In this case the State relied for a conviction very largely on the alleged confession of the defendants.
There is evidence in the record that the alleged confession was freely and voluntarily made in the presence of an alleged officer in a cell in the county jail and within hearing of two other officers planted in an adjoining cell to hear what was said.
The alleged confession of Rowe was obtained, if at all, under such condition as to make it of no value in a court of justice. The record convinces us that one of the police officers beat Rowe with a piece of garden hose in an effort to extort a confession from him and that although they failed at that moment to get the desired statement, they followed this up by planting officers in and about his cell to question and annoy him during the same night and immediately after the beating with the hose and while the accused was still feeling the effects of the unlawful treatment which had been imposed upon him and that this was done to procure some statement which could be used against the accused without any warning having been given to the accused of their legal rights in the premises.
Alleged confessions procured by such means should not be received by courts as the basis for convictions.
In Nickels v. State, 90 Fla. 659, 106 So. R. 479, this Court says: *Page 100
*Page 101The law is well settled that when an extra judicial confession is made in conformity with the rule above stated it is admissible, though it may not be the spontaneous utterance of the accused. The fact that the confession was obtained by questioning the prisoner will not alone exclude it, even though some of the questions be leading and assume guilt, if the confession in fact emanates from the free will of the accused and is without inducement of hope, fear or other illegal influence. Davis v. State, decided at this term. See also Ziang Sung Wan v. United States, 266 U.S. 1, — Sup. Ct. R. — decided October 13, 1924; Underhill's Crim. Ev. (3rd Ed.) 352; Curry v. State, 203 Ala. 239, 82 So. R. 489; State v. Penny, 113 Iowa 691, 84 N.W. R. 509; Young v. State, 90 Md. 579, 45 Atl. R. 531; State v. Priest, 117 Me. 223, 103 Atl. R. 359; State v. Barrington, 198 Mo. 23, 95 So. W. R. 235. A mild degree of persistency in such questioning is sometimes sanctioned. People v. Simsen, 153 Cal. 387, 95 Pac. R. 863; State v. Banneik, (N.J.) 64 Atl. Rep. 994. When considering such a confession, however, trial courts should exercise great diligence to ascertain whether such questioning was so repeated and persistent and applied under such attending circumstances of intimidation or of inequality between the interrogator and the accused as to impair the freedom of will of the latter and thereby amount to compulsion. The effect as well as the form of the compulsion should be carefully weighed and considered, for a confession obtained by compulsion must be excluded, whatever may have been the character of the compulsion. Ziang Sung Wan v. United States, 266 U.S. 1, 69 Law Ed. 131, decided October 13, 1924.
See also Bates v. State, 78 Fla. 672, 84 So. R. 373.
Because of the great probability that the confessions, if made at all, were not freely and voluntarily made and because of it appearing that the verdict of the jury was probably largely influenced by the admission in evidence of the alleged confessions the judgment should be reversed and it is so ordered.
Reversed.
TERRELL, C. J., AND WHITFIELD, STRUM AND BROWN, J. J., concur.
ELLIS, J., dissents.