
    (103 So. 283)
    No. 26900.
    STATE v. ROBERSON et al.
    (Feb. 2, 1925.
    Rehearing Denied March 2, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    I. Criminal law &wkey;s577 — Refusal of continuance in murder prosecutions held erroneous.
    
    Court erred in refusing continuance where counsel were given only four days in which to prepare for defense of two wholly distinct murder. prosecutions, of which four days one was a Sunday, and another not available to one of counsel because of a previous engagement already undertaken by him.
    2. Criminal law <&wkey;l 151 — Discretion of trial judge in granting or refusing continuance not interfered with except in extreme cases.
    Granting or refusing of a continuance lies in sound discretion of trial judge, which will not be interfered with except in extreme cases.
    3. Criminal law ¡@^519(3) — Confession held inadmissible as secured by “treatment designed to compel confession.”
    Confession obtained from defendant, who had been held in jail sequestered from his friends for over a month, after some throe to four hours’ questioning on third consecutive day thereof, and which defendant claimed to have made to get rid of his jailors, 7teld inadmissible as obtained by “treatment designed * * * to compel a confession,” within Const. 1921, art. 1, § 11.
    4. Jury <©=131 (13) — Not mandatory on court to select jury according to any prescribed form.
    Court is not required to have 12 jurors in box during voir dire examination, and jury may be selected in any way that permits accused to examine each juror, touching his qualifications and to exercise right to challenge for cause or peremptorily.
    5. Criminal law &wkey;>l l60 — Appellate court cannot review questions of fact touching innocence or guilt of accused.
    Appellate court cannot review denial of new trial when involving questions of fact touching guilt or innocence of accused.
    Overton, X, dissenting in part! but concurring in decree.
    Land, X, dissenting.
    Appeal from Sixth Judicial District Court, Parish of Ouachita; Fred 11. Odom, Judge.
    Howard Roberson and Luther I-Iays were convicted of murder, and they appeal.
    Reversed, verdict set aside, and new trial granted.
    George Wesley Smith, of Rayville, and Hugh T. Layne, of Shreveport, for appellants.
    Percy Saint, Atty. Gen., and David I. Garrett, of Monroe (W. I-I. Thompson, of Winnsboro, and Percy T. Ogden, of Crowley, of counsel), for the State.
   ST. PAUL, J.

Tlie defendants, Howard Roberson and Luther Plays, were jointly in-dieted, tried, convicted, and sentenced to death, for the murder of one Adolph Epsteine. Their appeal presents seven bills of exception. Before going into these we state the surrounding facts on which they are largely based.

I.

Swartz is a small settlement in the great gas fields of Ouachita parish; there the accused resided.

On the night of March 25, 1924, Adolph Epsteine, a small storekeeper near Swartz, unmarried and living alone, was secretly and brutally murdered in his store.

On July 26, 1924, the defendant Luther Hays was charged with an assault with intent to kill (wholly disconnected with the Epsteine murder) and was placed in the jail, where he has ever since been (and held mGommunicado until counsel was appointed for him in this case).

On the night of August 14, 1924, one D. A. Shumaker, an evangelist, was shot and fatally wounded in his tent at Swartz, for no apparent reason, and by some person or persons then unknown.

This aroused some public excitement in the parish, and, from investigations, made three parties were suspected of murdering Epsteine, to wit, these two defendants, Howard Roberson and Luther Hays, and also one Willie Stone, who seems to have disappeared from this case except in so far as his name appears in connection with a confession given bi the defendant 1-Iays, of which more hereafter.

On Wednesday, September 3, 1924, the parish grand jury met and indicted both these defendants for the murder of Epsteine, and also defendant Roberson for the murder of Shumaker.

On the same day Messrs. E. T. Lamkin and O. W. Easterling of the local (Monroe) bar were appointed to represent tbe accused “in their arraignment”; whereupon the accused were at once arraigned and pleaded not guilty, “with the reservation to file any preliminary proceedings later.” It will be . observed that Messrs. Lamkin and Easter-ling were appointed to represent the accused only in “their arraignment,” and it does not appear that these counsel took any further part in the defense of the accused.

On Monday, September 8th, the trial judge called a special session of court for the following Monday, to wit, September 15th.

On Wednesday, September 10th, the trial judge appointed, to represent the accused in both cases, Mr. Hugh T. Layne of the local bar, and Mr. George Wesley Smith of an adjoining parish, and fixed both eases for trial ' on Monday, September 15th.

These appointments were made at about 3 o’clock in the evening; or, at any rate, counsel received notice thereof only about that time. Whereupon, counsel immediately protested that the intervening four days, one a Sunday, would not afford sufficient time to prepare for the defense of two murder trials; and since the circumstances of the two killings, as above indicated, show that there could be but one defense to either charge, to wit, an aMbi, it is clear that in those four days, one a Sunday, counsel must prepare to account for the whereabouts of both Hays and Roberson from sundown of March 25th to sunrise of March 26th, and of Roberson from sunset until after midnight of August 14th. But, counsel took nothing by their protest.

On Monday, September 15th, this case was called for trial. Whereupon they asked for a continuance on the ground that they had not had time to prepare their defense. To which they annexed their own affidavit, and the affidavits of their counsel, as follows:

“1. Personally came and appeared George Wesley Smith who being duly sworn, says:
“That he is one of the attorneys appointed to defend Howard Roberson and Luther Hays, charged with the murder of Epsteine, and Howard Roberson, charged with the murder of Shumaker; that he and Hugh T. Layne, were appointed Wednesday, September 10th, at 3:30 o’clock in the afternoon, and that he saw his clients for the first time in his life shortly thereafter; that he obtained from his clients durin'g an interview, lasting over two hours, all the information possible at that time; that he was compelled to be in Little Rocic, Ark., on Tlmrsday, to fill an engagement previously made, returning to Monroe about 5 o’clock on Eriday morning; that he entered upon the active preparation of these cases before 8 o’clock on the same morning, and that every waking hour since that time has been spent in preparing these eases for trial.
“Affiant states that on Friday he went to Swartz and spent a good share of the day there interviewing and searching for witnesses; that Saturday was spent in interviewing witnesses who came to Monroe, or whom affiant found in Monroe; that the greater part of Sunday was spent in and around Swartz, hunting witnesses; that Friday night, Saturday night, and Sunday night affiant spent in his office until late in the night searching out the law applicable to the case; arranging and classifying the evidence already secured, and in preparing motions which he felt ought to be filed.
“Affiant states that he has ‘been diligent, and has done everything humanly possible to prepare these cases for trial, but has not been able to do so.
“Affiant was appointed by this court to defend these men charged with two murders, and he feels it his duty to inform the court as to the situation, and to state to the court that it has been impossible to get these cases ready for trial within the short time intervening between the appointment and the trial, and, aside from that, affiant feels that he owes it to himself to leave in the record of this case, his own protest, as a citizen, as a lawyer and officer of this court, and as one of the attorneys for the accused, against any unseemly haste in judicial .proceedings where the life or liberty of a human being is at stake, and particularly the unseemly haste in this case.
“Having done so, affiant feels he has done his duty to the court, to himself, and to his client, and let come what may his own conscience will henceforth remain untroubled.”
2. “Personally came and appeared Hugh T. Layne, who being duly sworn deposes and says:
“That he is one of the attorneys appointed by this honorable court to defend Howard Roberson and Luther Hays, charged jointly with the murder of Adolph Epsteine, No. 17691 on the criminal docket, and to defend Howard Roberson, charged with the murder of Shumaker, ,No. 17692, on the criminal Docket.
“That he and George Wesley Smith, were appointed, Wednesday September 10th, at 3:30 o’clock in the afternoon, and that they saw their clients, for the first time, some time immediately after their said appointment.
“That said cases, both of them, were set for trial on Monday September 15, 1924, under the protest and without the consent of either counsel so appointed.
“That he has read the affidavit of George Wesley Smith, pertaining to and setting out the handicaps and lack of time to prepare a defense for the accused, and that all of the facts therein set out are true, and he does hereby corroborate each and every fact so stated therein.
“Affiant further declares under oath, that for the following reasons, he nor his associate, George Wesley Smith, nor both of them jointly, have not had sufficient and a just period of time 'in which to prepare a proper defense. for the accused.
“He has had only three clear days since his appointment to prepare a defense for the trial of two murders, cases both set for trial the ■same day.
“That for lack of sufficient time, he has not been able to locate and talk with a number of persons whose testimony would be of a material benefit to the defense, and that if he had sufficient time, he would locate said parties and have them summoned. * * * ”

What then transpired is shown by the minutes of court for that day, which we here transcribe in full; after which the trial proceeded, with the result stated in the opening paragraph of this opinion. Said minutes being as follows:

“The accused and each of them being present in open court and represented by their attorneys, Hons. Geo. Wesley Smith and Hugh T. Layne, the accused, with permission of the court first had and obtained, withdrew their former pleas of not guilty, and filed a motion to quash. Motion taken up. Testimony adduced and closed. Motion to quash overruled. Bill of exception reserved by the accused. The accused and each of them were duly arraigned and pleaded not guilty. Case set for trial on this date. Motion for continuance filed, taken up and árgued. At this hour, 3:30 p. m., the list of witnesses furnished by counsel for the defendants to be summoned in this case were called, 32 in number, 30 of whom answered present. The sheriff reporting that one witness, to wit, M. C. Lofton, is absent from the state of Louisiana, and has been for some time; and one witness, Mr. KinCade, is absent from the parish, and no service has been made upon him. It is now ordered that the further trial of this case be postponed until 7:30 p. m. on this date, and that, in the meantime, all witnesses called and who have answered shall assemble in the courtroom in charge of the sheriff, in order that counsel for defendants may have an opportunity to examine them and make further preparations for the trial of the case. It is further ordered that all persons except said witnesses, the sheriff, and his deputies, counsel for defendants, and defendants be excluded from the courtroom during this recess of the court. It is further ordered that the witnesses answer all such questions as may be propounded to them by counsel for defendants. The motion for continuance is overruled by the court; this time being allowed defendants in' which to prepare for the trial. Bill reserved by each defendant. Motion for severance filed ' on behalf of Howard Roberson. Motion for severance argued and overruled. Defendants reserve a bill. * * * ”

II.

Bills of Exception Nos. 2 and 4-— These bills will be considered together, ‘ as both relate to the time given counsel in which to prepare for defense. The first relates to their protest against the fixing of the case for the fifth day after their appointment. The other relates to the refusal of the trial judge to grant the continuance asked for.

In his per curiam to the former, the trial judge says:

“No good reason was suggested by counsel why they could not get ready for trial. Counsel are both experienced, able lawyers; there were no law points involved with which they .were not already familiar. All they had to do was to get in touch with the witnesses, all of whom live in the parish and are easily accessible.”

The above per curiam was written after the close of the trial, when the judge had seen the witnesses actually summoned toy defendant, and heard the law points actually made by counsel. But the answer is, that at the time counsel protested against the fixing of the case at a date so early, they liad not yet seen the accused, and knew nothing whatever about the case. And therefore it was no more possible for the trial judge than for counsel, or for this court, to know what other witnesses the defendants might have brought, and what other law points might have been raised, had counsel been given more time in which to prepare. So that this per curiam answers itself.

In his per curiam to the bill taken to his refusal to grant a continuance, the trial judge says: .

. “Counsel suggested to the court, and filed affidavits that they had not had sufficient time in which to prepare for the trial of the accused, but they did not suggest to the court, nor do they set out in the affidavits which they have filed and which are attached hereto, just why they could not get ready, that is, just what there was to do that could not be done in the time allotted. As to the law involved, no complicated questions arose;’ counsel did not suggest to the court that they did not have time to familiarize themselves with the law applicable. They are both experienced, able lawyers, and the court was not informed that they needed more time in which to look up the law.
“It was not suggested, nor is it set out in the affidavits attached, that they could not get in touch with all witnesses named^by their clients. Mr. Smith in his affidavit sets out that he. spent some time Friday “searching” and “hunting” for witnesses, but it has not been claimed that he did not find all witnesses wanted; so far as the court was informed all the witnesses were summoned, and they all answered when called on Monday morning except two; one of whom was out of the state, and one out of the parish. No delay was asked on account of this absence. After all defendants’ witnesses appeared, the court recessed from 3:30 to 7:30 so that counsel could have access to the witnesses, as is set out on the minutes, the court’s ruling being copied therein.
“The defense in this ease was an alibi. Numerous witnesses testified that both defendants were elsewhere when deceased was killed. Evidently the jury did not believe them.
“After hearing the case, I am thoroughly satisfied that counsel had all the time necessary.”

The record shows that the trial began Monday night, September 15th, and continued through Tuesday and Wednesday, September 16th, 17th; that the case was submitted to the jury on Wednesday, September 17th, who brought in their verdict on Thursday, September ISth; that defendants’ motion for a new trial was overruled on Saturday, September 20th, on which day also defendants were sentenced, their bills of exception signed, and their appeal taken.

It is quite true that the matter of granting or refusing a continuance lies in the sound discretion of the trial judge, which will not be interfered with unless in extreme cases, but in our opinion this is one of those extreme cases. As we have seen, on the afternoon of Wednesday 10th the case was fixed for trial for the forenoon of Monday the 15th; that is to say, on the fifth day thereafter. To say nothing of capital cases in which, this court has held the fixing of such a case within less time than sice days to have been improper, we also find one ease in which this court has held that a fixing for the sixth day did not allow sufficient time for preparation, to wit, State v. Martin, 145 La. 35, 81 So. 747, and no case in which any less time was thought sufficient. We find two cases in which a fixing on the seventh day thereafter was held sufficient. State v. Johnson, 36 La. Ann. 852, and State v. Chitman, 117 La. 950, 42 So. 437. Not once has this court approved the fixing of such a case for any earlier than the seventh day thereafter except in State v. Gilliard, 143 La. 604, 78 So. 978, wherein the case was fixed for the sixth day after arraignment; but it appeared that counsel had been employed and at vyorlc on the case more than ten days before the trial.

On the other hand, this court has approved of the fixing of such cases for the eighth day thereafter. State v. Satcher, 124 La. 1035, 50 So. 835.

In the case before us we find that counsel were given only four days in which to prepare for the defense of two wholly distinct capital cases, of which four days one was a Sunday, and another not available to one of the counsel because of a -previous engagement already undertaken by him.

We think the trial judge erred in refusing the continuance.'

III.

Bill of Exception Vo. 7. — This hill was reserved by the defendant Says to the admission of an alleged voluntary confession made by him. The confession was made on the night of August 28th. It will be remembered that this defendant had been held in jail, sequestered from all communication with his friends, from July 26th; and that Shumaker was assassinated during that time, to wit, on Apgust 14th, this last crime being laid upon the codefendant herein (Roberson). This confession was obtained after some three to four hours questioning of Hays by the sheriff and his deputy; this being the tlwrd questioning to which Hays had been subjected by them on as many consecutive days, the other questionings lasting some half hour or more, and resulting in nothing but causing the defendant to break down and cry.

It does not appear that Hays was subjected to any torture or other harsh methods for the purpose of extorting a confession, but he says that he made the confession for the purpose of ridding himself (“getting shet”) of his jailors who seemed bent on obtaining his confession of the crime.

Whether or not the defendant Hays was justified in his conclusion that he could not “get shet” of the sheriff and his deputies without making some sort of confession, or admission, or statement about the Epsteine murder, may be judged from the foregoing recital, and from the following signed public statement issued “to the people of Ouachita parish” by said sheriff; and published in the daily “Monroe News Star,” of September 2d, 1924, viz:.

“On Thursday, August 14, 1924, Mr. D. A. Shumaker was’shot and killed at Swartz, La., about midnight, while he and his associates were conducting a series of religious services. I was notified of this crime about 2 o’clock a. m. on the morning of August 15th, and Mr. Roper (the deputy) and myself immediately left for the scene of the crime. We worked night and day in order to run down every clue possible and to bring the guilty parties to justice; therefore, with the help of the Lord, according to evidence and information obtained, within one week after the crime was committed we had all of the accused parties in custody.
“Saving thus far succeeded in the Shumaker Case, we then felt that we could solve the mysterious murder of Adolph Epsteine who was ’brutally murdered in his store on the night of ■March 25, 192J/. Maintaining the method of a secret investigation with reference to the movements and evidence obtained, we worked several days .on the Epsteine Case, and finally, according to information and evidence obtained, and within another week’s time, placed the parties responsible for this murder in jail. * * * ” (Italics ours.)

The statement then concludes with a statement that the evidence obtained has been submitted to the district attorney, and would be acted on by the grand jury in special session.

The defendants were indicted next day.

We do not think the confession of this defendant was such a confession as the Constitution of this state permits to be used against one accused of crime. The Constitution of the United States provides simply, “No person * * * shall be compelled in any criminal case to be a witness against himself * * * ” (Amendment 5); nevertheless, in a case recently decided by the Supreme Court of the United States (Ziang Sung Wan v. United States [No. 127, of October term 1924, decided October 13th], 45 S. Ct. 1, 69 L. Ed. —), where the facts were somewhat similar to the case at bar, though undoubtedly far more flagrantly coercive, it was held that a confession was not voluntarily given merely because given without threat or promise, but that:

“A confession is voluntary in law if, and only if, it was 'in fact, voluntarily made. _ A confession may have been given voluntarily, although it was made to .police officers whilst in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise.” Citing Bram v. United States, 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 588, and others.

See, also, State v. Alexander, 109 La. 557, 33 So. 600; State v. Albert, 50 La. Ann. 481, 4S5, 23 So. 609.

But our own Constitution of 1921 goes much further than does the Constitution of the United States, or any former Constitution of this state, perhaps even further than the Constitution of any other state. It says (article 1, § 11):

“No person shall be compelled to give evidence against himself in a criminal case or in any proceeding that may subject him to criminal prosecution, except as otherwise provided in this Constitution. No person under arrest shall bo subjected to any treatment designed by effect on body or mind to compel confession of crime, nor shall any confession be used against any person accused of crime unless freely and voluntarily made.”

And our conclusion is that any persistent effort to obtain a statement from a person in custody, by repeatedly subjecting him to cross-examination after he has refused to make such statement, is “treatment designed by effect on body or mind to compel a confession of crime”; and that a confession so obtained cannot be used against an accused.

IY.

Bill of Exception No. 5. — The bill was reserved by the defendant Roberson to. a refusal of the trial judge to grant him a severance on the ground that the state intended to use a confession given by Hays, in which the latter implicated this exceptor. State v. Taylor, 45 La. Ann. 605, 12 So. 927; State v. Lee, 46 La. Ann. 623, 15 So. 159; State v. Desroche, 47 La. Ann. 651, 17 So. 209.

But since we are granting a new trial herein because defendants were not granted the continuance to which they were entitled, and since we are now holding that the confession of Hays is inadmissible even against him, we find no reason for passing upon this bill at this time, for that is the sole ground on which defendant Roberson applies for a severance, and the only way in which he might be prejudiced by a joint trial. That confession being now excluded, he is no longer entitled to a severance on that ground when again tried.

V.

Bill of Exception No. 6. — This bill was taken to the refusal of the trial judge to have a full panel of twelve jurors present in the jury box in front of the accused at all times while the jurors were being examined on their voir dire. Of this bill counsel for defendants say, “We believe that it is the better practice to do so. We know of no lato to make it mandatory. * * * We * * * submit (the point) without further remarks.” We think we might also dispose of it in like manner. But we prefer to say that since it is not mandatory on the court to select a jury according to any prescribed form, it follows that a jury may be selected in any way that permits the accused to examine each juror touching his qualifications, and to exercise as to such juror his right to challenge for cause, or peremptorily, as the case may be.

VI.

Bill of Exception No. 3. — This bill has reference to a motion to quash the special venire of jurors called for the special term of court. The granting of a new trial herein makes further inquiry into this bill unnecessary.

VII.

BUI of Exception So. 1. — This is a formal exception to the refusal of the trial judge to grant a new trial on the ground that the verdict was contrary to the evidence. It presents nothing for this court to pass upon since we cannot review questions of fact •touching the guilt or innocence of the accused.

Decree.

The judgment appealed from is there reversed as to both defendants, and it is now ordered that the verdict herein be set aside, and both defendants granted a new trial according to law.

LAND, J., dissents and hands down reasons.

OVERTON 'and BRUNOT, JJ., concur in decree.

THOMPSON, J., takes no part.

OVERTON, J.

I concur in’ the views expressed on bills of exceptions Nos. 2 and 4, relative to the refusal to grant further time to prepare for trial and to grant a continuance. With respect to bill No. 7, relative to the confession made by Luther Hays, I dissent. In my view, the evidence does not justify the conclusion that Hays was subjected to treatment designed by effect on body or mind to compel a confession, but shows that the confession was made voluntarily. With respect to the remaining bills, as they are not passed upon, I withhold my conclusions.

I therefore concur in the decree handed down in the case, but only on bills 2 and 4.

LAND, J.

(dissenting). The contention in this case that counsel did not have sufficient time in which to prepare for the trial of the accused is shown to be without merit, by the following statement of the trial judge appearing in the per curiam to the bill reserved:

“They (counsel) did not suggest to the court, nor do they set out in the affidavits which they have filed and which are attached hereto, just why they could not get ready — that is, just what there was to do that tjhey-could not do in the time allotted.
“As to the law involved, no complicated questions arose — counsel did not suggest to the court that they did not have time to familiarize themselves with the law applicable. They are both experienced, able lawyers, and the court was not informed that they needed more time in which to look up the law.
“It is not suggested, nor is it set out in the affidavits attached, that they could not get in touch with all the witnesses named' by theii; clients. Mr. Smith, in his affidavit, sets out that he spent some time Friday “searching” and “hunting” for witnesses, but it has not been claimed that he did not find all the witnesses wanted; so far as the court was informed all the witnesses were summoned, and they all answered when called on Monday morn- ’ ing, except two, one of whom was out of the state, and one out of the parish. No delay was asked on account of his absence. After all of defendants’ witnesses appeared, the court' recessed from 3:30 to 7:30, so that counsel could have access to the witnesses, as is set out on the minutes, the court’s ruling being, copied therein.
“The defense in this case*was an alibi. Nu-' merous witnesses testified that both defendants were elsewhere when deceased was killed. Evidently the jury did not believe them. After hearing the case, I am thoroughly satisfied that counsel had all the time necessary.”

At 3:30 p. m., on the day of the trial, 30 witnesses out of the 32 summoned answered present, and counsel were given 4 hours to examine them, the trial of the case being, postponed until 7:30 p. m.

It appears from the per curiam to this bill that all of the witnesses for defendants-lived in the parish of Ouachita, arid were easily accessible. On September 9th the case' was fixed for trial for September 15th, a delay of six days, for the summoning and interviewing of witnesses.

No motion for continuance was asked on' the trial of the case because of the absence of any material witness. The setting aside’ of the conviction and sentence-in this casé,■under the facts disclosed by the record, is, in my opinion, clearly erroneous.

What constitutes a reasonable time within which to present a defense is a matter left to the sound discretion of the trial judge, and his ruling will not be disturbed on appeal, unless manifestly prejudicial. State v. Eaton, 144 La. 582, 80 So. 884; State v. Murry, 136 La. 255, 66 So. 963; State v. Jack, 139 La. 885, 72 So. 429.

In State v. Chitman, 117 La. 950, 42 So. 437, the court said;

“There was an interval of six clear days between June 7th, when counsel was assigned to the accused, and June 14th, when the case was finally called for trial, and we are not prepared to say that the trial judge abused the discretion vested in him in holding that the defense miglrt have been prepared within that time, the more particularly as it is not suggested that the accused were unable to obtain their witnesses, and we are not informed in what respect they could have made a better defense had a new trial been granted.”

Without ignoring absolutely the statement of the trial judge in this case, I do not find it possible to hold otherwise than that his ruling was correct.

2. The confession of the defendant Hays was written on a typewriter and signed by him, and was read to him before being signed. The defendant himself does not claim that any force, violence, promise, or “third degree” methods were used to extort or induce the confession. He merely testifies that he made the confession because he “was mad” and “wanted to get shet of them two sheriffs.” ,

The confession was made in the presence of the sheriff and his deputy in the office of the city judge of Monroe, La., and later on was repeated in the presence of these officers and two other persons, one of whom reduced the confession to a typewritten statement.

• There is not a line of testimony in.,the record to show any duress, “sweat box'” methods, or promises of any kind to compel the confession made by defendant.

The convincing and unanswerable reason why the confession is to be taken as free and voluntary in this case is, that it is stated to be so in the affidavit to the typewritten statement, which was read to the defendant Hays before being signed by him, and, in addition to this, defendant was asked if his statements were free and voluntary before ■ he signed the affidavit, and he answered affirmatively.

Defendant does not pretend that he was forced into signing this affidavit; on the contrary, he admits, and the officers testify, that there was no. duress of any kind used to induce the confession.

The mere testimony of the accused, uncorroborated, that he made the confession, because he “was mad” and “decided to answer any kind of question they asked Yes or No or anything” is evidently entitled to no weight, in the face of the overwhelming evidence in this ease that the confession was freely and voluntarily made.

A confession is free and voluntary, where the mind or will of the accused is not forced, as in duress, to the making of any particular statement.

It was held in State v. Doyle, 146 La. 973, 84 So. 315, that the underlying and fundamental principle which is to be applied in excluding confessions is that, under certain circumstances, they may be untrustworthy as evidence, and the proper inquiry in such ease is; Was the inducement such as that there was any fair risk of false confession? Wigmore on Evidence, vol. 1, par. 822, p. 932.

If we are to disregard the testimony of all of the witnesses in this case, and to ignore all of the circumstances under which the confession was made, and accept the uncorroborated testimony of the accused, which is not sufficient even if true to- exclude the confession, then it is clear that all that is necessary in any case is for the defendant to taire the witness stand and, testify that the confession was forced, either by effect on body or mind, and this will be sufficient ground for excluding the confession as not freely and voluntarily made.

Such a rule, if adopted, will abolish entirely confessions made by accused persons in criminal cases as evidence in such cases, and society will be left in many cases at the mercy of the criminal classes.

The provision contained in the present Constitution that, “No person under arrest shall be subjected to treatment designed by effect on body or mind to-compel confession of crime” necessarily applies to all kind of confessions, whether obtained by threats, violence, or “third degree” methods.

This provision, however, was not intended to change the law of evidence on the subject of the admissibility of confessions, for the plain reason that the Constitution of 1921 expressly states in connection with the clause above cited, “nor shall any confession be used against any person accused of crime unless freely and voluntarily made.” This has always been the law of this state. Nor does the provision in our Constitution that “no person shall be compelled to give evidence against himself in any criminal case, or in any proceeding that may subject him to criminal prosecution” effect any change in the law of evidence as to the admissibility of confessions, as was expressly decided by this court in State v. Doyle, 146 La. 973, 84 So. 315.

As was said by Mr. Justice Provosty, as the organ of the court, in the Doyle Case:

“Now, as before, the admissibility of a confession depends upon whether it was voluntary; and the question of under what circumstances a confession is to be regarded as having been voluntary is precisely the same now as it has ever been. To contend the contrary is simply to lose sight of what is contained in all the law books upon the subject of evidence in criminal cases.
“In those books, and in our own jurisprudence, the point is firmly settled that the fact that the confession was made while under arrest and in answer to questions propounded by a police officer does not render it inadmissible, so long as it was voluntary, as voluntariness is understood in the law of evidence. 16 Corpus Juris, 719; 1 R. C. L. 566; IS L. R. A. (N. S.) 801; Underhill, Crim. Ev. 174; State v. Mulholland, 16 La. Ann. 376; State v. Hogan, 117 La. 866, 42 So. 352; State v. Berry, 50 La. Ann. 1309, 24 So. 329; State v. Howard, 127 La. 435, 53 So. 677; State v. Rugero, 117 La. 1040, 42 So. 495.
“In State v. Canton, 131 La. 255, 59 So. 202, and State v. Besancon, 128 La. 85, 54 So. 480, the interrogation was by the district attorney, an officer of much greater authority than a policeman or chief of police. In fact, the very ease so largely relied upon by the defense, Bram v. U. S., 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568, has as one of its syllabi the following: ‘The mere fact that a confession is made to a police officer while the accused is under arrest, in or out of prison, or is drawn out by his questions, does not necessarily render the confession involuntary.’ ”

I am, therefore, of the opinion that the confession made by the 'defendant Hays in this case was free and voluntary, and that said confession was properly admitted in evidence by the trial judge.

3. The defendant Roberson moved for a severance, averring “that his defense will be directly opposite and opposed to and antagonistic to the defense made by the said Luther Hays.” Defendant also alleged in said motion ‘“that he understands that.the state of Louisiana upon the trial will attempt to prove an alleged confession made by Luther Hays, indicted jointly with respondent, and charged in the said indictment with the crime of murder.”

In the per curiam to this bill the trial judge assigns the following reasons for overruling the motion for severance:

“It is not set out in what way the defense of Roberson is antagonistic to that of Hays. The court at the time informed counsel tliat the alleged confession of Hays would not be admitted as evidence against Roberson. Hays’ confession was admitted, and the jury was then instructed, at the time it was admitted, that it was evidence only against Hays, and in the court’s final charge the jury was especially instructed that the confession was binding and was evidence only against him who made it. No injury resulted to Roberson. His defense and that of Hays was identical, an alibi.”

The argument that the motion for severance in this case is defective, because counsel for defendants were not allowed sufficient time within which to prepare the case, is thus exploded. The defenses were identical, an alibi, and were not antagonistic at all, and for this reason, and for this reason alone, it could not be set out in the motion for severance in what way the defense of Roberson was antagonistic to the defense of Hays.

This is not a ease where the confession of each defendant incriminates the other, and such confessions were designed to be used in evidence. Hays, alone, had confessed out of the presence of Roberson. Nor was the sole question in this case as to which of the two defendants committed the crime, as the only ground of objection to the admission of the confession of Hays was that it implicated Roberson, both being jointly indicted for the murder of the same person. There was no antagonism in fact between the defense of Roberson and the defense of Hays, each declaring that he was not guilty, because he was not present at the time and place of the commission of the homicide. The antagonism ought to appear when severance is applied for.

4. An indictment jointly charging several persons with murder necessarily involves conspiracy, and proof of conspiracy can therefore be admitted without a formal allegation thereof. Marr’s Crim. Juris. (2d Ed.) p. 849 (i).

In cases of conspiracy there can be no severance, and in such cases it has been uniformly held by this court that the confession of one of the conspirators, after the consummation of the common design, is admissible only as against the person making it, and that a codefendant is not prejudiced thereby, where the trial judge so instructs the jury. Marr’s Crim. Juris., vol. 11, p. 849 (J).

This was done in the present case, and I fail to see any prejudice to the defendant Roberson, to the admission of the confession of his codefendant and coconspirator, Hays.

Eor these reasons, I am of opinion that the conviction and sentence should be affirmed. I therefore dissent from the opinion of the majority of the court.  