Appeal from District Court, Silver Bow Countyj J. B. Mc-Clemán, Judge.

GeoRGe A. McDonald was convicted of the crime o'f grand larceny. From the order denying his motion for a new trial and from the judgment he appeals.

As the prosecution in this case was under the provision of an act of the Montana legislature, approved February 23, 1897, amending Section 883 of the Penal Code of .this state, relating to grand larceny, it was immaterial what was the value of the horses described in the information. This act makes the stealing of the horses claimed by the witness, George Van, grand larceny, regardless of their value. (Secs. 1 and 2 of an Act to amend Sec. 883 of the Penal Code of Mont,, p. 247 of Laws of 1897.)

The overruling of the objection of the defense, at the trial, to1 the question, “State that conversation,” asked of the deputy sheriff, James Fitzsimmons, a witness for the state, as to an alleged statement made to him by the defendant, McDonald, at the time of his arrest, was error, and the testimony of this witness over the said objection was prejudicial to the defendant. The authorities are not uniform, as to the requirements of an alleged confession to an officer, to permit of its introduction in evidence at the trial, yet under none, was that testified to by the witness, James Fitzsimmons, competent or admissible. There should have been at least a, prima* facie case made by the witness as to the alleged statements of McDonald being free and voluntary, without promise of immunity or reward. The testimony of the witness upon this point was merely his own conclusions. In People v. Boto, reported in 4-9 Cal. page 67, the court say: “When such a confession is offered in a criminal case, it is incumbent on the prosecution to lay the foundation for its introduction by preliminary proof showing prima facie that it was freely and voluntarily made.” It is almost universally held that such confessions must be absolutely free and voluntary. We cite only a few of the many decisions to this effect: (Ter. v. McGlin, 1 Mont 394; Ter. v. Underwood, 8 Mont. 131; U. 8. v. Weihel, 8 Mont. 124; People v. Soto, 49 Cal. 67.) The deputy sheriff did not caution McDonald that these alleged statements would be used against him. This was necessary. (Baker v. State (Tex.), 8 S. W. 23; Searcy v. State (Tex.), 13 S. W. 782.)

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