JoNes, J.
In considering whether on the morning of September 28th there was a voluntary confession admissible in evidence we make full allowance for the fact that the de[121]*121fendant was vitally interested in the result; that his story was probably exaggerated;. and that under the most favorable circumstances he may not have been a very reliable witness. If his testimony had not been corroborated by other trustworthy witnesses and by the physical facts we might feel bound by the conclusion at which the trial court and the jury arrived. But there was very convincing evidence corroborating his testimony that the confession was made under duress.
1 Photographs of defendant’s body, taken about two days after the night when his statements were made, show beyond question that he had received very recent bodily injuries. No explanation was given by the state for this condition except that the injuries might have been incurred by falling from a window after one of the burglaries claimed to have been committed; but this was pure speculation. Physicians testified that the injuries were of such a nature that they were probably caused by blows and that it was not probable that they were caused by a fall. This testimony was practically uncontradicted.
'^At the instance of the officers, in order that “it might help him to think,” defendant stood facing the wall with his hands up for some time during the process of questioning. Statements made by the officers to disinterested witnesses were convincing that violence was used, and some of the officers even boasted of the disgraceful means they had used to obtain the confession.^
The defendant was taken from his bed at 11 o’clock at night to the police station, and the ordeal of questioning began. Although at times he complained that he was thirsty and faint, he was subjected to the “third-degree” inquisition until 4 o’clock. There was not the slightest evidence of any resistance on his part at any timeq Even if there had been no personal violence this treatment was an outrage which cannot be too severely condemned. In numerous cases this “sweating” process, when prolonged and so conducted as [122]*122to cause distress and mental anguish, has been held sufficient proof that the confession was involuntary. State v. Thomas, 250 Mo. 189, 157 S. W. 330; People v. Borello, 161 Cal. 367, 119 Pac. 500; People v. Loper, 159 Cal. 6, 112 Pac. 720; Comm. v. McClanahan, 153 Ky. 412, 155 S. W. 1131 (under a statute prohibiting “sweating”).
After the defendant had been reduced to what was supposed to be a sufficient state of submission, about 4 o’clock in the morning one of the officers, charged him with shooting Pacini. The officer testified in part as follows:
“I says ‘You might as well clear your conscience now and tell the truth.’ He says ‘No., I didn’t do that.’ Then he began smiling a sickly smile. He says ‘No, I didn’t do that.’ I says ‘Lang, if I ain’t looking at a murderer now I never looked at one in my life,’ and tears came into his eyes, and he says ‘Yes, I might as well tell the truth; I shot Charley.’ ”
The testimony on this branch of the case convinces us beyond doubt that the statements, of the defendant made under these circumstances, and which were relied on for his conviction, were made under duress which amounted to torture. The officers in charge of the prisoner on that night did not seem to realize that they were living in the twentieth century. In order to secure what they called a confession they adopted methods which might have been approved in the seventeenth century, when, on confessions procured by torture, persons were imprisoned and executed as witches, and when in state trials prisoners obnoxious to the ruling monarchs or their servants were condemned because, on the rack or under the lash, they had confessed their guilt.
The officers who secured the alleged confession in this case may have been sincere in their belief that the defendant killed Pacini and that the end justified the means. But officers of the law should understand that prisoners in their custody, even suspected felons, have sacred rights which must be respected, and one of these is freedom from such [123]*123violence as was inflicted in this case. For more than a century and a half such treatment of prisoners has been condemned by the courts of England and America, and there is no better settled rule of law than that confessions must be voluntary to be admissible in evidence. The rule and the reason were well stated in an English court in 1783 as follows:
“Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.” King v. Warwickshall, 1 Leach’s Crown Cas. (4th ed.) 263.
It is the rule recognized in every treatise on evidence and in every state and was long ago declared by this court. Schoeffler v. State, 3 Wis. 823; Flamme v. State, 171 Wis. 501, 177 N. W. 596; Bianchi v. State, 169 Wis. 75, 171 N. W. 639; Roszczyniala v. State, 125 Wis. 414, 104 N. W. 113. The reason generally assigned for rejecting confessions induced by violence or threats, or hope of reward, is that such testimony is too unreliable to sustain convictions for crime. But other cases also give as a reason that the reception of such evidence violates the constitutional privilege against self-incrimination. See the elaborate opinion of Mr. Chief Justice White in Bram v. U. S. 168 U. S. 532, 18 Sup. Ct. 183.
The cases in which the rule is most often applied are those where there have been threats of injury or promises of favor. There are numerous cases where confessions extorted by mob violence have been rejected. 16 Corp. Jur. 729. But it is creditable to the administration of justice in this country that there are comparatively few cases where [124]*124police officers have used actual violence to secure confessions.
Several decisions of this court are relied on by counsel for the state to sustain the contention that the statements made by defendant to the officers on the night in question were properly received. Hints v. State, 125 Wis. 405, 104 N. W. 110; Roszczyniala v. State, 125 Wis. 414, 104 N. W. 113; Tarasinski v. State, 146 Wis. 508, 131 N. W. 889. No violence to the prisoner was shown in these cases, and they all recognize the rule that confessions must be voluntary to be admitted in evidence. The rule has been declared in several recent decisions of this court in which it was held under circumstances "far more favorable to the state than those in the present case that the convictions should be reversed because tire confessions were involuntary. Bianchi v. State, 169 Wis. 75, 171 N. W. 639; Flamme v. State, 171 Wis. 501, 177 N. W. 596.
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JoNes, J.
In considering whether on the morning of September 28th there was a voluntary confession admissible in evidence we make full allowance for the fact that the de[121]*121fendant was vitally interested in the result; that his story was probably exaggerated;. and that under the most favorable circumstances he may not have been a very reliable witness. If his testimony had not been corroborated by other trustworthy witnesses and by the physical facts we might feel bound by the conclusion at which the trial court and the jury arrived. But there was very convincing evidence corroborating his testimony that the confession was made under duress.
1 Photographs of defendant’s body, taken about two days after the night when his statements were made, show beyond question that he had received very recent bodily injuries. No explanation was given by the state for this condition except that the injuries might have been incurred by falling from a window after one of the burglaries claimed to have been committed; but this was pure speculation. Physicians testified that the injuries were of such a nature that they were probably caused by blows and that it was not probable that they were caused by a fall. This testimony was practically uncontradicted.
'^At the instance of the officers, in order that “it might help him to think,” defendant stood facing the wall with his hands up for some time during the process of questioning. Statements made by the officers to disinterested witnesses were convincing that violence was used, and some of the officers even boasted of the disgraceful means they had used to obtain the confession.^
The defendant was taken from his bed at 11 o’clock at night to the police station, and the ordeal of questioning began. Although at times he complained that he was thirsty and faint, he was subjected to the “third-degree” inquisition until 4 o’clock. There was not the slightest evidence of any resistance on his part at any timeq Even if there had been no personal violence this treatment was an outrage which cannot be too severely condemned. In numerous cases this “sweating” process, when prolonged and so conducted as [122]*122to cause distress and mental anguish, has been held sufficient proof that the confession was involuntary. State v. Thomas, 250 Mo. 189, 157 S. W. 330; People v. Borello, 161 Cal. 367, 119 Pac. 500; People v. Loper, 159 Cal. 6, 112 Pac. 720; Comm. v. McClanahan, 153 Ky. 412, 155 S. W. 1131 (under a statute prohibiting “sweating”).
After the defendant had been reduced to what was supposed to be a sufficient state of submission, about 4 o’clock in the morning one of the officers, charged him with shooting Pacini. The officer testified in part as follows:
“I says ‘You might as well clear your conscience now and tell the truth.’ He says ‘No., I didn’t do that.’ Then he began smiling a sickly smile. He says ‘No, I didn’t do that.’ I says ‘Lang, if I ain’t looking at a murderer now I never looked at one in my life,’ and tears came into his eyes, and he says ‘Yes, I might as well tell the truth; I shot Charley.’ ”
The testimony on this branch of the case convinces us beyond doubt that the statements, of the defendant made under these circumstances, and which were relied on for his conviction, were made under duress which amounted to torture. The officers in charge of the prisoner on that night did not seem to realize that they were living in the twentieth century. In order to secure what they called a confession they adopted methods which might have been approved in the seventeenth century, when, on confessions procured by torture, persons were imprisoned and executed as witches, and when in state trials prisoners obnoxious to the ruling monarchs or their servants were condemned because, on the rack or under the lash, they had confessed their guilt.
The officers who secured the alleged confession in this case may have been sincere in their belief that the defendant killed Pacini and that the end justified the means. But officers of the law should understand that prisoners in their custody, even suspected felons, have sacred rights which must be respected, and one of these is freedom from such [123]*123violence as was inflicted in this case. For more than a century and a half such treatment of prisoners has been condemned by the courts of England and America, and there is no better settled rule of law than that confessions must be voluntary to be admissible in evidence. The rule and the reason were well stated in an English court in 1783 as follows:
“Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.” King v. Warwickshall, 1 Leach’s Crown Cas. (4th ed.) 263.
It is the rule recognized in every treatise on evidence and in every state and was long ago declared by this court. Schoeffler v. State, 3 Wis. 823; Flamme v. State, 171 Wis. 501, 177 N. W. 596; Bianchi v. State, 169 Wis. 75, 171 N. W. 639; Roszczyniala v. State, 125 Wis. 414, 104 N. W. 113. The reason generally assigned for rejecting confessions induced by violence or threats, or hope of reward, is that such testimony is too unreliable to sustain convictions for crime. But other cases also give as a reason that the reception of such evidence violates the constitutional privilege against self-incrimination. See the elaborate opinion of Mr. Chief Justice White in Bram v. U. S. 168 U. S. 532, 18 Sup. Ct. 183.
The cases in which the rule is most often applied are those where there have been threats of injury or promises of favor. There are numerous cases where confessions extorted by mob violence have been rejected. 16 Corp. Jur. 729. But it is creditable to the administration of justice in this country that there are comparatively few cases where [124]*124police officers have used actual violence to secure confessions.
Several decisions of this court are relied on by counsel for the state to sustain the contention that the statements made by defendant to the officers on the night in question were properly received. Hints v. State, 125 Wis. 405, 104 N. W. 110; Roszczyniala v. State, 125 Wis. 414, 104 N. W. 113; Tarasinski v. State, 146 Wis. 508, 131 N. W. 889. No violence to the prisoner was shown in these cases, and they all recognize the rule that confessions must be voluntary to be admitted in evidence. The rule has been declared in several recent decisions of this court in which it was held under circumstances "far more favorable to the state than those in the present case that the convictions should be reversed because tire confessions were involuntary. Bianchi v. State, 169 Wis. 75, 171 N. W. 639; Flamme v. State, 171 Wis. 501, 177 N. W. 596.
We recognize the rule that the admissibility of evidence as to the confession was for the determination of the trial judge in the first instance and that his decision should control unless it satisfactorily appears from the record that such decision was clearly against the evidence. Connors v. State, 95 Wis. 77, 69 N. W. 981; Roszczyniala v. State, 125 Wis. 414, 104 N. W. 113. But we are forced to the conclusion that the overwhelming weight of testimony established the fact that the statements made by the defendants were drawn from him through fear and even terror.
Although for convenience we use the word “confession” in this opinion, there was in fact no real confession during the night of horror which the testimony describes. We are convinced that the defendant was so maltreated that to escape further abuse he told whatever tales he thought would please his accusers. We therefore hold that the confession obtained on the morning of September 28th should not have been submitted to the jury.
[125]*125The next question for consideration is whether the subsequent statements of the defendant called confessions were voluntary. In the record there is an elaborate and able opinion by the trial court. We infer from it that he believed that the defendant was subjected to abuse by the officers on the night when he was taken into custody. But the' court came to the conclusion that in making subsequent statements the defendant was under no coercion and that these statements were voluntary.
After defendant’s sleepless night he was taken to Chicago by the officers to aid them in securing evidence to incriminate himself. They testified that he repeated parts of the confession on the journey, and two police officers from Chicago also testified to similar statements by him. Throughout the day he was in irons going from place to place with the officers. On the same day they returned to Kenosha and about 6 o’clock the police called in six persons, members of the Pacini family and their friends, and parts of the confession were repeated. Several others saw him during the evening in his cell and he admitted having killed Pacini.
During all these interviews one or more of the policemen who had abused him the night before were present.
The next morning he was taken to municipal court. He knew that his confession had become public, was in fear of being mobbed, and wanted “the more officers the better” to accompany him. The municipal judge explained that he would have the right to have an attorney and an examination, but defendant said he wanted to plead guilty. He was then taken to the circuit court and was informed that if he pleaded guilty he would be sentenced to state prison for life. He said he understood and pleaded guilty.
Then Mr. Buckmaster, who afterward appeared for him as attorney, came in and told the court he had heard that the confession had been obtained by duress. On retiring to [126]*126another room, in the presence of the judge and others the question was asked, “Lang, did you kill Pacini?” and he said “No, I didn’t.”
In determining whether the later confessions should be received the rule to be applied is thus stated in Corpus Juris:
“Although a confession may have been obtained by such means as would exclude it, a subsequent confession of the same or. like facts may and should be admitted, if it appears to the court, from the length of time intervening or from other facts in evidence, that the influence of the promise or threat had been removed. But where a confession has been obtained under circumstances rendering it involuntary and inadmissible, a presumption exists that any subsequent confession arose from a continuance of the prior influence, and this presumption must be overcome before the subsequent confession can be received in evidence. The controlling influence which produced the prior confession is presumed to continue until its cessation is affirmatively shown, and evidence to overcome or to rebut this presumption must be very clear, strong, and satisfactory; if there is any doubt on this point the confession must be excluded.” 16 Corp. Jur. 722, 723.
This statement of the law is sustained by many authorities. Flamme v. State, 171 Wis. 501, 177 N. W. 596; Thompson v. Comm. 20 Gratt. (Va.) 724; State v. Drake, 82 N. C. 592; People v. Johnson, 41 Cal. 452; State v. Brown, 73 Mo. 631; Deathridge v. State, 33 Tenn. 75; Mackmasters v. State, 82 Miss. 459, 34 South. 156; Smith v. State, 74 Ark. 397, 85 S. W. 1123; Comm. v. Sheets, 197 Pa. St. 69, 46 Atl. 753. See cases cited in 16 Corp. Jur. p. 723, § 1481.
The defendant testified that the reason he did not assert the truth was that he feared he “would be beaten some more, there were always officers around.” We might not accept this statement if it were not strongly corroborated by the preceding facts, and if the fear was unreasonable under all the circumstances. We infer, from the testimony [127]*127that defendant was weak morally, intellectually, and physically. He had been sadly addicted to drink. In the interval of about thirty-four hours between his seizure and his appearance in court he had gone through experiences which ill fitted him to act with resolution or good judgment. There had been no warning at any time that his confessions would not criminate him unless voluntarily made. He had good reason to believe that a repudiation of his confessions would anger the officers who had maltreated him. It is significant that at the first instant when an attorney appeared who in his judgment could give him some help or protection he denied his guilt. The lapse of time between the first confession and the others was very brief. Much longer periods of time have been held insufficient to remove the fear or hope of favor which led to the original confession. Flamme v. State, supra; U. S. v. Cooper, 25 Fed. Cas. 629; State v. Chambers, 39 Iowa, 179; Dinah v. State, 39 Ala. 359. We are convinced that the controlling influence which exacted the first confession had not been removed when defendant entered his plea of guilty, and that the state failed to meet the burden which the law in such cases imposes.
Error is assigned on the claim that there were erroneous instructions given to the jury. Among the instructions were the following:
“Evidence of confessions made by the defendant that he killed Pacini has been received in this case. The mere fact that a confession was made without the accused having been cautioned or warned that it might be used against him, if you find such to be the fact in this case, does not render it unworthy of credit, if otherwise credible. The mere fact that a confession was made or elicited in an examination by police or others in authority, while the accused was in custody or confinement, does not render it unworthy of credit, if otherwise credible, or stamp it as involuntary or as given under duress.
“If you believe that any confession in evidence was ob-[128]*128tamed by abuse, force, threats, or coercion, or while, according to< the evidence, the defendant was under the influence of fear of physical punishment by those having him in custody, then you may, if you believe it false and unworthy of credit, reject any confession so obtained. The burden of proof that confessions were voluntary and not obtained by improper means is upon the state.”
It is conceded by counsel for the state that part of the second paragraph was erroneous, in that it did not require the jury to reject the confessions if involuntary, but also made the falsity of the confessions a condition of rejection. But it is claimed that the error was cured by other portions of the charge and was not prejudicial.
The cases already cited show that when a confession is involuntary it should be rejected. When it is submitted to' the jury to find whether it was involuntarily made or induced by fear or hope of favor, that is the first and prime question for their consideration. If in this case they had believed the confessions to be true but that they had been obtained by personal violence, it would have been their duty,- under proper instructions, to reject them entirely. Numerous witnesses testified to the confessions and thus gave to the state the aid of their influence. The jury were probably deeply impressed by the .claim that the confessions were true, but they were in effect told that’ they should not be rejected unless false and unworthy of credit.
It is true that in other parts of the charge the jury were told that unless the confessions were voluntarily made they should be rejected; that the burden of proof that they were voluntary rested on the state; that if they found that the original confession was not voluntary it was the presumption of law that the coercion continued. Full instructions' as to the presumption of innocence and other subjects involved in the case were given, and the trial court evidently sought to give the accused a fair trial.
Nevertheless we do not find in the entire charge any [129]*129clause which might remove the inference to be drawn from it that the falsity of the confession was a condition to its rejection. That inference was rather confirmed than removed by the following instruction:
“You are at liberty to accept or reject the whole or any part of any or all of the confessions accordingly as you are satisfied by the evidence that they or any part of them were obtained or made under proper or improper influence or conditions and accordingly as you are satisfied by the evidence they are entitled to credit or not, just as you are at liberty to so treat any of the evidence in the case.”
In considering whether the instruction objected to was prejudicial it is important that there was no evidence in any manner connecting the defendant with the crime except his confessions. The vital question in the entire case was whether they were voluntary. The charge was in writing and taken by the jury to their room. It is not improbable that they may have believed that the all-important question was whether the confessions were true, and they may have given far too little attention to the manner in which they were secured.
Errors were assigned as to other portions of the charge, the admission and rejection of evidence, and the remarks of counsel for the state in the argument to the jury, which it becomes unnecessary to consider. Nor is it necessary to discuss the motion for a new trial based in part on the claim that there was newly-discovered evidence and that counsel appointed to assist the district attorney was interested in the result. When the prosecution rested, defendant’s counsel moved that defendant be discharged. Considerable testimony was afterward received, and after verdict there was a motion for a new trial but no renewal of the motion to discharge the defendant.
On the whole record we are compelled to hold that defendant did not have a fair trial and that the judgment should be reversed.
[130]*130By the Court. — Judgment reversed, and cause remanded for a new trial. The warden of the state prison will deliver the plaintiff in error, Frank Lang, to the sheriff of 'Kenosha county, who is directed to keep the said Lang in his custody until discharged therefrom by due process of law.