§ 124. The accusatory assertion or question.-The statement to be proved should be directly or indirectly relevant to the guilt of the accused. It must refer to matters upon which he is likely to be informed,24 as for example a statement by deceased that the accused had shot him while running and that "you will have to die some day and give an account of this."'25

His silence will not be admissible against the accused if there were nothing in the statement which required or demanded a denial from him. So, vague comments on the crime, or rumors about the circumstances of it, not particularly pointing to or concerning the accused are not relevant against him, though he was silent when he heard them.26

Every sane man is in a position to deny or affirm statements regarding his own acts. But it is both unfair and absurd to construe his silence as respects other men's acts, of which, probably, he had no knowledge, as an affirmance or approval of them, or of any inference which may be drawn therefrom.27

The accusing declaration or question is not evidence because of the veracity, credibility or competency of its author. The assent of the accused makes it admissible, the statement being put in his mouth by the assent implied from his silence, and its truth, as it were, guaranteed by the acquiescence of the accused,

"Accusations by the wife of a man, whom defendant is alleged to have killed, that he had killed her husband, that he had told her so, and had told her he would kill her, too, if she revealed the crime, made in defendant's presence, to which he replied that he would answer to the magistrates, may be proved by any one who heard them. Such charges clearly call for a prompt denial. Miller v. State, 68 Miss. 221, 8 So. 273; Rains v. Commonwealth (Ky.), 92 S. W. 276, 29 Ky. L. 66.

25 State v. Sudduth, 74 S. Car. 498, 54 S. E. 1013.

Pac. 281; Conway v. State, 118 Ind. 482, 21 N. E. 285; Commonwealth v. Brown, 121 Mass. 69; People v. O'Brien, 68 Mich. 468, 36 N. W. 225; State v. Murray, 126 Mo. 611, 29 S. W. 700; People v. Smith, 172 N. Y. 210, 64 N. E. 814; People v. Koerner, 154 N. Y. 355, 48 N. E. 730; Ettinger v. Commonwealth, 98 Pa. St. 338; Moore v. State, 96 Tenn. 209, 33 S. W. 1046.

because it contains facts which he was called upon, but failed, to deny.28

Thus, for example, statements made in the presence of the accused which lead directly to the crime or connected him directly with it called for a denial by him and his failure to deny such statements render the statements admissible.29

31

The incompetency of the person who makes the accusation as a witness against the accused will not keep out his statement.30 Thus a statement made by the four-year-old son of the accused, in his presence and in the presence of a police officer, showing the circumstances of the crime, may be proved by the police officer with the fact of the silence of the accused.30a But a statement by an accomplice of the accused made in his presence while in custody is not made admissible against the accused by his silence. A witness may testify that the declaration was made in the presence of the accused. He will not be permitted, however, to state his opinion that the accused must have heard it, for that is not for the witness to determine. The person who made the statement is not an indispensable witness, as the statement and the silence of the accused may be proved by anybody who was present and heard the conversation.33 The cases are not harmonious upon the mode of proving that the accused heard and understood the declaration, or whether the judge or jury are to determine these facts.

On the one hand it is affirmed that the facts that he heard and understood may be inferred by the jury from evidence that the

28 Drumwright v. State, 29 Ga. 430; State v. Talmage, 107 Mo. 543, 17 S. W. 990; Johnson v. State, 90 Miss. 317, 43 So. 435; People v. Long, 7 Cal. App. 27, 93 Pac. 387. An implicating letter, written by a person not produced, is admissible against the accused, though neither the signature of the writer nor the truth of the accusation is proved, if defendant refuses to deny or explain it. People v. Lewis, 16 N. Y. S. 881, 62 Hun (N. Y.) 622 (without opinion).

29 People v. Sullivan, 3 Cal. App. 502, 86 Pac. 834.

statement was made in his physical presence, or from his nearness and attitude as a listener.34 On the other, it is held that this is not enough, and that affirmative evidence is required to show prima facie to the satisfaction of the court that the attention of the accused was attracted, and that he did actually and distinctly hear and understand, before the statement shall be permitted to go to the jury as his admission." If it appears indubitably that the accused was asleep, or was unconscious from intoxication or otherwise, or that the statement was in a language he did not understand, so that he could not hear or understand, his silence is not competent."

37

38

36

State v. Perkins, 3 Hawks (N. Car.) 377; Simmons v. State, 115 Ga. 574, 41 S. E. 983; Commonwealth v. Galavan, 9 Allen (Mass.) 271; Hall v. State, 132 Ind. 317, 321, 31 N. E. 536; Commonwealth v. Brailey, 134 Mass. 527, 530; Commonwealth v. Sliney, 126 Mass. 49, 50; Richards v. State, 82 Wis. 172, 51 N. W. 652; State v. Johnson, 73 N. J. L. 199, 63 Atl. 12; Kelley v. People, 55 N. Y. 565, 14 Am. 342; People v. Bissert, 172 N. Y. 643, 65 N. E. 1120, aff'g 71 App. Div. (N. Y.) 118, 75 N. Y. S. 630.

25 Hall v. State, 132 Ind. 317, 31 N. E. 536, 537; Long v. State, 13 Tex. App. 211; Williams v. State, 42 Ark.

CHAPTER XII.

CONFESSIONS.

$ 125. Definition and classification. 126. Voluntary character of confessions.

127. Burden of proof to show voluntary character.

128. Circumstances

under which confession becomes involuntary.

129. Confessions made while under arrest.

130. Effect of cautioning the accused.

131. Confessions under oath.

132. Confessions taken at the preliminary examination.

133. Mode of proving a confession made at the preliminary examination.

134. Confessions of persons asso-
ciated in a conspiracy.

135. Artifice or deception used.
136. Confessions by intoxicated per-

sons.

137. Admissions receivable though involuntary.

$138. When facts discovered admit parts of an involuntary confession.

139. Confessions procured by persons in authority.

140. Confession need not be spontaneous.

141. Confessions made by signs or
gestures.

142. Confessions of treason.
143. Confessions made by young

children.

144. Judicial confessions-Plea of guilty.

145. Confessions of persons not indicted.

146. The value of confessions as evidence.

147. Corroborations of extra judicial confessions.

147a. Credibility of confession and use of in favor of the accused.

§ 125. Definition and classification.-A confession is a statement made at any time by a person, admitting or suggesting the inference that he has committed, or participated in the commission of, a crime. The statement must be made voluntarily and without any fear by or promise to him before it will be admitted as evidence against him on a criminal trial.1

1

1 People v. Miller, 122 Cal. 84, 54 Pac. 523; Allred v. State, 126 Ga. 537, 55 S. E. 178; Collins v. Common

wealth (Ky.), 15 Ky. L. 835, 26 S. W. 1; Taylor v. State, 37 Neb. 788, 56 N. W. 623; State v. Porter, 32

A confession is distinguished from an admission by the fact that an admission is a statement of a fact not necessarily incriminating the accused person. The necessity for drawing a line between the two classes of statements, confessions and admissions, arises from the fact that admissions are always admissible as an exception to the rule excluding hearsay irrespective of the motive or inducement which prompted them, provided they are made against the interest of the person making them, while confessions must be shown to be entirely unprompted, either by the motives of hope or fear. Thus a statement by the accused showing how the crime was committed by other persons, he being present, but denying that he took part in it, or a statement by the accused which admits the commission of the act which is charged against him, but which denies that it was done with a criminal intent,* is an admission merely, and not a confession. An offer by the accused to compromise the charge against him by paying money is not a confession, but is admissible as an admission. The

Ore. 135, 49 Pac. 964, 966; State v. Heidenreich, 29 Ore. 381, 45 Pac. 755; Runnels v. State, 42 Tex. Cr. App. 555, 61 S. W. 479. "A confession in criminal law is the voluntary declaration by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the crime. The word confession is not the mere equivalent of the words, statements or declarations." People v. Strong, 30 Cal. 151. A confession of guilt is an acknowledgment of the criminal act or of the facts that constitute the crime. Statements of facts and circumstances that do not in effect or by inference admit the commission of a crime do not in general constitute a confession of guilt. Daniels v. State (Fla.), 48 So. 747. "A confession, in criminal law, is a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act and the

share and participation he had in it." Black's Law Dictionary, aff'd in Owens v. State, 120 Ga. 296, 298, 48 S. E. 21; Spicer v. Commonwealth (Ky.), 51 S. W. 802, 21 Ky. L. 528; State v. Brinkley (Ore., 1909), 105 Pac. 708.

3

2 State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 L. R. A. (N. S.) 533n. Jones v. State, 120 Ala. 303, 25 So. 204; Dumas v. State, 63 Ga. 600; Boston v. State, 94 Ga. 590, 20 S. E. 98; State v. Heidenreich, 29 Ore. 381, 45 Pac. 755; Bell v. State, 93 Ga. 557, 19 S. E. 244; People v. Elliott, 8 N. Y. St. 223; State v. Gilman, 51 Me. 206, 225; Burnett v. State (Neb., 1910), 124 N. W. 927; State v. Kneeland (Mont., 1909), 104 Pac. 513.

State v. Abrams, 131 Iowa 479, 481, 108 N. W. 1041; State v. Thomas, 135 Iowa 717, 725, 109 N. W. 900; Owens v. State, 120 Ga. 296, 48 S. E. 21.