When not made freely and voluntarily a confession is presumed to be legally false, and can not be the underlying basis of a conviction. The failure to object to such evidence does not give it probative value where it is shown, without dispute, that it was not freely and voluntarily made. Without the alleged confession the verdict was unsupported by the evidence.
The Code declares that a "confession of guilt shall be received with great caution." Code, § 38-420. "To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury." § 38-411. The defendant in this case stated that he went into these places, so he said, "to keep them from beating me." The jury were authorized to reject this confession. However, the testimony quoted above comes from the State's witnesses. If objected to, it should have been excluded. Dixon v. State, 113 Ga. 1039 (39 S.E. 846); Smith v. State, 125 Ga. 252 (54 S.E. 190). In Wilson v. State, 19 Ga. App. 759, 767 (92 S.E. 309), it was said: "In 1 Greenleaf on Evidence (16th ed.), 354, § 219a, it is declared that `The foundation of all rules upon this subject rests upon an anxiety to exclude those that are not voluntary because such are probably untrue.'" Hence we have the rule that an involuntary confession is legally false. Merely to tell a defendant "to tell the truth" does not make what is said involuntary. As was said in 1 Bishop's Criminal Procedure, § 1227, "Since the danger that *Page 468 the confession will be false is the ground for excluding it an exhortation, re-enforced or not by a motive, to tell the truth, does not render inadmissible what is said in response, unless the meaning is that the real thing sought is a confession, the speaker assuming the truth to be guilt." Wilson v. State, supra. Applying this principle to the language of the witness for the State, it is apparent that the witness assumed that the defendant was guilty; for he further stated, "if we have to go to all the expense of hunting up evidence and working on the case." There was certainly such inducement as to make applicable the rule, and render the evidence as to a confession inadmissible. If under the undisputed evidence it was legally inadmissible, it was legally insufficient to support a verdict of guilt, although it was admitted without objection, because the law presumes it to be legally false. The verdict in this case is not supported without the alleged confession. This alleged confession, under the principles cited above, is presumed to be legally false, and a conviction can not be predicated thereon. The court erred in overruling the motion for new trial.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.