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2 Ashcraft et al. vs. State of Tennessee. The record discloses that neither the trial court nor the Ten- nessee Supreme Court actually held as a matter of fact that petitioners’ confessions were ‘‘freely and voluntarily made.'"’ The trial court heard evidence on the issue out of the jury’s hearing, but did not itself determine from that evidence that the confes- sions were voluntary. Instead it over-ruled Asheraft’s objection to the use of his alleged confession with the statement that, ‘This Court is not able to hold, as a matter of law, that reasonable minds might not differ on the question of whether or not that alleged _ eonfession was voluntarily obtained.’’ And it likewise over- _ ruled Ware’s objection to use of his ali2ged confession, stating that ‘‘the reasonable minds of twelve men might . . . differ as to . Whether Ware’s confession was voluntary, and . . . there- fore, that is a question of fact for the jury to pass on.’’! Nor did the State Supreme Court review the evidence pertaining to the confessions and affirmatively hold them voluntary. In sus- taining the petitioners’ convictions, one Justice dissenting, it went no further than to point out that, ‘‘The trial judge . . . held . . - be could not say that the confessions were not voluntarily made and, therefore, permitted them to go to the jury’’, and to declare that it, likewise, was ‘‘unable to say that the confessions were not freely and voluntarily made.’ If, therefore, the question of the voluntariness of the two con- fessions was actually decided at all it was by the jury. And the jury was charged generally on the subject of the two confessions as follows: The legal test applied by the trial gourt to determine the admissibility of the two confeasions was stated thus: ‘<The Court bas ¢ome to the conclusion . . . that the law in Tennessee With reference to coufession is simply this: it is largely a question of fact as to whether or not a confession ig yoluntary, and is made without hope of reward or fear of punishment. If only becomes a question of law for the Court to decide when, from the facts aurrounding the taking of the alleged con- fessions or statements, the Court, as a matter of law, can hold that the State has failed to carry its burden, which it has of showing that the confeasiona were free and voluntarily, and that reasonable minds could not differ, and could come to but one conclusion that the confessions were involuntary and forced.** 2 Notwithstanding the apparent fact that neither the trial court nor the appellate court affirmatively held the confessions voluntary, the Tennessee Supreme Coust, in ita opinion, reatated the rule it had announced in previous eases, that, * “When confessions are offered as evidence, their competency becomes a preliminary question, to be determined by the Court... . [If] the judge allow the jury to determine the preliminary fact, it is error, for which the judgment will be reversed.’’ See Self v. State, 65 Tenn. 244, 253. ' Ashcraft et al, vs. State of Tennessee. 3 “I further charge you that if verbal or written statements made by the defendants freely and voluntarily and without fear of pun- ishment or hope of reward, have been proven to you in this case, you may take them into consideration with all of the other facts and circumstances in the case. . In statements made at the time of the arrest, you may take into consideration the condition of the minds of the prisoners owing to their arrest and whether they were influenced by motives of hope or fear, to make the state- ments. Such a statement is competent evidence against the de- fendant who makes it and is not competent evidence against the other defendant . . You cannot consider it for any purpose against the other defendant.’’ Concerning Asheraft’s alleged confession this general charge constituted the sole instruction to the jury.7 But with regard to Ware’s alleged confession the jury further was instructed : ‘“*It is his [Ware’s] further theory that he was induced by the fear of violence at the hands of a mob and by fear of the officers of the law to confess his guilt of the crime charged against him, but that auch confession was false and that he had nothing what- soever to do with, and no knowledge of the alleged crime. If you believe the theory of the defendant, Ware, . it is your duty to aequit him.’ Having submitted the two alleged confessions to the jury in this ' Inanner, the trial court instructed the jury that: ‘What the proof may show you, if anything, that the defendants have said against themselves, the law presumes to be true, but any- thing the defendants have said in their own behalf, you are not ‘obliged to believe, . . .’? This treatment of the confessions by the two State courts, the manner of the confessions’ submission te the jury, and the em- phasis upon the great weight to be given confessions make all the more important the kind of ‘‘independent examination’’ of peti- tioners’ claims which, in any event, we are bound to make. Lisenba v, California, 314 U. 8, 219, 237-238. Our duty to make that ex- amination could not have been ‘‘foreclosed by the finding of a court, or the verdict of a jury, or both.’’ Id. We proceed there- fore to consider the evidence relating to the cireumstances out of which the alleged confessions came. %On motion for new trial, Asheraft’s sounsel arged error in that, ‘‘The court . . . in delivering his’ charge te the jury .. . in no place or at any time . . . presented the theory of the defendant Asheraft to the jury. He wholly and completely in hia charge ignored the theory of the defendant Ash- craft that the alleged confessions or admissions made by him . . . were not freely and voluntarily made. . . .’?