¶1 (dissenting). The testimony introduced by the state on the preliminary hearing’ as to whether or not the appellant’s confession of guilt was free and voluntary was properly objected to by the appellant, and the action of the court in overruling appellant’s objection thereto was excepted to by the appellant. In substance, it showed that the confession was made by appellant in the nighttime, while he was under arrest with his hands tied behind him, in the presence of from twen *238 ty-five to seventy-five white people who liad gathered around him, some of them with. guns. Imagine a negro making a voluntary confession of the crime of murder under such circumstances and surroundings, especially in view of the well-known nature and characteristics of the negro, and his relations to the white race! Notwithstanding the witnesses for the state testified that no threats had been made against the appellant, nor had he been promised any reward before making the confession, the very atmosphere of the situation, it seems to me, showed that the confession was the result of fear —-the fear of being mobbed. The crowd surrounding the appellant in the nighttime,' with guns in the hands of some of its members, must have looked to him like a mob. Can it he said that the requirement of the law, that the evidence must show beyond a reasonable doubt that the confession was free and voluntary, was complied with? I think not.
¶2 My opinion, therefore, is that the judgment in this case ought to be reversed without looking to the testimony offered by appellant for the purpose of showing that his confession was not free and voluntary, and which the majority opinion holds should not be considered, because the appellant failed to move the court to exclude all testimony bearing on the question at the conclusion of the testimony offered by him.