another person54 for the crime with which he is now charged, may be used against him. A different rule is applicable to sworn statements made after the accused is under suspicion. Generally the accused is not sworn upon the preliminary examination. If his statement is taken under oath it will be rejected if offered as a confession, upon the ground that its free and voluntary character has been destroyed by adding to the existing embarrassments of his position, the apprehension of a possible punishment for perjury.55 The rule that a confession by the accused is competent, though given under oath, is applicable to those very numerous cases in which a person, being tried upon a charge of homicide, has testified as a witness at the coroner's inquest. The mere fact that at the time of the inquest he was suspected of the homicide will not exclude his incriminating statements voluntarily made if it appears that he knew he could decline to answer if he wished to do so and he was not under arrest at the time. They may be sel for the prisoner took the further ground here that it was incompetent to prove the evidence of the prisoner, because it was in the nature of a confession, which, compelled by an oath, was not voluntary. It is certainly no objection to the evidence, merely, that the statement of the prisoner was given by him, as a witness under oath. He might have refused to answer questions, when he could not do so without criminating himself, and the very ground of that rule of law is that his answers are deemed voluntary and may be used afterwards to criminate or charge him in another proceeding, and such is clearly the law." 5-4 505; State v. Lewis, 39 La. Ann. 1110, 3 So. 343; People v. Burt, 51 App. Div. (N. Y.) 106, 64 N. Y. 417; State v. Vaigneur, 5 Rich. (S. Car.) 391; Dickerson v. State, 48 Wis. 288, 4 N. W. 32. People v. Gibbons, 43 Cal. 557; State v. Welch, 36 W. Va. 690, 15 S. E. 419; Schoeffler v. State, 3 Wis. 823, 839, 841; United States v. Bascadore, 2 Cranch C. C. 30, 24 Fed. Cas. 14536; Angling v. State, 137 Ala. 17, 34 So. 846, and see Underhill on Evidence, page 131; Steele v. State, 76 Miss. 387, 24 So. 910. But the confession of a person who voluntarily goes before a magistrate and confesses will be received. People v. McGloin, 91 N. Y. 241, 246; Commonwealth v. Clark, 130 Pa. St. 641, 650, 18 Atl. 988. People v. McMahon, 15 N. Y. 384, 390; Burnett v. State, 87 Ga. 22, 13 S. E. 552; People v. Mitchell, 50 State v. David, 131 Mo. 380, 33 S. 94 Cal. 550, 555, 29 Pac. 1106; Peo- W. 28; Wilson v. State, 110 Ala. 1, ple v. Gallagher, 75 Mich. 512, 525, 20 So. 415, 55 Am. St. 17; Jenkins 42 N. W. 1063; Harris v. State, 37 v. State, 35 Fla. 737, 18 So. 182, 48 Tex. Cr. App. 441, 36 S. W. 88; People v. Cokahnour, 120 Cal. 253, 52 Pac. Am. St. 267; People v. Strollo, 191 subsequently used against him as a confession, and are to go to the jury for what they are worth, though the accused was not cautioned that they might be used against him. If, however, he is under arrest, or if he has been indicted, or formally charged with the crime, he stands in the position of a prisoner on trial. He is then entitled to the same privilege of declining to testify and warning, that what he says may be used against him, so far as his sworn statement is concerned, as a prisoner at the preliminary examination. He cannot, directly or indirectly, be compelled to testify against himself." § 132. Confessions taken at the preliminary examination.-The preliminary examination of an accused person has for its main objects the perpetuation of the testimony against him, the ascertainment if he shall be held to await the action of the grand jury, and if so, whether he shall be admitted to bail. When the accused is brought before the justice, the latter must, as soon as Chapleau, 121 N. Y. 266, 24 N. E. 469; People v. Mondon, 103 N. Y. 211, 8 N. E. 496, 57 Am. 709; Feople v. Kent, 41 Misc. (N. Y.) 191, 83 N. Y. S. 948, 17 N. Y. Cr. 461; People v. McGloin, 91 N. Y. 241; State v. Finch, 71 Kan. 793, 81 Pac. 494; State v. Taylor, 36 Kan. 329, 13 Pac. 550; Anderson v. State, 133 Wis. 601, 114 N. W. 112; People v. Martinez, 66 Cal. 278; State v. Coffee, 56 Conn. 399, 16 Atl. 151; Kirby v. State, 23 Tex. App. 13, 5 S. W. 165; Emery v. State, 92 Wis. 146, 65 N. W. 848; Reg. v. Wiggins, 10 Cox Cr. Cas. 562; McMeans v. State (Tex.), 114 S. W. 837; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193n. 67 Adams v. State, 129 Ga. 248, 58 S. E. 822, 17 L. R. A. (N. S.) 468; State v. Senn, 32 S. Car. 392, 402, II S. E. 292; State v. Carroll, 85 Iowa 1, 51 N. W. 1159; Hendrickson v. People, 10 N. Y. 13, 61 Am. Dec. 721, 9 How. Pr. (N. Y.) 155; Teachout v. People, 41 N. Y. 7, 13; People v. Mondon, 103 N. Y. 211, 214, 8 N. E. 496, 57 Am. 709, 2 N. Y. St. 713, 4 N. Y. Cr. 552; Clough v. State, 7 Neb. 320, 340. Cf. People v. McMahon, 15 N. Y. 384; State v. O'Brien, 18 Mont. 1, 43 Pac. 1091, 44 Pac. 399; State v. Matthews, 66 N. Car. 106. But where he voluntarily appeared and was properly cautioned, it was held otherwise in State v. Leuth, 5 Ohio C. C. 94: State v. Mullins, 101 Mo. 514, 14 S. W. 625; Emery v. State, 92 Wis. 146, 65 N. W. 848. See Underhill on Evidence, 93. And what the accused voluntarily says on his preliminary examination, as when he asks for the aid of counsel or requests an adjournment, may, though not amounting to a confession of guilt, be proved against him if relevant on his trial. State v. Fooks, 65 Iowa 196, 452, 21 N. W. 561, 773; Gonzales v. State, 12 Tex. App. 657. possible, examine the witnesses for and against him under oath. The accused must be present when this evidence is received, though the examining magistrate may exclude all witnesses except the one who is testifying. The accused may be sworn at his own request, and examined as a witness in his own behalf, under the restrictions which apply to the examination of defendants in criminal trials. He should, in justice to himself, be informed of his right to refrain from testifying. He should be told that he need not answer any questions, and that his silence or express refusal to answer incriminating questions cannot be used against him on his trial.58 After thus having been warned, anything he may say in the nature of a confession and which is not under oath, may be used against him on his trial.5" And where, having been instructed as to his right to remain silent at the preEminary examination, if he so desires, he voluntarily goes on the witness stand and, under oath, testifies to his version of the facts in the case, anything he may say of an incriminating nature under such circumstances, though he is under oath, may be used against him subsequently as his confession." V. be proved against him as a confession, his voluntary testimony under oath, given in a proceeding in which he elects and is authorized to testify ought to stand upon at least as favorable a footing." People v. Kelley, 47 Cal. 125. 59 State v. Bruce, 33 La. Ann. 186; State v. Needham, 78 N. Car. 474; State v. Hatcher, 29 Ore. 309, 44 Pac. 584, 585; Shaw v. State, 32 Tex. Cr. App. 155, 22 S. W. 588, 590. 58 The failure of an examining his voluntary unsworn statement may magistrate to inform the accused of the statute, permit him to waive making a statement and also that his waiver cannot be used against him on his trial excludes his statement as an involuntary confession. State Hatcher, 29 Ore. 309, 44 Pac. 584, 588; State v. O'Brien, 18 Mont. I, 43 Pac. 1091, 44 Pac. 399. "The result of these several provisions is, that now an accused person, with his consent, may become a witness either for or against himself at the preliminary examination before the magistrate; and if he voluntarily becomes a witness under such circumstances as to render it clear that his testimony was purely voluntary, and free from restraint or undue influence, there can be no reason why it may not be given in evidence against him on his subsequent trial for the offense. If 17-UNDERHILL CRIM. EV. Go Green v. State, 40 Fla. 474, 24 So. 537; Daniels v. State (Fla. 1909), 48 So. 747; People v. Butler, III Mich. 483, 485, 69 N. W. 734; Steele v. State, 76 Miss. 387, 394, 24 So. 910; State v. Lewis, 73 Mo. App. 619, 621; State v. Needham, 78 N. Car. 474; Commonwealth v. Clark, 130 Pa. St. 641, 650, 18 Atl. 988; Preston v. State, 41 Tex. Cr. App. This is the general rule in most states, but there are exceptions either by statute or by judicial decision. Thus, in some of the states, it is expressly required that the accused shall be cautioned on his preliminary examination that anything he may say may subsequently be used against him. Generally, it will have to be shown that the accused has been properly advised of his right to have counsel, of his right to decline to testify at all, or, if he sees fit to testify, then as to his right to refuse to answer incriminating questions. If a statute requires that the accused shall be informed of his right to waive making a statement, anything he may say will be inadmissible against him if the record does not show that he was warned.61 Where a person against whom a charge is being investigated by the grand jury, voluntarily appears and testifies, his confession thus obtained is subsequently admissible on his trial. But if the accused is compelled to go before the grand jury and is compelled to answer over his objections, anything he may admit is subsequently not admissible as his confession.63 300, 53 S. W. 127, 881; State v. Lyts, 25 Wash. 347, 65 Pac. 530; State v. Glass, 50 Wis. 218, 221, 6 N. W. 500, 36 Am. 845; Wilson v. United States, 162 U. S. 613, 624, 40 L. ed. 1090, 16 Sup. Ct. 895. 61 State v. Hatcher, 29 Ore. 309, 44 Pac. 584; People v. Butler, III Mich. 483, 69 N. W. 734; Ford v. State, 75 Miss. 101, 21 So. 524; State v. Melton, 120 N. Car. 591, 26 S. E. 933; State v. Carpenter, 32 Wash. 254, 73 Pac. 357; State v. May, 62 W. Va. 129, 57 S. E. 366. The admissibility of the statements of the accused made upon his preliminary examination is a deduction from the modern statutory legislation making the accused a competent witness in his own behalf. If the accused were not permitted to go on the stand of his own free will and if not being a competent witness for himself he is summoned as a witness by the prosecu tion on the trial of another person it is only fair to exclude what he may say of an incriminating character because he is, against his will, compelled to tell the truth by his oath, and this is a sort of compulsion. It is quite otherwise where the accused voluntarily testifies to exculpate himself and instead of wholly accomplishing this purpose only involves himself in greater guilt. State v. Glass, 50 Wis. 218, 221, 6 N. W. 500, 36 Am. 845. 62 State v. Carroll, 85 Iowa 1, 51 N. W. 1159; Grimsinger v. State, 44 Tex. Cr. App. 1, 69 S. W. 583; Giles v. State, 43 Tex. Cr. App. 561, 67 S. W. 411; Thomas v. State, 35 Tex. Cr. App. 178, 32 S. W. 771; United States v. Kirkwood, 5 Utah 123, 13 Pac. 234. 63 State v. Clifford, 86 Iowa 550, 53 N. W. 299, 41 Am. St. 518. See note in 9 L. R. A. (N. S.) 533 64 § 133. Mode of proving confessions made at the preliminary examination.—The signature of the accused to his statement which has been committed to writing is not indispensable, unless it is required by statute. But, as it is useful as a means of identification, it should be obtained whenever possible. If he signs the writing voluntarily he waives all objections to its admission as evidence (except, perhaps, the objection that he was sworn), and this is so, though it is in a language not understood by him, if its contents were translated to him."5 The writing which purports to contain the preliminary examination of the accused must be properly identified. If the accused has not signed the writing at all, or if he has only affixed his mark thereto, it must appear to the satisfaction of the court (necessarily by parol evidence) that it was read to him and that he assented to or acquiesced in it." The record of the examination, if otherwise admissible, should be produced as the best evidence, and when produced, it is conclusive of the fact that everything material that was said or done has been accurately stated." But when an informal examination only has been had, or if the details of a regular and formal examination have not 64 67 Lambe's Case, 2 Leach C. C. 625, 629; State v. Haworth, 24 Utah 398, 68 Pac. 155. 65 Commonwealth v. Coy, 157 Mass. 200, 212, 32 N. E. 4; State v. Demareste, 41 La. Ann. 617, 6 So. 136. In a case of a confession made through an interpreter the prosecution should show, before the confession is admitted, that the interpretation is true, correct and full. It is proper to require the interpreter so to testify. State v. Abbatto, 64 N. J. L. 658, 47 Atl. 10. Harris v. State, 6 Tex. App. 97; State v. Mullins, 101 Mo. 514, 14 S. W. 625; State v. Schmidt, 136 Mo. 644, 38 S. W. 719; Angling v. State, 137 Ala. 17, 34 So. 846. Letters constituting a confession of homicide found near the bodies, written on the letterheads of the accused and signed with his name, are admissible without proof of the handwriting. State v. Soper, 148 Mo. 217, 49 S. W. 1007. As to the admission of an unsigned letter which dropped in the room of the accused, see State v. Dilley, 44 Wash. 207, 87 Pac. 133. 67 State v. Branham, 13 S. Car. 389; Wright v. State, 50 Miss. 332, 335; State v. Eaton, 3 Harr. (Del.) 554; Williams v. State, 38 Tex. Cr. App. 128, 41 S. W. 645; Bailey v. State, 26 Tex. App. 706, 9 S. W. 270. As to a presumption that a confession was committed to writing, see Wright v. State, 50 Miss. 332, 335; Underhill on Ev., §§ 36, 146, 147, 232. Robinson v. State, 87 Ind. 292, 68 293. |