210.
    Decided Jan. 17, 1927
    Mauck, PJ., Sayre and Middleton, JJ., of the fourth district, sitting.
    465. ERROR — Where upon trial in a murder case, evidence of a confession is introduced through a witness other than the defendant, it is error for the trial judge to overrule questions of defendants’ counsel which would tend to show the confession was not voluntary.
    480. EVIDENCE — Where witness other than defendant through his testimony, introduces thé confession of accused, such is not mere admission of guilt and requires preliminary proof that same was voluntary.
    Attorneys — Victor Conrad; Henry DuLau-rence and D. F. Anderson for Kishienski; E. C. Stanton and M. J. Meyer for State; all of Cleveland.
   MIDDLETON, j'.

John Koshienski was convicted in the Cuya-hoga Common Pleas of murder in the first degree with a recommendation of mercy. This is a proceeding in error, going to the exclusion of testimony by the trial court. The facts are, that one detective Funk had been working on the case, and had been largely responsible for bringing Koshienski to trial. Upon the witness stand, Funk through the qqueqsqtqiqonqqiqnqg of counsel, brought out almost verbatum .a signed confession of Kosh-ienski made before policemen. No objection was made to this testimony either by the state or Koshienski and the trial court was satisfied to let the evidence go to the jury without looking into its competency.

Thereupon counsel for Koshienski attempted to bring out the facts that the confession admitted in evidence was gotten by force, and duress. Questions put to both Koshienski and Funk relative to bringing this fact to the attention of the jury were objected to by the state and sustained. The Court of Appeals held:—

1. The counsel for the state argues that these admissions of Funk were mere admissions of guilt. This is not the case, they go much further than that, they are a complete confession of guilt and require preliminary proof that such confession was voluntary.

2. In weighing the confessions, the jury must take into consideration all the circumstances surrounding them, and under which they were made and also necessarily consider those facts upon which their admissibility, as having been voluntarily made, debends. 12 OA. 364.

3. For this reason the trial court committed error in sustaining the objections to counsel’s questions prejudicial to a fair trial for Koshienski.

Judgment reversed.

(Mauck, PJ., and Sayre, J., concur.)  