process and the manner of its application depend largely upon the character of the official who administers it and upon that of the accused to whom it is administered.

Where, on the one hand, the police official is sufficiently hardened and brutalized by his past experience and the accused is a determined and courageous person, it is likely to continue for some lengthy period without results, but where the accused is weak and nervous or feeble in mind or body, the carrying out of this method of modern torture will generally result in producing statements in answer to leading questions which can readily be twisted into a confession.

The worthlessness as evidence of such statements needs but to be stated in order to be appreciated. Their probative force, or rather lack of force, is well recognized by all who have had any experience of human nature. They carry no weight, usually, in the minds of the average juryman, but, in all probability, police officials will continue to procure so-called confessions by this method until the end of time.

As matter of law, the fact that confessions are obtained by questions which assume the guilt of the accused, does not exclude them if they are in all respects voluntary confessions and provided always that in putting the question which assumes that the prisoner is guilty, no unfair advantage amounting to compulsion or duress was exercised over him.15

A voluntary confession is not inadmissible because the person to whom it was made promised under oath that he would not reveal it, or it was procured by the use of falsehood," as, for ex

16

15 Hardy v. United States, 3 App. D. C. 35; People v. Wentz, 37 N. Y. 303; People v. McGloin, 91 N. Y. 241, 246; State v. Turner, 122 La. 371, 47 So. 685; State v. Berry, 50 La. Ann. 1309, 24 So. 329; Birkenfeld v. State, 104 Md. 253, 65 Atl. 1; State v. Banusik (N. J.), 64 Atl. 994; State v. Blodgett, 50 Ore. 329, 92 Pac. 820; People v. Siemsen, 153 Cal. 387, 95 Pac. 863; Cox v. People, 80 N. Y. 500; McClain v. Commonwealth, 110 Pa. 263, 269, I Atl. 45: Murphy v. People, 63 N. Y. 590, 597;

State v. Brinte, 4 Pen. (Del.) 551, 58
Atl. 258; State v. Barrington, 198
Mo. 23, 95 S. W. 235.

16 State v. Darnell, I Houst. (Del.) 321.

10 State v. Darnell, 1 Houst. (Del.) 321; Commonwealth V. Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491; Cox v. People, 80 N. Y. 500, 515.

17 Burton v. State, 107 Ala. 108, 18 So. 284: Sanders v. State, 113 Ga. 267, 38 S. E. 841; People v. Barker, 60 Mich. 277, 27 N. W. 539, 1 Am. St. 501n; State v. Rush, 95 Mo. 199, 8

ample, by telling the accused that his accomplice had made a confession implicating the accused.

Nor should an admissible confession be rejected because it was the result of some benefit having no connection with the crime confessed.18 Thus, a confession which has been induced by a promise that the prisoner may see his wife, who was confined in another cell,1° or have his shackles removed, and permit him to associate with other prisoners,20 or be permitted to take exercise, or be released from a rigorous confinement, or to protect him from others alleged to be implicated in the crime,21 should be received.22

§ 141. Confessions made by signs or gestures.-Under this head we may group direct admissions of guilt in the form of affirmative gestures, nods or signs made in response to leading questions or to questions which assume the guilt of the person addressed. Can a witness who saw the incriminating gesture testify that it was made, the question which called it out being also proved, in a case where he would be precluded from testifying to an express confession because the circumstances rendered it involuntary?

An affirmative nod in response to a direct accusation of crime is no less a confession than an oral statement. If the accusation. is coupled with a threat or a promise, evidence of the nod or gesture should be rejected as an attempt to accomplish by indirection what cannot be done directly. Actions speak louder than

S. W. 221; Heldt v. State, 20 Neb. 492, 30 N. W. 626, 57 Am. 835n; Commonwealth v. Goodwin, 186 Pa. 218, 40 Atl. 412, 65 Am. St. 852; Commonwealth v. Wilson, 186 Pa. St. 1, 40 Atl. 283.

28 Stone v. State, 105 Ala. 60, 17 So. 114; Price v. State, 114 Ga. 815, 40 S. E. 1015; State v. Fortner, 43 Iowa 494; State v. Hopkirk, 84 Mo. 278; State v. Wentworth, 37 N. H. 196; Cox v. People, 80 N. Y. 500.

Rex. v. Lloyd, 6 C. & P. 393. State v. Tatro, 50 Vt. 483; State v. Cruse, 74 N. Car. 491.

21 Hunt v. State, 135 Ala. 1, 33 So. 329.

22 "On the whole the authorities seem to be in favor of the proposition that the inducement must be of a temporal nature. Whether or no it must have reference to the charge, has scarcely been fully discussed. It is certainly possible to conceive cases in which a much stronger inducement might be held out to a prisoner than one having reference to an escape from a charge not involving any very serious consequences." Roscoe Crim. Ev., 46.

words. Expressive gestures often manifest more clearly the emotion of the mind than the most forcible and vehement language. A direct confession by an act is therefore inadmissible whenever the spoken or written word would be excluded. 23

§ 142. Confessions of treason.-Because of the statutory requirement under which the testimony of two witnesses to an overt act was necessary to convict one of the crime of treason, it was at one time doubted whether an extra-judicial confession was admissible against one on trial for the commission of that crime." It is now the law that while no one can be convicted of treason upon his confession not made in open court, that is, by a plea of guilty to the indictment, his extra-judicial confession may be received against him. The making of the confession and the confession itself must, to be admissible, be proved by two witnesses.25

§ 143. Confessions made by young children.-Where a young child possesses sufficient mental capacity, or is of such an age as will render him responsible for the criminal consequences of his actions, his confession is admissible, under the same circumstances which will admit the confession of an adult or mature person.

It is enough to show that he is reasonably intelligent and old enough to understand the character and effect of what he says and to comprehend his situation generally.2

27

And a child, under the age of fourteen years, may, if clearly and fully shown to be able to distinguish between right and wrong as respects the particular circumstances of the case under con

1 East P. C., 131-133, 1 Burr's Trial 196.

26 Commonwealth V. Smith, 119 Mass. 305, 311; Earp v. State, 55 Ga. 136; Stage's Case, 5 City Hall Rec. (N. Y.) 177.

Birkenfeld v. State, 104 Md. 253, 65 Atl. 1; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404; Grayson v. State, 40 Tex. Cr. App. 573, 51 S. W. 246; Rex v. Thornton, I Moody C. C. 27.

28

sideration, be convicted of murder or other felony upon his extrajudicial confession, if the corpus delicti be otherwise proved. 2 But a confession by a stupid negro boy twelve years of age made to white men by whom he was privately examined is inadmissible where he was without friends or counsel to advise him.29

§ 144. Judicial confessions: plea of guilty.-As will be subsequently pointed out, the jury may convict the accused upon his extra-judicial confession, only in case they shall believe that it is corroborated by independent proof of the corpus delicti. But a judicial confession in the shape of a plea of guilty by the accused, he having sufficient capacity to understand the nature and meaning of his act, made in the hearing of the court and the jury, is equivalent to a conviction and is conclusive on the jury. The court must pronounce judgment and sentence as in a case of a verdict of guilty rendered by the jury.30

31

The accused has an absolute right to plead guilty and, in the absence of a statute to the contrary, the court is bound to accept the plea even in capital cases. In some states, there are statutes which provide that no plea of guilty shall be accepted in capital cases and such a statute is constitutional.32

Where no such statute prevails, the prisoner may, if sane, be convicted at once and sentenced to death or imprisonment. 33 The judge may in his discretion permit a plea of guilty to be with

"Martin v. State, 90 Ala. 602, 8 So. 858, 861, 24 Am. St. 844; Rex v. Thornton, I Moody C. C. 27; Commonwealth v. Smith, 119 Mass. 305, 311; Bartley v. People, 156 Ill. 234, 40 N. E. 831; Commonwealth v. Preece, 140 Mass. 276, 5 N. E. 494. But ef. Ford v. State, 75 Miss. 101, 21 So. 524. "Owsley v. Commonwealth, 125 Ky. 384, 101 S. W. 366, 31 Ky. L. 5; Ford v. State, 75 Miss. 101, 21 So.

524

State v. Branner, 149 N. Car. 559, 63 S. E. 169; Green v. Commonwealth, 12 Allen (Mass.) 155; People v. Luby, 99 Mich. 89, 57 N. W.

18-UNDERHILL CRIM. EV.

34

drawn at any time before judgment, and a plea of not guilty to be substituted in its place."

35

In order that the plea of guilty may be accepted, and a judgment and sentence pronounced thereupon, the plea must be entirely voluntary and given under circumstances which would permit the introduction in evidence of a confession made out of court. It must be shown to have been uninfluenced by fear or by hope. It must not be the result of misrepresentation or overpersuasion; it must also be shown not to have been the outcome of ignorance or of a misconception of the rights of the accused.

The burden of proof is on the state to satisfy the court that the plea of guilty was voluntary and that the accused understood the nature of the plea. Ordinarily, this will be presumed from the absence of any circumstances showing compulsion, but the matter is regulated by statutes in some states. In Michigan, it is provided where a defendant pleads guilty, that the court, before pronouncing sentence, must investigate and satisfy itself that the plea was made with a full knowledge of the consequences and without undue influence.37

If the prisoner had, and acted under, proper legal advice, the discretion of the court is not abused if the judge shall refuse to allow a plea of guilty to be withdrawn after sentence.38

If, however, the refusal to permit the plea of guilty to be withdrawn results in gross and manifest injustice to the prisoner, as would be the case where he, by mistake, pleads guilty to the wrong indictment, or, being of foreign birth and training, he was densely ignorant of the language and of the judicial institutions

34

39

'Reg. v. Sell, 9 C. & P. 346; Krolage v. People, 224 Ill. 456, 79 N. E. 570; State v. Hortman, 122 Iowa 104, 97 N. W. 981; Rex v. Plummer, (1902) 2 K. B. 339, 71 Law J. K. B. 805, 86 Law T. 836, 51 Wkly. Rep. 137, 66 J. P. 647.

State, 2 Coldw. (Tenn.) 212, 88 Am. Dec. 593; O'Brien v. State (Tex.), 35 S. W. 666.

37

People v. Lepper, 51 Mich. 196, 16 N. W. 377; People v. Lewis, 51 Mich. 172, 16 N. W. 326.

38 Clark v. State, 58 N. J. L. 383, 34 Atl. 3: People v. Lennox, 67 Cal. 113, 114, 7 Pac. 260; Commonwealth v. Hagarman, 10 Allen (Mass.) 401; United States v. Bayaud, 23 Fed. 721; Krolage v. People, 224 Ill. 456, 79 N. E. 570.

39 Davis v. State, 20 Ga. 674, 676.