The opinion
Landon, J.
(dissenting):
I am unable to concur. The rule respecting the admission of confessions has, as I think, been limited by section 395, Code of Criminal Procedure.
That section says, the confession “ can be given in evidence, unless made under the influence of fear produced by threats, or unless made upon a stipulation of a district attorney that he shall not be prosecuted therefor.”
Unless ’this confession was made under the fear, or upon the stipulation defined by this section, the confession “ can be given in evidence.” That it was not made under the influence of fear produced by threats, or upon any stipulation of the district attorney, seems clear from the fact that it was made under the influence of hope inspired by a promise suggested by the officer having him in custody, that the defendant would, if he made the confession, have the benefit of a State’s witness.
The distinction between a confession made under the influence of fear produced by threats, and a confession procured through seductive influences must have been present to the minds of the legislature. The former is practically a violation of the constitutional provision that no person shall in any criminal case be compelled to accuse himself; the latter is open to no such criticism, but presents simply a question of governmental ethics or policy, over which the legislature has power. That it is a departure from the long established common law rule may be conceded, but the legislature made that departure, and the courts must respect it. If there were otherwise any doubt upon the question it would seem to be settled by the language of the couimissioners in tlieir first report of the penal code to the legislature. This report may be found in assembly document 150, for 1855. Section 449 of that report is the original draft of the present section 395. In submitting it the commissioners said : “ There is, perhaps, no rule of evidence in criminal cases, which has given rise to more discussion in the courts than that which relates to confessions. It is proposed by this section to declare the rule, so that there may be no doubt hereafter, and at the same time to open the door to confessions in many cases where they are now excluded. The law has been too tender in this respect. It should be its policy, as the commissioners conceive, to let, in all the light *347 possible, trusting to the discretion of juries to distinguish between the false and the true. Confessions not excluded by this rule may be given in evidence, with all the circumstances attending them, and the jury will give such credence to the evidence as its own character and those circumstances may justify.”
There was no conflict in the testimony respecting the circumstances under which the confession was made. In no aspect of it could the inference be reasonably drawn that the confession was made under the influence of feal produced by threats; and the district attorney, who refused even to make a promise, as I think, made no representation or statement that could be considered ecpiivalent to a stipulation. Nor do I think this would be suggested, except upon a construction of the statute which the legislature seems to have tried to prevent.
It was, therefore, the duty of the trial court, upon this testimony, to hold that the confession was admissible, and it was proper to instruct the jury that their only duty with respect to it was to consider its truth and effect.
Judgment and conviction reversed and new trial granted.