concurring.
I think this case ought to be reversed, but disagree with the reasons stated in the court’s opinion.
The reasons assigned by the court for reversal are that the confession of the defendant should not have been admitted in evidence; and that after being admitted it should not have been believed.
The question of its admissibility was raised in the trial court and thoroughly inquired into. The court determined *379that it was a voluntary confession, on what seems to me to be solid ground.
The defendant here was a mature woman, intelligent, experienced, and of sufficient education to serve as secretary of the church conference she and the decedent had attended on the night he died, and to do other secretarial work. She was not, and did not claim to be, the victim of third degree methods. She went voluntarily from her home to the place of confession with the sheriff and the Commonwealth’s attorney, both of whom she had known for years. She did not claim that they intimidated or terrified her. She claimed she was induced to make the confession by the statement of the Commonwealth’s attorney that if she would say she killed deceased because he attempted to rape her, then she could plead not guilty because she would have done it in self-defense, and if she did not, people would come from Chatham and file a first degree murder charge against her.
The sheriff testified emphatically that no such inducement was offered her; that not a rough word was said to her and no request was made of her beyond the request that she tell the truth.
After she had told them in the automobile that she had killed the deceased, they went back to the house and she there re-enacted the scene. At the conclusion of that demonstration, her mother was called in, and at the deféndant’s request the Commonwealth’s attorney repeated what the defendant had said, and the defendant then told her mother that was the truth. Both the defendant and her mother admitted this occurrence, the only difference being that they claimed that during the Commonwealth’s attorney’s recital the defendant only said “Uh huh,” instead of “That is the truth,” as the sheriff testified. That was about ten o’clock at night. Next morning about eleven o’clock the sheriff and the Commonwealth’s attorney presented to the defendant in her office the written confession quoted in the court’s opinion. She was asked to read it and told if she wanted to strike out anything, or add anything, it would *380be done, and if she did not want to sign it she did not have to do so. She read it over two or three times and asked, “How long will fingerprints stay on a gun after they are there?” She admitted asking that question. The Commonwealth’s attorney replied he did not know, and thereupon the defendant signed the statement. She also asked, “How much time do you think I will get—ten years?” The Commonwealth’s attorney told her he had no idea, and she responded that she did not care about it for herself, but did for her people. She claimed she was still under the spell of the Commonwealth’s attorney’s promise when she did those things. She and the sheriff both testified at length before the trial court on the question of the admissibility of the confession, and when her statement was admitted they both likewise testified at length and were vigorously cross-examined before the jury as to the details of this confession. The court was satisfied that it was a voluntary confession, and in my opinion he was justified in that conclusion.
It is immaterial that the sheriff asked the defendant to go with him in his car to the place of the confession. That was done, he testified, in order that their talk would not be interfered with by her mother. The fact that the Commonwealth’s attorney afterwards joined the sheriff and the defendant in the car does not affect the voluntary character of the confession, even though the defendant was not told he would do so. This Court has expressly held that, “The fact that artifice was employed to obtain the presence of the accused at the place at which he made the confession is immaterial.” Omohundro v. Commonwealth, 138 Va. 854, 121 S. E. 908.
We also said in the case last cited: “It is true that, in order to render it admissible in evidence, the burden rested upon the Commonwealth to show that the confession in question was voluntary; but the decision of that question of fact was for the trial judge, upon consideration of all of the evidence on the subject. 1 Bish. New Cr. Proc. (4th ed.) section 989. ‘ * * as often said, the real question in every case is whether or not the confessing mind was influenced *381in a way to create doubt of the truth of the confession.’ (Idem, section 1224.) To the same effect, see Smith v. Commonwealth, 10 Gratt. (51 Va.) 734. ‘Over this sort of question, the court has a wide discretion’ (1 Bish. New Cr. Proc. section 1222); and its decision by the trial judge ‘is not ordinarily to be disturbed on review.’ (Idem, section 1220).” (Omohundro v. Commonwealth, 138 Va. 854, 863, 121 S. E. 908, 910).
See also, Johnson v. Commonwealth, 184 Va. 466, 35 S. E. (2d) 770, and cases there cited.
In rejecting the confession,the majority opinion has accepted as true the testimony of the defendant, who is the person most vitally interested in this case, and has rejected the testimony of the sheriff, who was known to the trial court and to the jury and who was by them believed.
The court’s opinion goes further and holds that the confession, after being admitted, was not true and should not have been believed. I think that conclusion disregards the clear boundary line between the functions of the court and the jury. They, not we, are the triers of the facts. If there is credible evidence to support their finding, we ought not to upset it because our interpretation of that evidence differs from theirs.
There is nothing incredible about the defendant’s solemn written statement that she shot this man. That is what she told the sheriff and the Commonwealth’s attorney twice, repeated it in the presence of her mother, and put it in writing next day. It should not be lightly accepted that a woman of the maturity and intelligence of this defendant, with no more pressure than she claimed, would falsely assert that she killed a man.
The points relied on in the court’s opinion to demonstrate the falsity of the defendant’s confession are points that the jury had before them and rejected. The jury saw the witnesses and heard them testify. They saw and heard the defendant as she tried to take back her confession that she shot the deceased. Her explanations are weak and unconvincing, even on the printed page. The jury also heard and *382saw the sheriff when he contradicted every material claim she made about it. The jury heard the evidence about the weight and height and strength of the parties. They weighed the probability of her having fired the shot under the circumstances discussed in the court’s opinion. They saw the pistol that has been exhibited to us. It is not incredible that they knew as much about its structure and its use as we do. The size of the deceased’s thumb and the probabilities of how it got into the trigger guard were known to them certainly as definitely as to us. It was doubtless with some confidence that they felt warranted in rejecting the idea that he selected that awkward digit to fire the pistol instead of the one naturally and universally used for that purpose. In order to overcome and to demonstrate the untruthfulness of defendant’s explanation of the position of the body of deceased on the floor, the court indulges the supposition that the deceased shot himself when “he was probably seated on the floor.”
After the trial court and the jury had heard all the testimony about how the confession was obtained, the jury were told by instruction F, on motion of the Commonwealth, that they should consider the whole of defendant’s admissions, as well those in her favor as those against her, unless the circumstances attending them discredited them, in whole or in part, and that they might believe or disbelieve her statements, in whole or in part, as reason decided.
The sheriff, who contradicted specifically the defendant’s claim of unfair advantage, had held his office for 21 years. If he and the Commonwealth’s attorney were the type of men who would set about to convict the defendant by unfair means and false testimony, the people of the county would have found it out before this and the jury would have known it. We should not, in my opinion, find them guilty of that conduct with nothing more than the testimony of this defendant to base it on.
Only the defendant knew how the shooting occurred. The other witness is dead. The defendant’s first statement about it was that, without rhyme or reason, the deceased *383suddenly choked her into insensibility and she did not know what happened after that. I do not think the Commonwealth’s attorney, especially in view of the admitted relations between these parties, is subject to criticism for not accepting her version as true. He would have been remiss in his duty if he had not tried to ascertain the truth. It was his duty, of course, to go about his search honestly and fairly and with proper regard for the defendant’s rights. The sheriff testified that he did so, and the court and the jury believed him.
I think his conduct of the trial, however, was fairly subject to criticism. There was a direct conflict between the sheriff and the defendant as to what happened. The Commonwealth’s attorney was present on all the occasions the sheriff testified about. He became a material witness to those transactions. When that situation developed, he should have retired from the case and another should have been appointed to prosecute. Instead, by his method of questioning, he was able to impress upon the jury that he vouched for all the sheriff said, and by the same means he contradicted the defendant in his cross-examination of her. This he accomplished without being sworn as a witness and without submitting himself to cross-examination. That procedure was unfair to the defendant.
Its unfairness was emphasized and added to by the ruling of the court during the argument. Defendant’s counsel began to comment on the failure of the Commonwealth’s attorney to testify and to argue that his failure created a presumption that his evidence would be against the Commonwealth’s contentions. On objection by the Commonwealth’s attorney, the court would not allow the argument and defendant excepted. I think that ruling of the court was prejudicial error, and for it the case should be reversed and remanded for a new trial.
I am authorized to state that Chief Justice Hudgins and Justice Spratley fully concur in the views expressed herein.