I concur in the judgment and in all that is said by the presiding justice concerning the effect of the evidence and the justification of the verdict of conviction under the proofs. But I do not think it is necessary to invoke article VI, section 4 1/2, of the constitution, to uphold the court's ruling in admitting in evidence the extrajudicial statement of the defendant when in the office of the district attorney. The application of said section of the constitution in a case presupposes either error in the ruling as to which it is invoked or a doubt in the mind of the reviewing court as to the correctness of the ruling. *Page 183
In the first place, the statement of the defendant in the district attorney's office is not a confession. On the contrary, it involved an explicit and direct denial of guilt of the crime charged or of any crime in connection with the defendant's transaction with the prosecuting witness. It was, therefore, unnecessary to show, preliminarily to the admission of the statement, that it was voluntarily made or not made under the inducement of hope or fear. (Greenleaf on Evidence, sec. 213.)
In the second place, I am clearly of the opinion that, had the defendant confessed that he committed the crime of larceny against the prosecuting witness under the circumstances characterizing the making of the statement which was allowed to go to the jury over his objection, we would be required to hold that it was voluntarily made. Before being questioned as to his connection with the alleged crime, the defendant was informed by the deputy district attorney that he was then in the presence of the officers of the law, including an officer who would probably have something to do with the presentation of the case against him at the trial. He was further sufficiently given to understand that he was not compelled to make a statement or "under any restraint or that there are any threats made against you or any promises made to you." This warning, I think, was sufficient to apprise the defendant of his right not to make a statement if he so elected, and that he would be shown no favor if he did make one. Of course, a confession, to be admissible as proof of guilt, must not have been "extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exercise of any improper influence." (3 Russell on Crimes, 6th ed., 478.) But, as our supreme court declared, in the case of thePeople v. Siemsen, 153 Cal. 387, 394, [95 P. 863], "whether a confession is free and voluntary is a preliminary question addressed to the trial court and to be determined by it, and a considerable measure of discretion must be allowed that court in determining it." (See, also, People v. Miller, 135 Cal. 69, [67 P. 12]; Hopt v. Utah, 110 U.S. 574, [28 L.Ed. 262, 4 Sup. Ct. Rep. 202]; People v. Burns, 27 Cal.App. 227, [149 P. 605].) Obviously, there must be some showing that the confession was freely and voluntarily made and without any previous inducement or offer of leniency in punishment, or by reason of any *Page 184 intimidation or threat. (People v. Miller, 135 Cal. 69, [67 P. 12].) And that there was such a showing in this case, I am, as before suggested, thoroughly persuaded.
As I understand the object of section 4 1/2 of article VI of the constitution, it is to be applied only where manifest error has been committed, and a review of the whole record, including the evidence, does not justify the conclusion that a miscarriage of justice will be the inevitable result of such error, if the judgment should be affirmed.
Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 10, 1916.