I concur in the reasoning of the court which results in a reversal of the judgment under review. However, I cannot subscribe to the statement in the opinion that "Our inquiry under the assignments of error results in a finding that there was evidence supporting the voluntariness of the confession, and in its admission in evidence, consequently there was no error."
As a part of its case, the state undertook to introduce in evidence, and the court admitted, a confession of the plaintiff in error. To that end, it called as a witness the sheriff of Salem county who testified on direct examination as follows:
"Q. He told you what? What did he tell you? A. He told me — he sent word — like he wanted to talk to me. I asked him what he wanted to talk to me about. He said, `I want to ask you — I want to ask a favor of you.' I said, `What kind of a favor?' He said, `Will you protect me from a gang?' I said `What gang?' He said, `If a colored man is accused, or does anything like this in the south, sometimes they lynch him.' And I said, `You want me to protect you from any gang that might lynch you?' He said, `Yes.' I said, `I will, if I can. That's my duty.' Then he — and I said, `Tell me what happened. If — you must have did something there or you wouldn't think the gang is going to get you.' Well, he said, `I am going to tell you.'
"Q. You said he made a specific request, sheriff, is that right? A. That is right.
"Q. What was that request? That he be protected from a gang.
"Q. Did he make any other request? A. No, well he said he would — he said, `If you will protect me I will tell you the story.'
"Q. What did you say to him then? Well, I said, `That is my duty to protect you.'"
At this point the trial court admitted the statement in evidence and it was read to the jury by the sheriff. Thereafter *Page 313 counsel of plaintiff in error cross-examined and the sheriff testified:
"Q. And he asked at that time if you would see that he was protected, didn't he? A. That is right.
"Q. If you would see that he was protected he would tell you the story. A. That is right."
The testimony of plaintiff in error was that the sheriff said "I will protect you if you give us the statement. * * * He said that was his duty," and again "He [the sheriff] said if I gave him the statement he would protect me." The state recalled the sheriff after this testimony and he then said that it was not true that the statement was obtained on his promise that he would save plaintiff in error from being lynched.
This court in State v. Foulds, 127 N.J.L. 336, has laid down the rule that it is an indispensable prerequisite to the admission in evidence of a confession that it be made voluntarily. The burden of proof as to the element of voluntariness is upon the state and that burden was not carried by it. The conflicting statements of the sheriff, in my opinion, neutralized one another and left the court with no evidence to show that the statement was voluntary.
The judgment under review should be reversed, for the reasons stated above as well as for those stated in the majority opinion.