1. The judgment of conviction in this case must be reversed, because the record fails to show that the jury were sworn. — Code of 1876, § 4765; Hicks v. The State, in manuscript.
2. The confession of the prisoner, given in evidence by Glenn, was not what the law calls voluntary, and therefore should not have been received. The law can not measure the degree of influence exerted upon the prisoner’s mind, by an inducement offered, or threat made. The confession, to be receivable in evidence, must be purely voluntary. — Mose v. The State, 36 Ala. 211.
3 4. The court did not err in allowing a nolle prosequi of *387tbe first count, (Lou Wooster v. The State, 55 Ala. 217,) nor in fixing the measure of punishment. The discretion of the jury, provided for in section 4361 of the Code of 1876, relates to the matter of super-adding a money fine.
Reversed and remanded. Let the prisoner remain in custody until discharged by due course of law.