The principal ground relied upon for a reversal by the defendant is that the confession of the defendant was not voluntarily made, áncl this is the most serious question in the case. The defendant himself testified that the officers who had him in custody stripped him naked and commenced questioning him. That they threw him across the box that he was sitting on and then whipped him. That they cursed him, blindfolded him, put a wire on his thumb and then shocked him with an electric battery for twenty minutes. That one of the officers then took a rubber hose about the size of a gun barrel and struck him across the head and knocked him over in the corner. That they then kicked him around, knocked him down and beat him severely and that it was under these circumstances he made the confession. His brother to some extent corroborated his testimony in this respect. It was shown on the part of the State that several officers had access to him and were investigating the crime with which he was charged. These officers were put under the rule and each one positively and explicitly denied that they cursed him, abused him, beat him or in any wise mistreated or threatened him. They say that they used no profane or abusive language in his presence and that they did not threaten or mistreat him in any way. That they held out no inducement whatever either of hope or fear to make him confess the crime with which he was charged. This proof was made by the State before the confession was introduced in evidence and alsp after the defendant had testified to the abuse and mistreatment of himself. The officers specifically denied the statements made by him and reiterated that they had neither by threats nor by promise of reward or benefit induced the defendant to make the confession.
The trial judge found that the testimony of the defendant was not true and admitted his confession in evidence, and his finding is conclusive on appeal unless we should find that the trial court abused its discretion and that the confession is fairly traceable to prohibited influences. Smith v. State, 74 Ark. 397. In regard to the admissibility of confessions by the defendant in the case of Young v. State, 50 Ark. 501, the court said:
“The well established rule is, ‘that confessions of guilt, to be admissible, must be free from the taint of official inducement proceeding either from the flattery of hope or the torture of fear.’ The object of this rule is not to conceal crime, but to protect the accused from the effects of a false confession induced by the hope of gaining, thereby, relief or some temporal advantage. A confession made in the absence of any threat of temporal injury or promise of a temporal reward or advantage, in respect to the charge against him in the absence of such influence as might swerve him from the truth—would be voluntary and admissible as evidence against the accused. Under such circumstances it would be unreasonable for him to make admissions calculated to bring upon himself the consequences of crime, unless they were true.”
The evidence shows that the defendant was arrested on Tuesday night following the day that Alice- Turner was killed. His brother was also arrested charged with complicity in the crime. The defendant was placed in jail and was not questioned by the officers the night he was arrested. The next morning they took him out of jail and carried him to the city hall, where they informed him of the evidence they had against him. They questioned him as to his whereabouts on the day of the killing and finally he made the confession testified to by Hobbs, one of the officers. He was not cautioned or warned by the officers that any statements he might make would be used in evidence against him. It would extend the opinion to an unreasonable length to set out in detail all the evidence in regard to the confession. It is sufficient to say that according to the testimony of the officers they held out no inducement to him. They did not threaten him in any way and did not hold out any hope of reward or benefit to him that might accrue if he should make a confession. But it is fairly inferrable from all the evidence which we have carefully read and considered that the confession was obtained by persistent questioning on the part of the officers. As we have already seen, the defendant was entitled to stand mute if he so chose and to have no confessions used against him save a voluntary statement and not one extorted by fear or induced by promises. Was he deprived of this right? A careful consideration of the evidence leads us to the conclusion that the trial court was warranted in finding that the officers held out no inducement to him. No deception was used to influence the defendant to make his statement. No hope of reward or benefit was held out to him. No threat of any kind was made against him. No inducement was held out to the defendant that would naturally convey to his mind that he would gain some advantage if he confessed. They did urge him to tell the truth, but in the same connection said, “It will be better for your conscience if you just come up and tell everything that happened, you will feel better.” This negatives the idea that they intended to convey to his mind that he wonld receive any temporal benefit by making a confession. Such a statement would not naturally convey to his mind that he would gain some advantage if he confessed. In the case of Austin v. State, 14 Ark. 555, the court quoted with approval the statement of Mr. Greenleaf to the effect that a confession is admissible, though it is elicited by questions whether put to a prisoner by an officer or by private persons and .that the form of the question is immaterial to the admissibility even though it assumes the prisoner’s guilt. In 12 Cyc., page 463, it is said that the fact that a voluntary confession is made without the accused having been cautioned or warned that it might he used against him does not render it incompetent unless a statute invalidates a confession made where the accused is not first cautioned. To the same effect is Underhill on Criminal Evidence, (2 ed.), section 130; Wharton’s Criminal Evidence (10 ed.), vol. 2, par. 676-c. In the application of these principles of law to the facts under which the confession in the instant case was made, we do not think the trial court erred in holding that the confession was voluntary. In so holding we do not wish to be understood as approving of all that was said and done by the officers with relation to the defendant. While the law does not require that the defendant should he cautioned as to his right to remain silent and of the fact that statements made by him will he used against him, it is always better that the officers give such warning in order to avoid suspicion of improper inducement.
Counsel for the defendant also urge that the judgment should be reversed because the jury was not withr drawn when the court heard the evidence that led to the confession to determine whether it was admissible in evidence. The approved practice is to withdraw the jury while such evidence is being heard before the court. The reason is this: that in the event the court does not admit the confession in evidence, the defendant may not be prejudiced by the hearing of the proceeding before the court. In the instant case the confession was admitted in evidence and no prejudice could result to the defendant.
In respect to the confessions made by the defendant the court instructed the jury as follows:
“A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed by some one. The confession of a defendant, if accompanied with proof that the crime was committed by some one, will warrant a conviction, if you believe it.
“A confession, in order to be admissible or to be considered, must be made voluntarily; that is, without anybody holding out any hope of reward or leniency, or fear of punishment for not doing it. If that is done, it is competent for the jury to consider it and give it such weight as they see fit. You have a right to consider all the circumstances surrounding the party at the time the confession is made, and give to it such weight as you think proper under all the circumstances.”
“If you are satisfied of this man’s guilt beyond a reasonable doubt, it is your duty to convict him. If you have a reasonable doubt of his guilt, it is your duty to acquit him. This you alone can determine.”
Counsel for the defendant contend that the court erred in giving this instruction in regard to the confession and cite as authority for their position the case of Hubbard v. State, 77 Ark. 126, but we can not agree with their contention in this respect. There the jury were told that they could convict the defendant if they were satisfied beyond a reasonable doubt by the confession alone, or in connection with the other testimony in the case that the defendant was guilty of the crime charged. The court said that the confession alone is insufficient to sustain a conviction and that there must be other proof of the commission of the offense. Kirby’s Digest, § 2385, is as follows:
“A confession of a defendant unless made in open court will not warrant a conviction unless accompanied with other proof that such offense was committed.”
In the case of Melton v. State, 43 Ark. 367, the court held that the confession of a prisoner accompanied with proof that the offense was actually committed by some one will warrant his conviction. That is to say, under our statute to warrant a conviction upon an extrajudicial confession of the accused, there must be independent evidence to establish that the crime has been actually perpetrated by some one. In the instant case there was independent testimony which showed that the deceased had been killed by some one and the circumstances independent of the confession strongly pointed to the defendant as the person guilty of the crime. This phase of the case was embodied in the instruction complained of, and the court did not err in giving it to the jury.
We have carefully examined the instructions given by the court. They were full and explicit, covering every phase of the case, and were fair to the defendant. The evidence was amply sufficient to sustain the verdict, and the judgment must be affirmed.