Appellant Montes was found guilty of second degree murder, Ind. Code § 35-1-54-1, being Burns § 10-3404; and appellant Farrar was found guilty of first degree *392 murder, Ind. Code § 35-13-4-1, being Burns § 10-3401, in a trial by jury. Each received a sentence of life imprisonment. Their joint trial was conducted by the Honorable Saul I. Rabb. Their appeals to this Court have been consolidated for consideration by us.
Mr. David Doty was employed by the State as houseman to oversee the operation of a work release center located in a house in a residentiаl neighborhood in Indianapolis. He lived in the house along- with fifteen inmates of the Indiana Reformatory among whom were appellants Montes and Farrar. Resident inmates were permitted to leave the house to work at jobs in the city and to leave the house on other occasions by special permission. On March 13, 1973, Doty was bludgeoned to death in the center in the early morning hours. The first officer to investigate the crime arrived at the center at 5:30 a.m. and found Doty’s body lying in a pool of blood in an anteroom adjacent to the kitchen and back door of the house. He had died of multiple skull fractures and brain damage. An iron bar wrapped in a towel was found next to the body. The checkbook of the victim and gloves bearing bloodstains were found in a garbage can on the back porch.
Appellants were convicted almost entirely upon the confessions which they gave to the police at the police station. The first question raised in this appeal is the admission into evidence of those statements. The surrounding circumstances are these. After the first officer arrived at the house, he was joined by several others. Thirteen inmates, including appellants, were in the house at the time. Two had signed out and were at work. Those two were picked up from work and returned to the house. All fifteen were then perfunctorily interviewed at the house. There, an inmate by the name of Radford informed the police that he had eaten breakfast with the victim before leaving for work that mоrning at 4:20 a.m., and, at that time, he had seen the appellant Montes coming up the stairs, and that Montes had asked him the time. Appellant Montes confirmed this event and added that he had *393 asked the time because he had no clock. An examination of Montes’ room revealed an electric clock which appeared to be running and in order. Some suspicion was cast upon him by these statements. Appellant Farrar, who was Montes’ roommate, stated that he was asleep at the time of the crime. Following this type of brief questioning, all inmates were taken to police headquarters in three or four squad cars.
Appellant Montes was given an advisement of rights at the police station in conformity with the mandate of
Miranda
v.
Arizona,
(1966)
Appellant Farrar was given a Miranda advisement in the late afternoon prior to any questioning and executed a written waiver. After consenting to and taking a polygraph test, he was confronted with Montes’ confession and admitted his participation in the crime.
At about 7:00 p.m. of the same day, Montes and Farrar wеre installed in an interrogation room with two of the interrogating officers. The statement of Montes was read aloud to both of them, and, three or four times during the reading, Farrar was asked whether the matter recorded there was true and he replied affirmatively and also offered minor corrections.
The following morning Montes and Farrar were taken to court and presented for the first time to a judge.
At trial, appellants’ counsel objected to the admission of their incriminating statements on the ground that such
*394
statements were the product of their illegal arrest or detention. The trial court overruled this objection. Such a contention, if supported, would require the exclusion of the statements. In
Davis
v.
Mississippi,
(1969)
“Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof. The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment. To make an exception for illegally seized evidence which is trustworthy would fatally undermine these purposes. Thus, in Mapp v. Ohio,367 U.S. 643 , 655,81 S.Ct. 1684 ,6 L.Ed.2d 1081 , (1961), we held that ‘all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.’ (Italics supplied.)”394 U.S. at 724 .
When, as here, the rule is invoked by the accused, and no warrant has authorized the police action, the burden is on the state to produce its evidence and prove that the arrest or detention was not illegal by Fourth Amendment standards.
State
v.
Smithers,
(1971)
In Indiana, the Department of Correction is charged by statute with the custody and training of persons committed by the courts to serve sentences of imprisonment in corree *395 ticmal institutions of this State. Ind. Code § 11-1-1.1-1, being Burns § 13-2501. According to Ind. Code § 11-7-9-1 through 11, being Burns §§ 13-140 through 13-151, said Department is required to establish a work-release plan and to promulgate rules and regulations governing its operation. Inmates selected for participation in the plan are released from confinement during the time necessary to travel in the free community to a place of employment, perform their work, and return to quarters designated by the Department. In March, 1973, furloughs from custody of those on work-release status were pеrmitted under certain circumstances for prescribed periods of time. Ind. Code § 11-7-9-10, being Burns § 13-149. While the prisoners in the plan may be quartered in minimum security housing within the free community, they, nevertheless, technically remain inmates of the institution to which they were committed and are in the custody of the Department of Correction. Burns, Rule (13-143)-8, being Dept, of Correction, Rule 8 (1968). An inmate’s participation in the plan may be terminated if he “conducts himself ... in a manner reflecting adversely upon himself, the parent institution or the depаrtment of correction.” Burns, Rule (13-143)-9, being Dept. of Correction, Rule 9 (1968).
The effect of the police here was to deny to the fifteen men confined in the house, including appellants, the privileges of the work-release program for a period of time sufficient to permit the police to question each man in detail. Weighing in favor of the reasonableness of this restrictive action was the hig’h probability that one of the fifteen had just demonstrated that he would kill for negligible benefit and was thereforе in a state highly dangerous, not only to citizens in the neighborhood should he escape the minimum security center, but also to fellow inmates with whom he was locked up in the center. Also, the killing had left the center without its lone resident superintendent at an early hour of the morning. On the other hand, the police have no authority to arrest for the purposes of questioning *396 absent probable cause sufficient to satisfy the mandates of the Fouth Amendment. Neither do the police have the authority to subpoenа witnesses for investigatory questioning, as does a grand jury.
However, we do not decide whether the police action in restricting the work-release privileges of appellants and their fellow inmates was illegal as in violation of rights guaranteed by the Fourth Amendment. We are convinced that, even though the restrictions placed upon appellants be considered illegal, the State carried its burden of showing that the incriminating statements of appellants were not generated by exploitation of any such assumed illegality.
In
Brown
v.
Illinois,
(1975)
“In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.” (Citation omitted.)95 S.Ct. at 2261 .
The Court reiterated the purpose of the Fourth Amendment’s exclusionary rule from
Elkins
v.
U.S.,
(1960)
“The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guarantee in the only effectively available way — by remov- | ing the incentive to disregard it.”95 S.Ct. at 2260 , quoting from364 U.S. at 217 .
The Court then went on to catalogue the factors to be considered by a court in deciding whether the state had successfully сarried its burden of showing that the state *397 did not obtain the confession by exploitation of an illegal arrest or detention:
“The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.” (Citations and footnotes omitted.)95 S.Ct. at 2261-62 .
In subsequent parts of this opinion, we determine that while the incriminating statements of appellants were gained in response to custodial police questioning, such statements were, nevertheless, made voluntarily. Appellants admit that each was given an advisement of constitutional rights in accordance with the Miranda case, and we hold that each gave a voluntary and intelligent waiver of those rights prior to interrogation. The record establishes that the inmates were prevented from carrying on their normal employment and activities at mid-morning when they were transported to the police station. Farrar was not questioned there at all until late afternoon when he made his incriminating admissions. Montes was questioned intermittently until 5:00 p.m. when he orally incriminated himself. The restrictions upon their activities lasted for about eight hours. During this time they were fed аnd not mistreated. Montes was given other Miranda warnings during the afternoon, and both consented to take polygraph examinations.
The type of “arrest” and the type of custodial detention here is unlike that considered in Davis v. Mississippi, supra, and Brown v. Illinois, supra. In those cases, the suspects arrested were private citizens enjoying complete freedom prior to their arrest, while here appellants were taken from a detention center in which their freedom of movement was already severely restricted. And, in those cases, the suspects arrested were subjected to the terror of a detention in a *398 foreboding place and of uncertain duration, while, in this case, appellants were subjected to an atmosphere in the jail with which they must have been well acquainted, and they knew that their status as inmates, with its resultant confinement, would continue in any event following their making of a statement. Under these circumstances, which included the advisement of the right to remain silent and to have counsel before questioning, we concludе that the police enjoyed no benefit or edge by reason of any assumed illegal arrest or detention. The trial court was correct in finding that the statements were not inadmissible on this ground.
Appellants next contend that their statements should have been suppressed because they were the fruit of an illegal search of the basement bedroom which they shared at the center. Following the interviews with the inmates, the police discovered an alarm clock in that room. This discovery alerted thе police to the inconsistency in Montes’ statement, and such inconsistency was exploited during interrogation and led to appellants’ confessions. As there was no objection or motion to suppress the statements on this ground, and there was no hearing which focused upon the legality of the search of the room, this issue is not presented to us for decision in this appeal.
Hardin
v.
State,
(1970)
While admitting that the advisement of rights given each appellant met the requirements of
Miranda v. Arizona, supra,
appellants contend that their stаtion house statements should have been excluded from evidence because the State failed to prove that their antecedent waivers of rights were voluntarily made. Timely objections to the statements on this ground w;ere made. In
Mathis
v.
U.S.,
(1968)
In
Nacoff
v.
State,
(1971)
“The question is whether, looking at all the circumstances, the confession was free and voluntary, and not induced by any violence, threats, promises, or other improper influence.”256 Ind. at 101 .
Evidence presented shows that all inmates arrived at the station house in the midmorning. They were fed a noon day meal. None was questioned without an advisement of rights. Appellants were well acquainted with the quality of confinement which they experienced at the jail. The delay in giving advisements was occasioned by having to deal with fifteen separate potential witnesses. This delay, standing alone, does not appear significant. The trial court would have been justified in finding that no improper influences were brought to bear upon appellants prior to their waivers. There is no intimation of any mistreatment by police. The State satisfied its burden of demonstrating that appellants voluntarily wаived their rights to remain silent and to consult with counsel.
Appellants objected at trial to the use by the State of their incriminating statements on the grounds that such statements were not given voluntarily. Appellants specifically argue that their wills were overborne by the improper influence of a polygraph examination and by the delay in presentment to a magistrate. Again, we refer to the test in Nacoff v. State, supra:
“The question is whether, looking at all the circumstances, the confession was free and voluntary, and not induced by аny violence, threats, promises, or other improper influence.”256 Ind. at 101 .
*400
*399
The issue of the voluntariness of the statements is to be decided upon a consideration of the totality of the circumstances
*400
surrounding each statement.
Blackburn
v.
Alabama,
(1960)
We agree with appellants that the use of the lie detector shown here is a factor which must be weighed negatively in the determination of voluntariness. The State did not present testimony describing the conduct of the polygraph examination or explaining how the conclusions of the examiner wеre used in the questioning process. Without this evidence, the possibility that the State tricked appellants into confessing, by attributing qualities to the test results which did not exist, has not been dispelled. Prior to submitting to the tests, appellants claimed innocence. A short time after the testing period, both confessed.
We likewise agree with appellants that the delay in presentment weighs against the voluntariness of these statements. Both were detained for a period of twenty-four hours before being presented. Both hаd been held for at least six hours at the police station before confessing. And, after confessing, and being arrested and booked for murder at 6:00 p.m., both were again interrogated at 7:00 p.m. The evidence established that there was, in the same building as the jail, a court having criminal jurisdiction, which was open until 8:00 p.m. Unnecessary delay in presenting a person to a court, satisfying only the needs of the police for further interrogation, is illegal.
Nacoff
v.
State, supra; Suter
v.
State,
(1949)
In this case, however, there are other circumstances agаinst which these two negative factors must be weighed. Most significant among them is the compliance with the requirements of the Miranda case. Prior to questioning, appellants were given an admittedly complete advisement of rights, and they did in fact execute a voluntary and knowing written, waiver of the right to remain silent and to have assistance *401 of counsel. Both freely chose to subject themselves to questioning. As to Montes, these advisements were given more than once during the four hours of interrogation in the afternoоn. Prior to the polygraph examinations, each appellant was asked to give his consent to such examination and in fact did do so.
Appellants knew that they were to be questioned as suspects about a probable homicide at the center. They were of mature age and were not likely to be frightened by being taken to jail and held along with their fellow inmates. Here there were no prolonged sessions of interrogation, over an extended period of days, found excessively coercive in
Davis
v.
North Carolina,
(1966)
In
Watts
v.
Indiana,
(1949)
“A confession by which life becomes fоrfeit must be the expression of free choice. A statement to be voluntary of course need not be volunteered. But if it is the product of sustained pressure by the police it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and thereforе the reverse of voluntary.” (Emphasis added.)338 U.S. at 53 .
Here, it is recognized that a confession is not per se involuntary because it is given upon questioning by police. Accord,
Schneckloth
v.
Bustamonte,
(1973)
Having viewed the totality of the circumstances surrounding the statements, we conclude that, in spite of the negative weight given the two factors discussed above, the State сarried its burden of demonstrating that the statements were not taken in violation of the guarantee of the Fifth Amendment against compulsory self-incrimination or of that due process of law which the Fourteenth Amendment guarantees.
At trial, appellant Montes objected to the admission of Farrar’s statements as hearsay and as denying him the right to confront the witnesses against him guaranteed by the Sixth Amendment to the United States Constitution and by Art. 1, § 13, of the Indiana Constitution. Appellant Farrar made the same objection to thе admission of Montes’ statements. Neither appellant did testify. The statements of each implicated the other. The objections were overruled.
In
Pointer
v.
Texas,
(1965)
Appellant Farrar points out that there was no jury instruction given to the effect that the statements of Montes should be considered only for the purpose of determining Montes’ guilt. Montes makes the same complaint abоut the inadequacy of jury instruction. Suffice it to say that the statements of both appellants coalesced into one during the joint interview mentioned, and therefore there was no need for the trier of fact to consider them separately. The requirement of such a jury instruction was not applicable in this case. It is quite likely that trial counsel considered such an instruction unnecessary, since they made no objection to the court’s instruction on this basis, nor did they tender any Bruton-type instruction.
The indictment charged that appellants “did then and there unlawfully, feloniously, purposely, and with premeditated malice kill and murder David L. Doty ... by then and there unlawfully, feloniously, purposely, and with premeditated malice beating at and against the head of the said David L. Doty with a certain blunt instrument, the exact nature and *404 description of which is unknown to the Grand Jurors, said blunt instrument being then and there held in the hands of the said John D. Farrar and Luis A. Montes. . . .” Appellant Montes claims that a fatal variance between the proof and the chargе was created when the trial court over objection admitted into evidence the iron bar and Montes’ statement referring to the iron bar. The evidence indicated that the iron bar found next to the body was the murder weapon and that it was wrapped in a towel. Montes argues that the iron bar admitted into evidence is so different from “a certain blunt instrument, the exact nature and description of which is unknown to the Grand Jurors” as to create a fatal variance, since there was no evidence thаt the grand jury did not know its exact nature and description. The iron bar wrapped in a towel admitted into evidence conformed substantially to the description in the indictment. If there was a variance here, we see no possibility that it misled appellant in preparing his defense. The evidence was not inadmissible on this ground.
Appellant Montes argues also that the evidence was insufficient to prove a material allegation in the indictment, namely, the allegation that the victim was killed with a blunt instrument, the exаct nature of which was unknown to the grand jury. Appellant relies upon the cases of
Gipe
v.
State,
(1905)
The convictions are affirmed.
Givan, C.J., Arterburn and Prentice, JJ., concur; Hunter, J., concurs in result.
Note. — Reported at