(Concurring Specially).
The assignments of error, challenging the confession made by Tommy Morris, relate to a writing signed by him, refer to oral statements concerning money stolen from the decedent and then hidden, and involve verbal •declarations about blood stains on a coat and shirt worn by the defendant.
As a preliminary to a discussion of the circumstances attending the making of the confession, it will be appropriate to notice the rule by which the competency of the confession must be measured. Notwithstanding the phraseology of Section 1537, L. O. L., the common-law rules governing the admissibility of confessions are still in force in this state; State v. Wintzingerode, 9 Or. 153, 162; State v. Moran, 15 Or. 262, 265 (14 Pac. 419); and therefore to be admissible a confession must be free and voluntary and not made under the influence of fear produced by threats nor induced by the expectation of any promised benefit; 12 Cyc. 461. A voluntary confession is admissible even though it is made while in the custody of an officer: State v. Blodgett, 50 Or. 329, 334 (92 Pac. 820); State v. Scott, 63 Or. 444, 449 (128 Pac. 441); State v. Humphrey, 63 Or. 540, 552 (128 Pac. 824); State v. McPherson, 70 Or. 371, 373 (141 Pac. *4501018); nor will a prisoner’s confession be excluded as evidence merely because it was obtained in answer to questions wbicb assumed his guilt: State v. Blodgett, 50 Or. 329, 334 (92 Pac. 820). If the confession is voluntary the prosecution is entitled to have it go to the jury, but if it is not voluntary it must not have any influence upon the verdict.
This quality of voluntariness, so necessary to a confession, presents itself at two stages of a trial: (1) To the judge; and (2) to the jury. The judge passes upon the admissibility and the jurors are the exclusive judges of the weight and credibility of the confession. The decision of the judge is only preliminary while that of the jury is ultimate. The preliminary question is addressed entirely to the judge for at that stage of the trial the sole query is: Is the confession admissible ? State v. Blodgett, 50 Or. 329, 332 (92 Pac. 820); State v. Spanos, 66 Or. 118, 120 (134 Pac. 6). A confession becomes admissible as evidence when the prosecution shows prima fade that it was voluntary and while the judge may, if he chooses, at that stage of the trial permit the defendant to offer affirmative evidence to controvert the testimony of the prosecution, nevertheless, the judge is not obliged to hear the witnesses for the defendant before admitting the confession. If the confession is admitted by the judge and if it comes to the jury with conflicting evidence as to whether it was voluntary, the jurors are not bound to assume that the confession was made voluntarily simply because the judge held that it was admissible. To hold that the decision of the judge is the end of the matter and that his ruling of itself binds the jurors to say, or at least assume, that the confession is in truth voluntary is to take from the jurors the right to decide a vital fact. The judge can say whether a confession *451shall be submitted to the jurors for their consideration but it is their exclusive province to say whether in the presence of conflicting evidence they will attach any weight to it, and the law prescribes that a confession must not be given any weight if it is not voluntary. The province of the judge is to determine, not whether the confession was in fact voluntary, but whether a sufficient prima fade showing is made to warrant a finding that it was voluntary. If the judge tries out the preliminary question of the admissibility of the confession by hearing all the evidence on both sides in the presence of the jurors and if he receives the confession and allows it to go to the jury then the triers of the facts have a right to consider all the evidence in determining how much weight and credibilty should be given to the confession; and so, too, if the preliminary question is decided in the absence of the jury, either party is entitled upon demand to have the jury hear the witnesses tell about the circumstances which relate to the voluntariness of the confession. There are authorities to the contrary, but they ignore the distinguishing differences between the functions of the judge and those of the jury. The views expressed here are not only governed by the latest decisions of this court but are also sustained by well considered precedents in other jurisdictions: State v. Doris, 51 Or. 136 (94 Pac. 44, 16 L. R. A. (N. S.) 660); State v. Fuller, 52 Or. 42, 47 and 48 (96 Pac. 456); 12 Cyc. 482; 1 R. C. L., pp. 582-585; State v. Wells, 35 Utah, 400 (100 Pac. 681, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631).
The trial court admitted the confession after hearing the witnesses for the state and also those for the defendant, and since the preliminary inquiry was addressed to the judge who saw and heard the witnesses, his decision should not be disturbed unless the record *452discloses clear and manifest error: State v. Wintzingerode, 9 Or. 153, 165; State v. Rogoway, 45 Or. 601 (78 Pac. 987, 81 Pac. 234, 2 Ann. Cas. 431); State v. Roselair, 57 Or. 8 (109 Pac. 865); State v. Blodgett, 50 Or. 329 (92 Pac. 820); State v. Humphrey, 63 Or. 540 (128 Pac. 824); State v. Spanos, 66 Or. 118 (134 Pac. 6).
The question to be answered upon this appeal is whether the court was justified in submitting the confession to the jury, and that question does not necessarily require us to determine whether the confession was in fact voluntary. It will not be practicable to give more than a brief outline of the circumstances surrounding the confession as recorded in seventy typewritten pages of the transcript of the evidence. Tommy Morris was arrested and delivered to the sheriff at his office about 9:30 or 10:00 a. m. on January 12, 1915. The sheriff immediately took the defendant “into his private office” in company with E. E. Binehart, a deputy sheriff, where in the language of the sheriff:
“I told him that the Frenchman, Martin Anchoberry had made a confession in which he implicated him in the murder of that woman, and I asked him if he wanted to see some of his folks or an attorney. If he wanted to he had better call for some of his folks or an attorney and he said he didn’t. I told him, ‘You understand if you make any statements they will be used against you, if you talk at this time.’ In fact, I urged him to talk to some of his folks before he made any statement and he didn’t wish to do it.”
The sheriff is corroborated by the deputy who testified that the former said to the defendant: “Do you want to see your folks or do you want an attorney?”. Morris answered: “No I don’t want to see anybody”; and then the sheriff warned the defendant “that any*453thing he might say, if he was implicated in the murder, would be used against him and he didn’t need to make any statement unless he wanted to.” The sheriff testified that he felt friendly towards the defendant because he had known Morris since the time the latter was a small boy and that he did not at first believe that the defendant was guilty. Morris was not questioned any further until after the arrival of the prosecuting attorney. When the prosecuting attorney arrived at the sheriff’s office he warned the defendant thus:
“I told the defendant, Tommy Morris, that the Frenchman, Martin Anchoberry, had made a confession and he had implicated him in the killing of that woman. That we wanted to question him concerning the facts; that he need not answer any questions which were put to him unless he wanted to, but that if he did answer questions which were put to him or made any statements which incriminated himself they would be used against him.”
The sheriff and his deputy both say that Morris was warned in the manner testified to by the prosecuting attorney. The defendant was then questioned and the questioning continued off and on until about noon.
About 12:30 p. m. the sheriff and the prosecuting attorney went to lunch leaving Einehart with Morris in the sheriff’s office for the reason that the latter said that he did not want any dinner. During the absence of the sheriff and prosecuting attorney the defendant made an oral confession to Einehart. Upon their return the sheriff and prosecuting attorney were informed of what had transpired; but, before proceeding further the prosecuting attorney says that: “I again told him that any statement that he might make would be used against him.” Corroboration is found in the testimony of Einehart who swore that the prosecuting *454attorney ‘ ‘ told Mm any statement lie might make would he used against him and Mr. Snider (the sheriff) told him the same thing”; and the sheriff says that: “I think afterward, when I came back from dinner we again warned him about maldng statements.” After warmng the deféndant they commenced to reduce the confession to writing and at the end of about two hours the writing was finished and signed by the defendant. At some time during the afternoon the defendant accounted for the blood spots on his shirt and coat by explaining that during the struggle Bertha Bronson bit Anchoberry’s finger causing it to bleed; and he also revealed the place where he had hidden his share of the money that had been stolen from Bertha Bronson.
It is true that the defendant testified, on direct examination, that when alone with Rinehart the latter “told me to tell the truth, it would be better for me and he would do all he could for me”; and Morris also claimed that when first brought to the sheriff the latter “said he knew I was into it for the Frenchman said I was and it would be better for me to own up to it. ’ ’ It is also true, however, that the cross-examination lessened the force of the direct testimony. The defendant argues that this positive testimony of the defendant together with' certain answers made by the sheriff and deputy sheriff render the confession inadmissible. A considerable portion of the cross-examination of the sheriff is here quoted:
“Well, you didn’t say to Tommy, a boy you have known for years, and whom you say you didn’t at that time believe to be guilty, ‘Now Tommy, it will be better for you to tell all you know about this matter, if you know anything about it?’
“A. I may have said it, I don’t know. I would not be positive that I did, but it don’t seem to me, * *
“Q. Well, did you say anything similar to that?
*455“A. I think afterward, when I came back from dinner we again warned him about making statements.
“Q. Let’s go back to my question, Mr. Snider; whether you made any statements of the kind I have just asked you about.
“A. I can’t be sure whether I did or not, I may have.
“Q. Did you say to him anything to the effect that it would be better for him to tell you if he knew anything about what happened?
“A. No, I don’t think I told him it would be better for him because I realized that it would not and warned him to that effect.
“Q. Did you say to him at that time, ‘Tommy, you ought to tell all you know about this matter and if you do tell I will do anything I can to assist you?’
“A. I don’t know. Afterwards I did.
“Q. When?
“A. After the confession was written down I told him I would do everything I possibly could do for him.”
Continuing the sheriff said: “I simply told him, on account of his mother, I would do anything I could” and the witness explained that this statement was made to the defendant in the evening after the confession had been made and after Morris “was put in jail and locked up. ’ ’ A portion of the cross-examination of the deputy reads thus:
“Q. Mr. Rinehart, during the time you and Tommy were there alone didn’t you urge upon him to tell you privately, all about what happened up there, — didn’t you ask him to tell it to you individually while the rest were gone?
“A. I did say this, ‘You had just as well tell me.’
“Q. Didn’t you say this: ‘Now, Tommy you just as well tell all about it and if you will tell it to me here, I will do all I can?’
“A. No, sir.”
Again quoting from the testimony of Rinehart:
*456“Q. If you discussed that subject from the standpoint of telling the truth at all, in all probability you would say something to him to that effect, if not in those words ?
“A. I wouldn’t say whether I said that. I wouldn’t say I did and I wouldn’t say I didn’t.”
The sheriff testified that at no time “during the course of the examination” did any person make any threat against the defendant or give any promise to him; that “we simply questioned him as to what he did know” and' did not “at any time even request him or urge him to tell what he knew.” Binehart testified that he did not plead with the defendant at the noon hour; that he did not “make any promises of any sort to the defendant”; and that: “I said ‘the fact of the matter is you were up there the night of the murder, ’ and he nodded his head and said yes.” Moreover, Binehart denied saying to the defendant, “It will be better for you to tell the truth, and I will do all I can for you” or that he even used language to that effect.
Standing alone, the testimony of the defendant charging- that he was induced to confess by promises does not as a matter of law render the confession inadmissible: 1 R. C. L., p. 584; State v. Ruck, 194 Mo. 416 (92 S. W. 706, 5 Ann. Cas. 976). The sheriff admits that he did make some promises to the defendant but they were made in the evening after the written confession and subsequent to the statements about the money and blood stains; and, therefore, these admitted promises did not influence the confession. If the confession is inadmissible as evidence it must be on account of previous inducements. . In substance the sheriff said that while he could not be sure yet he “may have” stated to Tommy that it would be better to tell what he knew, and the deputy sheriff’s statement was that *457he said “you had just as well tell me” and that he “might have” told Tommy “it was better for him to tell the truth.” This is far from being an admission that they did in fact say to the defendant that it would be better to tell what he knew. It is true that the answers of the officers furnished material which the defendant could use in arguing to the jury that the confession was not voluntary; and yet, on the other hand, the State could argue that what the officers said “may have” happened, in fact did not happen, for the reason that the sheriff, who entertained a friendly feeling for the defendant and at first did not believe him to be guilty, warned Morris and soon afterwards the prosecuting attorney gave the defendant a similar warning. Can it be said that the court committed clear and manifest error when the defendant was twice warned and when according to the testimony of the sheriff, his deputy and the prosecuting attorney, they did not urge or plead with the defendant, nor trick him, nor make threats nor offer promises? Reasonable minds might draw different conclusions from the conflicting evidence in the record but it certainly cannot be said that all reasonble minds would agree that the officers did in truth tell the defendant that it would be better for him to tell what he knew; and the very fact that reasonable minds might draw different conclusions as to the voluntariness of the confession is a forcible argument in behalf of the correctness of the ruling made by the trial court.
It must be remembered, too, that the oral confession made to Rinehart at the noon hour was not offered in evidence, and it must be borne in mind also that the answers of the sheriff and his deputy upon which the defendant relies refer to what “may have” been said in the morning or during the noon hour. Even though it *458be conceded that the sheriff and his deputy did actually tell the defendant that it would be better for him to tell what he knew about the murder, or if it be assumed that the oral confession to Binehart was not voluntary, can it be said that the admission of the confession was clear and manifest error? The inducements, if offered at all, were held out in the morning by the sheriff and at noon by the deputy. Nothing said to the deputy at the noon hour forms any part of the confession offered by the State. The confession received in evidence was made in the afternoon and embraces^ the writing together with the statements about the money and the blood stains. Before beginning to write both the sheriff and the prosecuting attorney for the second time warned the defendant and this second warning occurred after any inducements that “may have” been offered in the morning. Assuming that the sheriff and the deputy made promises or held out inducements to the defendant in the morning and further assuming that this influence must be presumed to continue to operate unless the contrary is shown by clear evidence, we nevertheless have a situation where in the afternoon both the sheriff and the prosecuting attorney warned the defendant of the consequences of the confession and after such warning the defendant confessed. In State v. Wintzingerode, 9 Or. 153, 164, the court approved the rule announced in State v. Guild, 10 N. J. Law, 163 (18 Am. Dec. 404), where it was held that although an original confession may have been improperly obtained, yet a subsequent confession may be admitted if the court believes that from proper warning of the consequences of a confession, or from other circumstances, that the delusive hopes or fears which promoted the original confession, were entirely dispelled; and therefore if it is assumed that the confes*459sion made at the noon hour to Rinehart was induced by-promises, nevertheless, we should not reverse the ruling of the trial court but we should be governed by the reason given by this court in State v. Wintzingerode, when speaking of a similar situation:
“The circuit court had the undoubted right to try the question whether the original influence had ceased when the subsequent confessions were made, and if the record before us disclosed any fact or circumstance to justify the belief that they had in fact ceased, when such subsequent confessions were made, we should not disturb its determination.”
Necessarily considerable latitude must be allowed the Circuit Court in deciding whether a confession is admissible and yet it must be conceded that the trial judge should exercise his discretion with great care so that proper enforcement of the law may not be impeded on the one hand, and that no injustice be done the defendant on the other: 1 R. C. L., p. 583.
While different minds might draw different conclusions from the conflicting evidence, yet, there was enough evidence, if believed, to enable a jury to find that the confession was voluntary, and consequently the trial court did not err in submitting the confession to the ultimate triers of the facts. Believing that the trial was free from prejudicial error, I concur in the opinion and conclusion of Mr. Justice Bean.