I concur in the prevailing opinion that, when a district attorney intends to convict a defendant by proving that he voluntarily confessed that he committed the crime *Page 746 charged, the district attorney should say so in his opening statement to the jury. The exact language of article 333 of the Code of Criminal Procedure, in that respect, is that the district attorney, in his opening statement to the jury, shall explain the nature of the charge and the evidence by which he expects to establish the same. That does not mean that the district attorney is required to state in detail the testimony which each and every witness for the state will give. It means that the district attorney shall outline the facts, or the nature of the facts, which he expects to prove, and on proof of which he expects the jury to conclude beyond a reasonable doubt that the defendant committed the crime charged.
But that ground for annulling the verdict and sentence is perhaps more technical than substantial, especially in this case, because the defendant knew, from the ordeal which he had been subjected to, that unless the police officers would swear that he had made a voluntary confession, the state would have no other evidence whatever to connect him with the crime which had been committed.
My opinion is that the verdict and sentence should be set aside for want of sufficient proof of a free and voluntary confession on the part of the defendant. I do not agree with the statement in the prevailing opinion that we have to decide, in this case, that either the defendant, on the one side, or the police officers, on the other side, committed perjury. It is not a lack of respect for the police officers who had the defendant under arrest, to say that their testimony is not sufficient. My objection is to the method of convicting a person on the testimony of *Page 747 the arresting officers alone that he voluntarily confessed to them that he committed the crime, when he himself denies that he made a voluntary confession, and when he has been deprived of the right to have any witness to corroborate his denial. A judge or jury should never be in situation of having to decide, by judging of the veracity of a person accused of crime, against the veracity of the officers who had him under arrest, whether he voluntarily confessed to the officers that he committed the crime. The effect of that method of procedure would be to abolish trials in open court, except for the useless ceremony and solemnity of the trial in court; and it would abolish due process of law. What protection has a person on trial, if his conviction or acquittal is to depend upon whether the state can prove by the testimony of the officers who had him under arrest that he made a voluntary confession to them, at a time when and place where he had no right or opportunity to have any witness to corroborate his denial that he made the voluntary confession — except the conscience of the officers who had him under arrest?
It appears to me that the testimony of the assistant district attorney, Mr. Culligan, tends to corroborate the testimony of the defendant, to the extent that what he told the police officers was not told freely or voluntarily, but only after long hours of importunate questioning and persuasion. And, as to the testimony of the police officers who had the defendant under arrest, I say with due respect to them that, if we have to be guided entirely by their testimony, because of their good reputation and the improbability that they would use any undue influence *Page 748 or persuasion to obtain a confession from a person under arrest, and if we have to disregard the testimony of the defendant, because there was no one to corroborate it, and because of his unfavorable reputation, then a person under arrest — and especially one having an unfavorable reputation — has nothing to depend upon for his constitutional guaranty that a confession shall not be used against him unless freely and voluntarily made, except the conscience of the officers having him under arrest. I concede that we must proceed upon the presumption that police officers are, like other officers of the law, conscientious men, who would not go too far in their efforts to determine whether a person under suspicion perpetrated a crime that is known to have been committed. But the writers of the Constitution of Louisiana considered it possible that officers having a person under arrest, under suspicion that he committed a crime, might subject him to treatment designed by effect upon body or mind to compel a confession of the crime; and hence they inserted in the Constitution, in section 11 of article 1, the guaranty that no person under arrest should be subjected to any treatment designed by effect upon body or mind to compel a confession of crime.
I concede that it is quite likely that the defendant exaggerated in his description of the cruelties that he was subjected to, in his desperate and hopeless struggle to have his testimony prevail over that of the police officers. But we should make allowance for the fact that it was not possible for the defendant to have a witness to corroborate his denial that he made a free and voluntary confession. And we must bear in mind that it *Page 749 is not necessary that a confession should be extorted by physical punishment, to make it an involuntary confession. The fact that the defendant did not confess during the long hours when he was confined in an outlying police precinct station, instead of being in the parish prison, where he belonged, furnishes strong circumstantial evidence that he did not make a free or voluntary confession.
Besides, there is the overwhelming presumption that a man whom the police have under arrest, under suspicion of having committed a crime, is not going to take the arresting officers into his confidence, and freely and voluntarily confess to them that he committed the crime — especially when the officers have no evidence on which to convict him. And what I say now is particularly applicable to a prisoner of the character and experience that is described in the prevailing opinion rendered in this case. A man of that character — in fact, any man accused of a crime of which there is no evidence against him — who would freely and voluntarily confess to the arresting officers that he committed the crime, would be ready to go into court and plead guilty. He would not be apt to deny to everybody but the arresting officers that he committed the crime.
Aside from my objection to this method of convicting men accused of crime, my opinion is — with due respect for the police officers who testified in the case — that the defendant's denial that he made a free and voluntary confession of the crime is corroborated by the circumstances of the case, and by the strongest presumption known to the law, particularly the first law of nature. *Page 750 And, above all other considerations, the burden of proof is on the state to prove that a confession was made freely and voluntarily, before it can be introduced in evidence.