TUTTLE, Chief Judge.
These two cases arising out of the same trial and consolidated for argument and submission to this Court attack the judgment of the trial court on the ground that testimony of an extrajudicial confession of guilt was improperly admitted in evidence.
The appellants, together with a third person who has not appealed, were convicted of robbing a contract post office in a small grocery store in Fort Worth, Texas. They were picked up in California for speeding, questioned and taken into custody as suspects for having committed an assault on a police officer. While in custody their effects were searched and rolls of stamps were found. A Postal Inspector was called and he thereafter started questioning the appellants.
As found by the trial court upon a preliminary motion to suppress a written confession, the appellants gave oral statements to the Postal Inspector. These statements were made when the Inspector discussed with them the provisions of Rule 20, F.R.Cr.Proc. which permits an accused person arrested in a district other than that in which the crime was committed to have the case transferred to the district of his arrest if he elects to plead guilty. Thereafter, the officer persuaded them to sign a full confession upon his promise that he would try to obtain dismissal of state charges against them. Although not dealt with in the trial court’s order, the officer testified at the hearing on the motion that while he discussed the provisions of Rule 20 with them he made no promises and did not urge them to plead under it. However, on cross examination he testified as follows :
“Question: What reason did you give them about pleading guilty and taking a mandatory 25 year sentence ?
“Answer: They didn’t want to go back to Texas. Mr. Mitchell and Mr. Williams were afraid the government might drop the charges and the state might pick .them up and follow through on an habitual criminal charge [carrying a life sentence].”
The court ruled out the written confession, saying:
“I will sustain the motion and the objection to the written statement signed on July 23rd on the basis that it was induced by a promise on [671]*671the part of the postal inspector that he would, try to get the state court cases dismissed, and on that ground alone.”
After the men were brought back to Fort Worth and were being held in the county jail, another Postal Inspector visited them and talked to them. He testified at the hearing of the motion to suppress that after he warned them that the5r need not make any statement, that if they did the statement could be used against them, and that they could consult a lawyer, they made a full oral confession. He said that he called to see Howell, but Howell would not talk without the others being present. He then testified that with all three present, Howell did most of the talking and told in detail about the commission of the robbery. The three defendants did not take the stand, but they testified on the motion to suppress that they had made no admission at this session.
When the Postal Inspector was permitted to testify at the trial, detailing the admission he said had been made to him, counsel objected on the ground that the statement could not be received in evidence because of the inducements previously given to obtain the written confession.
The meeting between the three men and the Postal Inspector in Fort Worth was approximately one month after their signed confession had been taken in California.
The trial court gave a proper charge to the jury touching on the need for voluntariness of the admissions before they could be considered by the jury. Of course, the jury had not heard the testimony of the Postal Inspector who had stated that he made promises to the accused persons before they signed the confession.
The appellants here charge that the trial court’s overruling of the objection to the admission of the later oral confession was clearly erroneous. They say that the overhanging threat of the “state court cases” and the danger of a Texas prosecution was a continuing one and that it was just as much to their interest to cooperate with the Postal Inspector in August by giving a confession as it had been in July. We agree.
There can be no doubt about the rule that a confession made because of an inducement of the kind found by the trial court to have been offered in the first instance is as inadmissible as if forced by compulsion, threats or fear. The United States does not take issue with this proposition. In Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, cited recently in Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357, the Supreme Court said:
“A confession, in order to be admissible, must be free and voluntary: that is, * * * not * * * obtained by any direct or implied promises, however slight * *
Neither does the United States dispute the contention made here by the appellants that where a confession has been obtained by means of inducement, the burden is on the prosecution to show that the operating force of the inducement has been brought to an end before any subsequent confession may be received. This rule is stated by Wigmore as follows:
“The general principle is universally conceded that the subsequent end of an improper inducement must be shown, i. e., it is assumed to have continued until the contrary is shown.” 3 Wigmore, Evidence 375 § 855 (3rd ed. 1940).
A much more difficult issue is presented when the court must determine whether, in fact, the inducement has run its course as a motivating cause when a later confession is obtained.
In the case of United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654, the Supreme Court reaffirmed the proposition that, although it is difficult to visualize a case in which the motivating facts that produced the initial illegal confession are no longer a moving consideration entering into the [672]*672.giving of a subsequent admission, there ■are such cases. The Court in that case found that the lapse of a period of six months, coupled with the fact that the ■accused was not in custody other than being restricted to an army base, and the fact that he had had a number of interviews with the Federal Bureau of Investigation, in which he offered to fill in the details of his earlier confession, permitted a holding that the second confession was not infected with the weaknesses of the first.
Here the chronology is: (1) There were conversations with the three defend.ants in California shortly after it was believed that the United States might be interested in the cases, at which time the •federal agents discussed with the defend.ants their rights under Rule 20. The trial court held, on hearing the preliminary motion to suppress, that there had been no inducement offered at that time, 'but that the defendants made a substantially complete statement of their implication in the robbery.
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TUTTLE, Chief Judge.
These two cases arising out of the same trial and consolidated for argument and submission to this Court attack the judgment of the trial court on the ground that testimony of an extrajudicial confession of guilt was improperly admitted in evidence.
The appellants, together with a third person who has not appealed, were convicted of robbing a contract post office in a small grocery store in Fort Worth, Texas. They were picked up in California for speeding, questioned and taken into custody as suspects for having committed an assault on a police officer. While in custody their effects were searched and rolls of stamps were found. A Postal Inspector was called and he thereafter started questioning the appellants.
As found by the trial court upon a preliminary motion to suppress a written confession, the appellants gave oral statements to the Postal Inspector. These statements were made when the Inspector discussed with them the provisions of Rule 20, F.R.Cr.Proc. which permits an accused person arrested in a district other than that in which the crime was committed to have the case transferred to the district of his arrest if he elects to plead guilty. Thereafter, the officer persuaded them to sign a full confession upon his promise that he would try to obtain dismissal of state charges against them. Although not dealt with in the trial court’s order, the officer testified at the hearing on the motion that while he discussed the provisions of Rule 20 with them he made no promises and did not urge them to plead under it. However, on cross examination he testified as follows :
“Question: What reason did you give them about pleading guilty and taking a mandatory 25 year sentence ?
“Answer: They didn’t want to go back to Texas. Mr. Mitchell and Mr. Williams were afraid the government might drop the charges and the state might pick .them up and follow through on an habitual criminal charge [carrying a life sentence].”
The court ruled out the written confession, saying:
“I will sustain the motion and the objection to the written statement signed on July 23rd on the basis that it was induced by a promise on [671]*671the part of the postal inspector that he would, try to get the state court cases dismissed, and on that ground alone.”
After the men were brought back to Fort Worth and were being held in the county jail, another Postal Inspector visited them and talked to them. He testified at the hearing of the motion to suppress that after he warned them that the5r need not make any statement, that if they did the statement could be used against them, and that they could consult a lawyer, they made a full oral confession. He said that he called to see Howell, but Howell would not talk without the others being present. He then testified that with all three present, Howell did most of the talking and told in detail about the commission of the robbery. The three defendants did not take the stand, but they testified on the motion to suppress that they had made no admission at this session.
When the Postal Inspector was permitted to testify at the trial, detailing the admission he said had been made to him, counsel objected on the ground that the statement could not be received in evidence because of the inducements previously given to obtain the written confession.
The meeting between the three men and the Postal Inspector in Fort Worth was approximately one month after their signed confession had been taken in California.
The trial court gave a proper charge to the jury touching on the need for voluntariness of the admissions before they could be considered by the jury. Of course, the jury had not heard the testimony of the Postal Inspector who had stated that he made promises to the accused persons before they signed the confession.
The appellants here charge that the trial court’s overruling of the objection to the admission of the later oral confession was clearly erroneous. They say that the overhanging threat of the “state court cases” and the danger of a Texas prosecution was a continuing one and that it was just as much to their interest to cooperate with the Postal Inspector in August by giving a confession as it had been in July. We agree.
There can be no doubt about the rule that a confession made because of an inducement of the kind found by the trial court to have been offered in the first instance is as inadmissible as if forced by compulsion, threats or fear. The United States does not take issue with this proposition. In Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, cited recently in Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357, the Supreme Court said:
“A confession, in order to be admissible, must be free and voluntary: that is, * * * not * * * obtained by any direct or implied promises, however slight * *
Neither does the United States dispute the contention made here by the appellants that where a confession has been obtained by means of inducement, the burden is on the prosecution to show that the operating force of the inducement has been brought to an end before any subsequent confession may be received. This rule is stated by Wigmore as follows:
“The general principle is universally conceded that the subsequent end of an improper inducement must be shown, i. e., it is assumed to have continued until the contrary is shown.” 3 Wigmore, Evidence 375 § 855 (3rd ed. 1940).
A much more difficult issue is presented when the court must determine whether, in fact, the inducement has run its course as a motivating cause when a later confession is obtained.
In the case of United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654, the Supreme Court reaffirmed the proposition that, although it is difficult to visualize a case in which the motivating facts that produced the initial illegal confession are no longer a moving consideration entering into the [672]*672.giving of a subsequent admission, there ■are such cases. The Court in that case found that the lapse of a period of six months, coupled with the fact that the ■accused was not in custody other than being restricted to an army base, and the fact that he had had a number of interviews with the Federal Bureau of Investigation, in which he offered to fill in the details of his earlier confession, permitted a holding that the second confession was not infected with the weaknesses of the first.
Here the chronology is: (1) There were conversations with the three defend.ants in California shortly after it was believed that the United States might be interested in the cases, at which time the •federal agents discussed with the defend.ants their rights under Rule 20. The trial court held, on hearing the preliminary motion to suppress, that there had been no inducement offered at that time, 'but that the defendants made a substantially complete statement of their implication in the robbery. (2) All three •defendants signed a written confession, which the trial court held was inadmissible because it had been induced by promises on the part of the inspector that he would attempt to have the state •cases dismissed. (3) On the trial a .strong case was built up against the defendants by certain eye witnesses at the ■scene of the robbery. (4) The oral ■statements made in California by Williams and Mitchell (who has not appealed) were testified to by the Postal Inspector, Stokes. (5) Postal Inspector Powell then was permitted to testify to the oral admissions made by all three •defendants after the men had been returned to Texas and were in the Fort Worth jail.
It is to be noted that there was no testimony on the trial itself that Howell had ever made an oral statement in California prior to the signed confession. 'Therefore, the testimony given by Agent Powell of the oral admissions made in Fort Worth was the only proof of admission or confession by Howell. Thus, 'it may be quite significant that when Powell sought an interview he sought Howell alone, because apparently, either because of the inadequacy of the proof or the unavailability of the witness, there was no proof of an admission by Howell except the written confession. It is further significant that when Powell was cross examined on the trial, he admitted that the three defendants, when talking to him in the Fort Worth jail complained of having been tricked into signing the confession in California (the confession subsequently ruled out by the trial court on the motion to suppress).\ It is to be noted that therefore Powell was seeking to bolster a confession which was subsequently ruled out and also to obtain a confession which apparently the government needed against Howell if the written confession should be ruled out, whereas the defendants were all under the impression that they had already given a written confession that was to be used against them.,,
\ Under this state of facts we find no substantial effort by the government to carry the burden of showing that the circumstances which made the written confession inadmissible were no longer the motivating factors in producing the oral admissions given by the defendants in the Fort Worth jail. There is nothing to show that the promise of assistance in preventing the prosecution of these defendants by the State of California, and the avoidance as to two of them of a Texas prosecution under the habitual criminal act were not still in the forefront of their minds when they made the oral admissions after being returned to the Fort Worth jail. / It is certain, at least, that they were back in Texas where they could readily be prosecuted under the Texas law if the federal government saw fit to abandon the prosecution. As quoted above, one government witness testified that it was the fear of the Texas prosecution that motivated Williams and Mitchell in giving the original written confession.
We think, however, that the most important fact touching on the validity of the oral admissions made after the [673]*673men had been returned to Fort Worth, was their knowledge that they had already signed a written confession in full, and their lack of knowledge that this confession could not be used against them. Having already signed such a confession, (albeit, as they contended, by reason of being deceived into doing so) they gave no indication that they knew that this confession could be suppressed. Under these circumstances what would they gain by failing at this late date to refuse to cooperate fully with the prosecutor to the extent of repeating orally again what they had already said in writing? See 2 Wharton, Criminal Evidence, 63, Sec. 359 (12 ed. 1955), and People v. Jones, 24 Cal.2d 601, 150 P.2d 801, touching on the requirement that a prisoner should be informed that a prior invalid confession could not be used against him before his subsequent confession can be considered valid. We have no doubt that under the circumstances here present there was a burden on the government, before the acceptance of further oral admission or confession from the accused, to inform them that the original written confessions would not be offered or used against them. It is plain from the evidence here that the defendants were complaining of the existence of this outstanding written confession. Thus it is clear that the government agent did not tell them of its invalidity or the fact that the written confession would not be offered or used against them. Thus there would be no warrant in having a further finding of fact with respect to this point.
We conclude, therefore, that a new trial must be granted, at which the oral admissions obtained in the Fort Worth jail can not be used.
We have carefully considered the motion of the government to dismiss Howell’s appeal on the ground that he failed to file his notice of appeal within the proper time. We find that there was a sufficient compliance with the rule to satisfy the requirement.
The judgments are reversed -and the cases are remanded for further proceedings not inconsistent with this opinion.
The Court takes this means to express its appreciation to counsel who were appointed to represent the appellants on this appeal.