State v. Spanos
134 P. 6
Or.
1913
Check Treatment
Mr. Justice McNary

delivered the opinion of the court.

Thе state, at the entrance way of this case, challenges the sufficiency of the record on appeal presented *120by defendant. We shall for the purposes of this case assume thе completeness of the record and proceed to examine the questions introduced on their merits. The first attack is directed against the admission in evidence of a purported confession made by defendant. A short time after his arrest and while incarcerated ‍‌​‌​​​​‌​​​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‌​‍in the county jail of Jackson County, Oregon, the defendant made a confession of his participation in the crime charged against him, which counsel claim was not due to the voluntary impulse of defendant but resulted from а process of extraction which is characterized as “the third degree method.”

. 1. It is a fundamental rule of criminal law that a confession cannot be used against a defendant unless the prosecution can show its free and voluntary character, and that neither duress nor intimidation, hope nor inducement caused defendant to furnish such evidence against himself: State v. Wintzingerode, 9 Or. 153; State v. Moran, 15 Or. 262 (14 Pac. 419); State v. Rogoway, 45 Or. 601 (78 Pac. 987, 81 Pac. 234, 2 Ann. Cas. 431); State v. Roselair, 57 Or. 8 (109 Pac. 865); State v. Garrison, 59 Or. 440 (117 Pac. 657); State v. Humphrey, 63 Or. 540 (128 Pac. 824); People v. Borello, 161 Cal. 367 (119 Pac. 500, 37 L. R. A. (N. S.) 434); State v. Miller, 61 Wash. 125 (111 Pac. 1053, Ann. Cas. 1912B, 1053).

2. Whether the confession was vоluntary or otherwise is an inquiry addressed to the trial court, ‍‌​‌​​​​‌​​​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‌​‍and its determination will not be molested on an appeal unless error is plain and manifest: State v. Rogoway, 45 Or. 601 (78 Pac. 987, 81 Pac. 234, 2 Ann. Cas. 431); State v. Garrison, 59 Or. 440 (117 Pac. 657).

3. There is testimony, not necessary to particularize at length, given by defendant tending to show that the confession was extorted from him in obedience to а plan of conduct pursued by the district attorney, *121sheriff, a newspaper man, and the jailer, which produced an effect efficient to overcome the mental, poise of defendant and caused him to confess a crime he had not committed. The plan employed, so defendant asserts, was briefly this: Defendant was placed alone in a “Pauly” cell distant from the other prisonеrs, where the jailer daily and the newspaper man would frequently visit defendant and urge him to confess by stimulating the idea the ‍‌​‌​​​​‌​​​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‌​‍people were against him; that the jury were picked, and he would hang unless he сonfessed, and advised and importuned him to send for the district attorney, who would assure defendant of his freedom within a period ranging from one to five years. The testimony of defendant is wholly uncorroborаted by any character of evidence and is directly contradicted by all of the witnesses involvеd by the defendant and others in addition thereto.

The confession offered in evidence was reduсed to writing, signed by defendant, and contained a detailed statement of the methods employed by dеfendant and his consorts to encompass the death of their victim. We deem a recital of the gruesome facts profitless, and rest by saying they show a murderous act committed in a deliberate аnd foul manner.

The prosecution offered in evidence the testimony of the officers of the lаw connected with the case and a number of other responsible witnesses to the effect thаt defendant, while uninfluenced by any insidious surroundings, expressed a desire to make ‍‌​‌​​​​‌​​​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‌​‍a breast of the facts connected with the commission of the crime; that he was apprised before making the cоnfession that what he said would be used against him and that any statement made must be the offspring of his own freе will and accord.

After a painstaking study of the evidence adduced at the trial, we cannot say that the presiding judge, *122in admitting the confession, committed an error manifest and clear, and in consequence thereof we are ‍‌​‌​​​​‌​​​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‌​‍forbidden by the legal policy of the state from disturbing the determinatiоn of .the trial court.

4. An assignment of error is specified but not argued that the court committed error in рermitting testimony to be submitted to the jury concerning a shirt and other articles found near the placе where the homicide occurred. The introduction of this evidence was quite proper, for there was ample testimony offered from which the jury might logically infer that the several articles were the property of or were used by the defendant in the’ perpetration of the crime charged in the indictment. The force and value of the offering was a consideration residing exclusively with thе jury.

5. As a final contention, counsel for the defendant take the position the court erred in denying the request that the testimony to determine the admissibility of the confession be heard in the absence оf the jury. It is impossible to see how the defendant could have been prejudiced by the action of the court of which he complains. Doubtlessly, to facilitate the dispatch of business, the court permitted the testimony concerning the character of the confession to be given in the heаring of the jury. Inasmuch as the court decided the confession was admissible, no error was committed in permitting the jury to receive the evidence while the court was acting as a tribunal to estimate its competency.

Believing no error was committed, the judgment of conviction is affirmed. Affirmed.

Mr. Chief Justice McBride, Me. Justice Bean and Mr. Justice Eakin concur.