The opinion of the court was delivered by
Nichollls, C. J.Appellant was convicted of murder without capi-. tal punishment, sentenced to life imprisonment in the penitentiary, and from the sentence he has prosecuted this appeal.
The only question submitted to us for review is the action of the District Court in permitting a confession of the defendant to go to the jury, over the protest of the latter.
It was claimed by the defendant that the confession was not free and voluntary.
The testimony which served as the basis for the introduction of the confession is annexed to the bill as part thereof, and is as follows:
C. W. Smith, sworn, says:
“ I am the constable of Ward 6, and arrested the accused. I found him at Mr. Airy’s, about five or six miles from the scene of the homicide, about 10 or 11 o’clock at night. He made a statement to me in regard to the killing. It was a free and voluntary statement on his part. I offered him no inducement whatever for making the statement. I did not tell him that it would be better for him to make a statement. I did not tell him he would get out lighter if he made a statement. I made no threat or offered no violence against him to induce him to make a statement. I had him under arrest at the time, and he voluntarily made the statement to me without any inducements or threats of any kind.
“ He made me a statement at the time he was first arrested, and he made me a subsequent statement at the house where the homicide was committed. At neither time did I offer any inducement, or threaten him, or tell him, it would be better for him to make a statement. Both statements referred to were free and voluntary on his part.”
Cross-examined:
“Mr. Jim Bice, Jr., went with me to arrest him. I was armed with a shotgun and a pistol. Mr. Bice had a pistol. I think I found him about 10 or 11 o’clock at Mr. Airey’s. The first words I told him was to hold up his hands, which he did. I asked him ‘ Why did you do it?’ I tied him with a rope. ' The first words he said after I *1311told him to hold up his hands wei’e: ‘ Who in the hell told you about it?’ I asked him, ‘ what on earth he meant by killing Will?’ I think it was about the time we went up to him. When I got to Mr. Airey’s I got over in the cowpen, between where Joe’s horse was unhitched and the house. Before I got over in the cowpen I heard them talking coming down where Joe’s horse was, and recognized Joe’s voice and got over in the cowpen. I don’t know but what there was a lane leading to the house, and Joe was coming down beside the fence, and Mr. Airey was with him. When I heard Leon Airey tell Joe that he heard somebody, I then went up to the fence where they were as quick as I could, and' drew my gun on him, and told him to throw up his hands. He threw up one, and I told him to throw up the other, and he done that. .1 think I told him that if he didn’t throw up the other I would shoot him. I then got over the fence as quick as I could and tied him, and then searched him. I think he asked me the question: ‘ Who in the hell told you?’ before I had gotten to him. It was just after this that I asked him why he had killed his brother, and in reply to what he had said, and it was then that he began to make the statement to me about how and why he had done it. He substantially made the same statement to me a number of times after that. Leon Airey went back in the house, and his father, Victor Airey, came out to where we were and asked what was the matter, and Berry replied: ‘ I told you I had killed the damned scoundrel,’ or ‘ damn son of a biieh.’ I don’t recollect which epithet he used. (Defence objects and reserves a bill.) I remained with him at Mr. Airey’s about half an hour. He made no further statement differing from the first he told me at that time. 1 went back with him to his (Berry’s) house. I had him tied all the time. I suppose it was after 12 o’clock when I got back to his' house. He made pretty much the same statement to me several times. We would ask questions along, and he would answer, until he thought he had answered enough, and would then siy he would wait and see what Oarrie would say about it. Carrie was his wife. He went to bed after he got to my house. It was probably' 2 or 3 o’clock when he got to my house. Jim Bice was with me. I tied his hands behind him and tied his feet under the horse while he was riding. I loosed his hands from behind him and tied them down by his side after I got to my house. I came on to town with him next morning, and left my house probably at 8 or 9 o’clock. J. *1312J. Vealock came to town with me and him. I got there a little after 12. I don’t know that he made any further statements to me between my house and town. The next morning at my house, after Berry woke up, my brother Frank asked him how he felt, and if he realized what he had done the night before; and Berry replied that he couldn’t realize what he had done, and said he didn’t believe he had killed Willie, and then said: ‘I have talked too damned much now for my own good. I will wait and .see what Carrie says.’ When I arrested him I saw some indications that he was under the influence of liquor. He did not seem to be excited or seared when I was tying him. The moon was shining very bright when he was talking to me. I could see plainly who he was twenty steps off. I didn’t tell him that he had better tell about it, or that it would be better for him to tell about it. As soon as I got to him after throwing my gun on him he began to make a statement. The first statement made was in answer to my question as to why he had killed his brother.” Re-examined:
“Mr. Berry knew me well, and knew I was the constable of the ward. I had only one man with me. Berry did not seem at all frigthened and seemed like he didn’t care for anything. I suppose Mr. Berry is about thirty-five years old and passes for a white man.”
Recross-examined:
“ I always try to arrest everybody down there that I have a warrant for. I have never let one get away yet that I know of.”
Defendant’s counsel calls attention to the fact “ that during all the time he was making the confession he was securely tied with his hands bound behind or at his side.” He calls attention to the following statement by Smith at the close of his cross-examination. “As soon as I got to him, after throwing my gun on him, he began to make a statement. The first statement made was in answer to my question as to why he had killed his brother.”
In the brief filed for defendant his counsel says: The accused begins his statement in answer to'a question asked by a constable acting as deputy sheriff, while the deputy had his gun leveled at him and the statement was continued while accused was being tied and while under arrest. Smith’s testimony shows that the prisoner’s captors were plying him with questions which he answered reluc*1313tantly. Smith says: “ We would ask him questions along and he would answer until he thought he had answered euough.” It will be observed this deputy undertook to tell what the prisoner thought thereby indicating that his captors were pressing him for a fuller confession. It will also be noticed that Smith assumes in his first question that the accused did kill his brother, for he says: “ I asked him why he had killed his brother?”
We do not understand the witness Smith to say that the statement of the accused was made to him in response to a question, “why he had killed his brother?” propounded to him simultaneously with the leveling of the constable’s gun at him, and while it was so leveled upon him. Had this been the situation; it might well be said that the answer was made under duress, while únder the influence and fear of the gun directed against him. What the constable said was “ that he threw (leveled) his gun at Berry, calling twice upon him to throw up his hands; that after this had been so, he climbed over the fence,advanced upon and arrested the defendant.” The object of the leveling of the gun was evidently to ensure the constable’s safety while moving up to Berry, and not to call threateningly for an answer to a question asked. The constable says that Berry “began to make the statement as soon as he (the constable) got to him, after throwing the gun, and not while throwing the gun on him. Parties making dangerous arrests are not apt to initiate-proceedings by asking questions. A fair construction of the language of the witness is that the conversation between the parties occurred just as or just after the constable had reached defendant, and it is from that standpoint we must test matters. There is no claim that the tone of Smith’s voice in asking the question he did of the defendant was threatening, or indicated any hostile feeling toward him. Two persons (Bice and Airey) were present, besides Smith, and defendant was in position to have shown anything like coercion, had such existed, by the testimony of one or the other, or both. It is unquestionable that before what purports to be the confession of a person accused of crime is introduced in evidence it must be shown that it was free and voluntary; not made under the-influence of fear, inducements or promises. It has been held by this and other courts that the mere fact that the confession, was made while under arrest or imprisonment to the party or parties arresting him or holding him in legal eus*1314tody is not sufficient ground per se to take from the' confession thp character of its being free and voluntary. A confession made under such circumstances and shown affirmatively by testimony to have been made without intimidation, threats, menaces .or inducements on the part of the officer of trie law is admissible. State vs. Hash, 12 An. 895; State vs. Monie, 36 An. 513; State vs. Alphonse, 34 An. 18; State vs. Magee, 36 An. 309; State vs. Meekins. 41 An. 545; State vs. Hamilton, 42 An. 1205; State vs. Johnson, 47 An. 1230; State vs. Lewis, 39 An. 1111; State vs. Demareste, 41 An. 617; State vs. Chambers, 45 An. 37.
The fact that a confession was made to such persons and under such circumstances throws upon courts the duty of very closely scrutinizing the' conduct of those officials and making sure that the instrumentalities intended merely for the vindication of the law should not be converted into engines of oppression or wrong. We find nothing in this case to break the force of Smith’s declarations, under oath, that the statements made to him were free and voluntary,' brought about by neither fear nor inducements. The facts disclosed by the testimony that Berry when arrested was under the influence of liquor furnishes a probable reason for his having so indiscreetly and injudiciously acted so far as his own interests were concerned.
Neither the fact of defendant’s partial intoxication, nor that of his statements being made in response to question asked of him (State vs. Allen, 37 An. 687; State vs. Taswell, 30 An. 886; State vs. McGee, 36 An. 209), furnish in law legal grounds for excluding the confession, though they may affect its weight when before the jury. The following extracts taken from Wharton’s Oriminal Evidence (9th Ed.) bear directly on the issues raised in this case.
Section 649: “Confessions made to constables or other arresting parties, or to magistrates, can not be excluded unless it appears that there was a threat of harm or a premise of worldly advantage employed by an authoritative person.” R. vs. Baldry, 12 Am. & Eng. L. and Eq. 591; 5 Cox. C. C. 528; 2 Ben. C. C. 430; Com. vs. Sturtivant, 117 Mass. 122; Com. vs. Smith, 119 Mass. 305; Murphy vs. People, 63 N. Y. 590; Wolf vs. Com., 30 Grat. 833; Aaron vs. State, 37 Ala. 106; State vs. Carlisle, 57 Mo. 102; State vs. Bruce, 33 La. An. 186; State vs. Staley, 14 Minn. 105; State vs. McLaughlin, 44 Iowa, 83; State vs. Ingram, 16 Kas. 14.
*1315Section 661: “When a party is compelled by duress to make a self-disserving statement, this statement can not be put in evidence against him. Legal imprisonment, however, does not operate to exclude a confession made during its continuance when no threats or promises are used. ‘Thus, when a prisoner after his arrest, upon being interrogated, why he had killed his wife, replied: ‘ Because I loved her,’ and said further, ‘1 killed her because she loved another better than me,’ and also said to a fellow-prisoner in jail, that he had killed her, but if it was to do again, he would not do it; it was held that there was nothing in the circumstances under which the eonfession was made to render them inadmissible. State vs. Freeman, 1 Speers 57. That the prisoner’s feet were tied does not exclude. State vs. Patterson, 73 Mo. 695.”
Section 662:
“ A' confession is admissible when voluntarily made to the public officer, even though the prisoner be in custody of such officer, unless the eonfession be in some sense elicited by threats or promises.” Numerous authorities cited.
Section 663:
“ A prisoner’s confession will not be rejected as evidence merely because it was made in answer to a question which assumed his guilt. Thus, where the officer who committed the prisoner on a charge of murder, asked ‘ whether if it was to do over again, he would do it,’ and the reply was, ‘Yes sir-ree, Bob,’ it was held that both the question and answer were admissible in evidence, as well as the fact that in making the reply the prisoner’s ‘ manner was short.’ ” Carroll vs. State, 23 Ala. 29, and numerous other authorities.
Section 676:
“The mere fact of intoxication, unless amounting to mania, does not exclude a confession made during its continuance, even though the intoxication was induced by a police officer who sought in this way to lead the prisoner to confess. Confession, however, produced by intoxication is a fact for the jury tending to discredit a confession.” (Authorities cited.)
We find no basis for holding that the proceedings of the case, the verdict of the jury and the sentence of the court were not in accordance with law and evidence.
The judgment of the District Court must be and it is hereby affirmed.