Whether a confession is admissible or not is a question for the Court to determine. Hence when the prosecution undertakes to prove a confession, and the defense objects upon the ground that the confession was involuntary, the Court must pass upon the objection before any testimony as to the confession is received. (1 Wharton Am. Grim Law, Sec. 698.) Whether the confession was voluntary, or made with that freedom which is necessary to make it admissible as evidence, is a question for the Court, and like all other questions touching the admission of evidence, must be decided before the testimony goes to the jury.
Both confessions—the first to Hill, the Constable, and the second to Hill, and Bourland the Sheriff—were made, as the ease clearly shows, under the influence of threats, and therefore inadmissible.
There was nothing in the confessions which led to the discovery of the stolen property, or any other, facts or circumstances by which their truth was established. Hence
Order denying a new trial reversed and a new trial granted.
Mr. Justice Rhodes expressed no opinion.