| Ark. | Jun 3, 1899
(after stating the facts.) • After much other testimony had been given, the court instructed the jury “that the confession made by the defendant to Col. B. A. Johnson, together with the fact that the meat was stolen, will justify you in finding the defendant guilty.” Defendant excepted.
The testimony of Col. B. A. Johnson as to the confessions of the defendant was not admissible. The proof shows that, they were made by the defendant in the hope that, if he would confess, he would be made a state’s witness against others, and that he would not be bound over or prosecuted “if he would testify against the Allen boys.” This was promised him by Col. B. A. Johnson before he went on the stand as a witness. Col. Johnson, at the time he induced the defendant to make the confessions, was not in official position of any kind, but he was the owner of the stolen meat, the party injured, and really the prosecutor in the case, and as such was a person “in. authority,,r within the meaning of the law.
In Warickshall’s Case, 1 Leach’s Cr. Cas. 299, Eyre, C. B., said: “A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.” “The material inquiry, therefore, is whether the confession has been obtained by the influence of hope or fear applied by a third person to the prisoner’s mind.” 1 Greenleaf, Ev. § 219. Lord Campbell stated the rule to be that “if there be any worldly advantage held out, or any harm threatened, the confession must be excluded.” Reg. v. Baldry, 16 Jur. 599, 12 Eng. Law & Eq. 590. If the threat or inducement is held out, actually or constructively, by a person in authority, it cannot be received, however slight the threat or inducement; and the prosecutor, magistrate or constable is such a person. 1 Greenleaf, Ev. § 222; Com. v. Sego, 125 Mass. 210" date_filed="1878-08-27" court="Mass." case_name="Commonwealth v. Sego">125 Mass. 210; Knapp’s Case, 10 Pick. 489; Charles v. State, 11 Ark. 408; Corley v. State, 50 Ark. 305" date_filed="1887-11-15" court="Ark." case_name="Corley v. State">50 Ark. 305; Reg. v. Moore, 16 Jur. 622; 12 Eng. Law & Eq. 583.
It is true that, the principle of law that the confession must be voluntary being strictly adhered to, the question whether it is voluntary must be decided primarily by the presiding judge.
The instruction given by the court was clearly erroneous. It invaded the province of the jury in assuming as a fact that the meat was stolen, and in telling them to give full credence to the testimony of Johnson, and to the confession of the defendant alleged to have been made to him, which we have shown was inadmissible. It is error for the court in charging a jury to assume facts to have been proved, when they are disputed, or to charge the jury upon the weight of evidence. This is elementary. The constitution forbids it. For the errors indicated, let the judgment be reversed, and the cause remanded for a new trial.