
    Jackson v. The State.
    
      Indictment for Wanton. Killing of Horse.
    
    1. Admissibility of confessions as evidence. — All confessions are prima facie involuntary, and therefore inadmissible as evidence, and should not be allowed to go to the jury at all, unless affirmatively shown to be voluntary; and in determining their admissibility in the first instance, before they are allowed to go to the jury, the court should receive and hear any testimony offered by the defendant tending to show that.they were not made voluntarily.
    " Erom the County Court of Hale.
    Tried before the Hon. Jas. M. Hobson.
    The indictment in this case charged, in a single count, that Bob Jackson and Willie Hopkins “ did unlawfully or wantonly kill á horse, the' property of Jake Cowan.” Jackson, being on trial alone, pleaded not guilty, but was convicted, and fined $300. On tbe trial, as tbe bill of exceptions states, Jake Cowan testified, as a witness for tbe State, tbat be bad, on several occasions, found “Paris-green” in tbe trough in wbicb be fed tbe borse, and, thinking tbat some one was attempting to poison tbe borse, placed tbe trough on a post in tbe centre of tbe stable; tbat bearing bis dog bark, a few nights afterwards, be went out into tbe yard, and found tbe defendant bolding tbe dog; “tbat be caught bold of tbe defendant, asked him what be was doing there, and called for help; that tbe defendant then and there made a confession,” to .the effect “tbat be was bolding tbe dog while Willie Hopkins was putting Paris green in tbe trough to kill tbe borse;” tbat be made no promises, offered no reward or inducements, and made no threats whatever to induce said confession; tbat bis borse was taken sick a few minutes afterwards, and died tbe next morning, being poisoned with Paris green. Said witness testified, also, tbat on tbe morning of tbe defendant’s preliminary examination before a justice of tbe peace, before tbe trial commenced, tbe defendant “ confessed to him tbat be held tbe dog for Willie Hopkins to go into tbe stable and put Paris green in tbe trough to poison tbe borse, and tbat said Hopkins bad promised to give him ten dollars for doing so;” and tbe witness said, “ tbat no threats were made, no promises, inducements or rewards offered, but said confession was voluntary.” “Here tbe defendant’s counsel stated to tbe court, tbat they were prepared to prove by witnesses, who bad been sworn and put under tbe rule, tbat said confession was not voluntary — that tbe prosecutor promised defendant, if be would make said confession, tbat be should be released, and they would do nothing to him, and be would give him ten dollars; and tbat said defendant made said confession under tbe influence of these promises.” Tbe court . refused to allow said evidence to be introduced, but stated tbat it might be introduced hereafter, and tbat tbe jury would be allowed to pass on tbe question whether said confession was voluntary, in view of all tbe evidence; to wbicb ruling tbe defendant excepted,” and also to tbe.admission of said confession as evidence before tbe jury. Tbe defendant’s witnesses were afterwards introduced, and testified as above stated; and tbe defendant then moved tbe court, on all tbe evidence adduced, to exclude tbe confessions as evidence, wbicb motion was overruled. Tbe court instructed tbe jury, “tbat tbe testimony of said Jake Cowan made out a prima facie case tbat said confession was voluntary, and be bad therefore allowed it to go before the jury; but he had also allowed the testimony of the defendant’s- witnesses to go before them, and instructed them to carefully consider the evidence on both sides, to decide whether said confession was voluntary, and, if in their judgment it was voluntary, to decide what weight or credibility they-would give to it.” To this charge, also, the defendant excepted.
    Coleman & Coleman, for the appellant,
    cited Bob v. State, ■32 Ala. 568; Washington v. State, 53 Ala. 29; Redd vi State, 69 Ala. 259; Young v. State, 68 Ala. 569.
    - Thos. N. McClellan, Attorney-General, for the State.
   CLOPTON, J.

— The established doctrine in this State is, that all confessions are presumptively involuntary and inadmissible; and that it is incumbent on the State to show’, prima facie, that a confession was freely and voluntarily made, before it can be admissible in evidence to the jury. The determination of this inquiry, as. the determination in respect to the admissibility and competency of all evidence, lies within the province of the court. The inquiry, however, should not be determined on ex-parte evidence. When- , ever the admissibility of any evidence depends on extraneous facts, both parties should be allowed to introduce proof as to such facts. In determining whether the confession proceeded from the volition of the accused, or from an influence improperly exerted, the judge should hear and determine the question of admissibility, not merely upon such showing as the prosecutor may deem proper to make, but also upon the proof which the defendant may introduce, in order that he may not be prejudiced by the admission of illegal- evidence. After the prosecution has shown a-prima facie case, it is the right of the accused to introduce testimony to rebut, and .to show that the confession was not voluntarily made; and in determining whether a prima facie showing of a- voluntary confession is made, the court should consider the testimony introduced by both parties. Rufer v. State. 25 Ohio St. 464; People v. Soto, 49 Cal. 67.

The error in refusing to allow the defendant to introduce proof that the confession made at the time of the preliminary examination was not voluntary, but. was induced by promises of release and reward, is not cured by allowing such evidence to be subsequently admitted to the .jury. It is true, that if the jury are not. satisfied, in view of all the evidence, including the facts and circumstances of the confession, that it was Lee and voluntary, they may reject it as wanting in credibility; but they can not review or disregard the determination of the court as to its admissibility. Redd v. State, 69 Ala. 255; Young v. State, 68 Ala. 569. 'The prejudice to the defendant consists in admitting to the jury-evidence, which may have been shown to be inadmissible if the court had allowed the opportunity, but which they are bound to regard.

Reversed and remanded.  