The principal question to be determined in this case is, whether the confessions of the prisoners, as shown by the record, were properly admitted in evidence. The law is well settled, that before a confession can be admitted in evidence to the jury, it should be shown, prima fade, to have been voluntarily made. ¿ Whether it was so made or not, it is for the judge to determine, before he admits it, upon consideration of the age, condition, situation, and character of the prisoner, and the circumstances under which it was made.—Brister et al. v. The State, 26 Ala. 107. The usual method of showing that the confession was voluntary, is by negative answers to the questions, “whether the prisoner had been told that it would be better for him to confess, or worse for him if he did not confess ; or whether language to that effect had been addressed to him.”—Wyatt v. The State, 25 Ala. 12, and authorities there cited; also, 1 Phil. Ev. 542.
In the case before us, no such preliminary evidence was introduced. As to the prisoner Patrick, a threat was made to prosecute him, if he did not tell all about it. His subsequent confession was made, as it appears, in continua*59tion of the conversation, (which was resumed,) in which the threat was made; and the threat may have induced the confession. As to the other prisoners, not only is there also absence of proof that their confessions severally were voluntary, but the record does not inform us that what the witness testifies to as having been said by him to them, which induced their confessions, -is all that he said ; as to them, he may have resorted also to the appliance of hope or fear. We are prohibited from indulging the presumption that proper evidence was introduced to show that the confessions were voluntary, by the recital in the bill of exceptions that ah the evidence of the witness on the subject of the confessions is set out therein.
As to the strictness of the rule, which excludes confessions, as being procured by hopes held out, or fears excited, see the following decisions of this court: Aiken v. The State, 35 Ala. 399; Bob v. The State, 32 Ala. 560; Clarissa v. The State, 11 Ala. 57; Wyatt v. The State, supra; Brister et al. v. The State, supra; Mose v. The State, 36 Ala. 211; Aaron v. The State, 37 Ala. 106; Franklin v. The State, 28 Ala. 9; Chambers v. The State, 26 Ala. 59; Frank v. The State, 27 Ala. 37; Spencer v. The State, 17 Ala. 192.
2. A confession is not inadmissible, as is contended, because elicited in answer to a question which assumes the prisoner’s guilt. The law seems to be well settled, that this, of itself, would not be sufficient to authorize the exclusion of the confession.—Carroll v. The State, 23 Ala. 28; 2 Leading Crim. Cases, 202, and authorities there cited.
3. There was no error in the refusal of the court to charge as requested, in respect of the title to the property alleged to have been stolen; nor in the charge as given upon that question.
4. The court properly refused to give the charge, that the prisoners could not be found guilty, if the evidence showed the offense for which they were indicted was committed prior to the 21st of September, 1865. The record shows the alleged offense was committed after the occupation of this State by the United States forces, and after the issue of the provisional governor’s proclamation, but prior to the ordinance of the State convention, by which slavery was *60declared to be abolished.—Smith v. The State, at the last term.
5. The position taken in the argument at the bar, that the act of the 15th of December, 1865, (Acts 1865-66, p. 116,) repealed the section of the Code under which the prisoners were sentenced, cannot be sustained.—See Stephen Miles v. The State, at the present term, in which this question is discussed, and decided adversely to the prisoners.
For the error in admitting the confessions of the prisoners in evidence, as shown by the record, the judgment is reversed, and the cause remanded ; and the prisoners will remain in custody until discharged by due course of law.