On Rehearing.
PROVOSTY, J.The reason for granting a rehearing in this case was to afford op*995portunity for further' argument on the question of the admissibility in evidence of the confession of the accused; the contention being that the confession was in a sense forced from the accused by the duress of the protracted course of questioning to which he was subjected by the superintendent of police.
[3] The provision in our Constitution that “no person shall be compelled to give evidence against himself in a criminal case, or in any proceeding that may subject him to criminal prosecution” was not intended to bring any change in the law of evidence on the subject of admissibility of confessions. Now, as before, the admissibility of a confession depends upon whether it was voluntary; and the question of under what circumstances a confession is to be regarded as having been voluntary is precisely the same now as it has ever been. To contend the contrary is simply to lose sight of what is contained in all the law boohs upon the subject of evidence in criminal cases.
[4] In those boohs, and in our own jurisprudence, the point is firmly settled that the fact that the confession was made while under arrest and in answer to questions propounded by a police officer does not render it inadmissible, so long as it was voluntary, as voluntariness is understood in the law of evidence. 16 Corpus Juris, 719; 1 R. C. L. 566; 18 L. R. A. (N. S.) 801; Underhill, Crim. Ev. 174; State v. Mulholland, 16 La. Ann. 376; State v. Hogan, 117 La. 866, 42 South. 352; State v. Berry, 50 La. Ann. 1309, 24 South. 329; State v. Howard, 127 La. 435, 53 South. 677; State v. Rugero, 117 La. 1040, 42 South. 495. In State v. Canton, 131 La. 255, 59 South. 202, and State v. Besancon, 128 La. 85, 54 South. 480, the interrogation was by the district attorney, an officer of much greater authority than a policeman or chief of police. In fact, the very case so largely relied upon by the defense, Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568, has as one of its syllabi the following:
“The mere fact that a confession is made to a police officer while the accused is under arrest, in or out of prison, or is drawn out by his questions, does not necessarily render the confession involuntary.”
[5] Another point that may be considered to be settled is stated in 16 C. J. 723, as follows:
“Caution or Warning — Necessity for. — In the absence of a statute requiring caution or warning the fact that a voluntary confession was made without accused having been cautioned or warned that it might be used against him does not affect its admissibility.”
In support of this text decisions are cited from Alabama, Arkansas, Colorado, Louisiana, Mississippi, Nevada, New Xork, Oklahoma, Pennsylvania, Porto Rico, South Carolina, England, and none contra. For cases from other states, see 18 L. R. A. (N. S.) 791. See, also, 50 L. R. A. (N. S.) 1083.
[6] Therefore in the present case, as in every other in which a confession is sought to be offered in evidence, the sole question is simply whether the confession has been free and voluntary; and in every case that question has to be determined exclusively by taking into consideration the circumstances attending the making of the confession.
In that connection it may be well to mention that the Bram Case, supra, upon which so much reliance is placed by the defense, has been considered both by text-writers and courts to be highly exceptional — in fact, an unsafe guide. McKelvey on Ev. § 841; Beale’s Crim. Plead. & Prac. § 283, note; Thayer, Cases on Ev. p. 294, note; Greenleaf on Ev. (16th Ed.) note by Prof. Wigmore.
In the present ease to have warned the accused that whatever inculpatory statements he might^make would be used as evidence against him would have been like ear-*997rying coals to New Castle; for lie may tie said, from the record, to have been a professional criminal, and one, at that, not inexperienced in the criminal courts. The very persistence with which he avoided incriminating himself in the course of the prolonged examination shows that he stood in no need of such warning.
There was entire absence of harshness towards him or ill treatment of any kind. He was not sought to be intimidated by seclusion and isolation. The door was at all times open while the examination was going on, so that newspaper reporters, and all others who chose, might be present;, and the questioning was by the superintendent of police alone, save perhaps for a question or two that may have been injected by some bystander. His testimony on the witness stand to the effect that he did not remember having made a confession, from which he would have had the jury deduce that he had been so exhausted at the time of making the confession that what he had at that time done or said had left no impression on his mind, is at variance with the evidence patent on the fact of the confession not having been the work of a clouded or enfeebled intellect. The confession is a consecutive, detailed narrative which could have emanated only from a mind having a firm grasp of the subject it was dealing with. . And we know that it was accurate; and the newspaper reporter who was present and the stenographer say that it was dictated continuously, and, the stenographer says, “fluently.” No doubt, accused was under a great mental strain; but, as the superintendent of police well observes, this was but natural after his having already confessed to two capital offenses. Father. Helinski would have carried more weight as a witness had he not also seen innocence written large in the countenance of accused, a confirmed and hardened burglar and a murderer, and had he not continued to discern in accused for two or three days the same enervation as on the night of the confession. The superintendent of police and the stenographer say that the accused was in good physical and mental condition.
There was a reason for protracting the examination and for repeatedly bringing the accused to the office of the superintendent of police. New Orleans was just at that time being afflicted with a series of burglaries, disturbing every home with a sense of uheasiness, if not alarm, and accused was suspected to have been connected with these burglaries; so that the examination was not with reference alone to the murder to which he eventually confessed, but also with reference to all these burglaries; and his being brought to the office of the superintendent of police from time to time was for the purpose of identification with the perpetrator of these burglaries. And the event proved the wisdom of that course, since accused was identified with two of the burglaries so fully as to have been left no choice but to confess to them.
[7] All that the law of evidence requires in a case like the present is that the confession should not have been the result of compulsion, whether physical or moral; and that the confession was not such in this case the learned trial judge, than whom no more experienced magistrate in criminal cases sits in this state, or perhaps in the entire country, was satisfied, and we also, after most mature consideration, are satisfied.
In its facts this is not a case for the manifestation of that tenderness to criminals (now so extensively imputed to the courts as a reproach) by which the courts are some,times inveigled into bringing into use for mollifying, while not exactly modifying, the law, those resources of ratiocination which Justice Brewer in his dissenting opinion in the Bram Case, supra, calls the “refinement of analysis.”
The judgment heretofore handed down *999herein is therefore reinstated and made final.
' O'NIELL, J., dissents, adhering to the opinion which he has 'heretofore handed down. • DAWKINS, J., dissents.