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custody does not make confession inadmissible; dissenting opinion in Bram v. United States, 168 U. S. 569, 42 L. Ed. 582, 18 Sup. Ct. 197, majority distinguishing under facts.

Accused's statements may be used at trial, though before he had counsel or knew of his right thereto.

Approved in Powers v. United States, 223, U. S. 313, 56 L. Ed. 452, 32 Sup. Ct. 281, holding accused need not be warned that what he says might be used against him; State v. Washing, 36 Wash. 489, 491, 78 Pac. 1020, confession not involuntary because made before magistrate in preliminary hearing without counsel when accused is ignorant Indian.

Distinguished in Bram v. United States, 168 U. S. 541, 42 L. Ed. 573, 18 Sup. Ct. 186 (see dissenting opinion in 168 U. S. 573, 42 L. Ed. 584, 18 Sup. Ct. 198), under facts; Alkon v. United States, 163 Fed. 815, 90 C. C. A. 116, holding testimony given under subpoena in bankruptcy proceeding cannot be used in criminal prosecution.

Court may leave to jury to reject confession, if deemed involuntary, where evidence conflicts.

Approved in Roesel v. State, 62 N. J. L. 238, 41 Atl. 416, following rule; Kent v. Porto Rico, 207 U. S. 119, 52 L. Ed. 129, 28 Sup. Ct. 55, holding circumstances surrounding confession may be placed before jury; United States v. Oppenheim, 228 Fed. 231, 232, holding jury may decide whether confession made voluntarily; Lorenz v. United States, 24 App. D. C. 385, admitting statements made by conspirators; West v. United States, 20 App. D. C. 352, holding where accused denies confession was voluntary, question should be left to jury; People v. Maxfield, 146 Mich. 105, 108 N. W. 1088, and Heddendorf v. State, 85 Neb. 753, 124 N. W. 152, both holding court errs in failing to instruct jury to disregard confession if they believe it involuntary; State v. Monich, 74 N. J. L. 528, 64 Atl. 1018, holding jury cannot review court's determination as to dying declaration; State v. Doris, 51 Or. 148, 151, 16 L. R. A. (N. S.) 660, 94 Pac. 47, 49, holding jury must decide on effect of dying declaration; State v. Wells, 35 Utah, 403, 404, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631, 100 Pac. 682, 683, and State v. Armijo, 18 Ν. Μ. 269, 135 Pac. 557, both holding jury may be instructed to disregard confession if they believe it involuntary.

Distinguished in State v. Young, 67 N. J. L. 230, 51 Atl. 942, holding question is open whether after trial court on preliminary examination admitted statement of accused, it might be required to submit the question to jury.

Right of court to caution jury as to believing testimony of accused in own behalf. Note, 19 L. R. A. (N. S.) 817.

Law of evidence of blood-stains. Note, 15 Ann. Cas. 813.

Existence of similarity, in order to make comparison of properties as to their value admissible, as question for court. Note, Ann. Cas. 1913D, 583.

162 U. S. 625-650, 40 L. Ed. 1097, 16 Sup. Ct. 952, CRAIN v. UNITED STATES.

Count may refer to matter in previous count to avoid repetition. Approved in United States v. McKinley, 127 Fed. 168, reaffirming rule; United States v. New Departure Mfg. Co., 204 Fed. 115, and Benson v. United States, 27 App. D. C. 341, 342, both applying principle; Wiborg v. United States, 163 U. S. 648, 41 L. Ed. 295, 16 Sup. Ct. 1133, where judge's charge limited issue to one of several charges under Rev. Stats., § 5286; State v. Fidler, 148 Ind. 222, 47 N. E. 465, where charge covered several offenses punishable alike under same statute; United States v. Ridgway, 199 Fed. 288, Foster v. United States, 178 Fed. 171, 101 C. C. A. 485, and Bartholomew v. United States, 177 Fed. 905, 101 C. C. A. 182, all holding one count may refer to previous count for purpose of showing scheme to defraud; United States v. Howard, 132 Fed. 334, 343, caption of indictment cannot be looked to for purpose of making more certain any essential averment charging offense; Lorenz v. United States, 24 App. D. C. 363, and Hyde v. United States, 27 App. D. C. 381, both holding second count may refer to first count as to method of conspiracy; Bass v. United States, 20 App. D. C. 238, holding demurrer to count should be sustained when not shown to be within statutory period.

Indictment that one executed and forged, and caused to be executed and forged, a false affidavit, is not bad for duplicity.

Approved in Lewellen v. United States, 223 Fed. 20, 138 C. C. А. 432, holding indictment charging carrying of liquor from without Indian country and from without State of Oklahoma is duplicitous; Glass v. United States, 222 Fed. 780, 138 C. C. A. 321, holding indictment may charge defendants deposited and caused to be deposited nonmailable matter; May v. United States, 199 Fed. 60, 117 C. С. А. 420, holding indictment may charge defrauding and attempt to defraud; United States v. Norton, 188 Fed. 263, holding indictment cannot charge intent to defraud and intent to deceive in making false entries; Richardson v. United States, 181 Fed. 5, 104 С. С. А. 69, upholding indictment alleging that defendant "caused and procured false entries to be made"; Boireau v. Rhode Island Co., 169 Fed. 1016, holding complaint in action for injury may allege defects in car and roadbed; Goll v. United States, 166 Fed. 421, 92 C. C. A. 171, upholding indietment alleging that defendant "did unlawfully and knowingly sell and deliver" oleomargarine; United States v. Louisville etc. R. Co., 165 Fed. 938, 941, holding duplicity in indictment must be reached by motion to elect; United States v. Delaware, L. & W. R. Co., 152 Fed. 274, holding indictment may charge that carrier offered, granted and gave rebate; United States v. Cardish, 145 Fed. 244, under Rev. Stats., § 1024, may join in indictment for arson two counts each charging defendant with burning different building; Bridgeman v. United States, 140 Fed. 587, 72 C. C. A. 145, upholding indictment charging defendant both with making and presenting false claim against United States; Tribolet v. United States, 11 Ariz. 443, 16 L. R. A. (N. S.) 223, 95 Pac. 87, holding indictment under Sherman Act may allege unlawful "combination or conspiracy"; O'Brien v. United States, 27 App. D. C. 268, holding indictment may charge two acts both of which constitute embezzlement; Randle v. State, 105 Miss. 568, 49 L. R. A. (N. S.) 453, 62 South. 429, holding duplicity in indictment will be cured by judgment of conviction; Jimerson v. State, 93 Miss. 694, 46 South. 950, holding charging "assault and battery in attempt to kill" and "assault and battery with attempt to kill" is not duplicitous; Flohr v. Territory, 14 Okl. 486, 78 Pac. 568, upholding indictment charging grand larceny alleging property to have been taken by fraud and stealth without setting out fraudulent acts; Griffin v. State, 109 Tenn. 27, 70 S. W. 63, sustaining indictment for taking female for purposes of "concubinage and prostitution" under statute against taking for such purposes in the disjunctive; State v. Adams, 41 Wash. 555, 83 Pac. 1109, upholding indictment charging defendant with forcibly and against her will, ravishing female child under eighteen years.

Due process requires that accused plead or be ordered to, or plea of not guilty entered, before trial.

Approved in Burroughs v. State, 94 Neb. 522, Ann. Cas. 1915C, 1070, 143 N. W. 451, applying rule; Beck v. United States, 145 Fed. 625, 76 C. C. A. 417, defendant pleading to but one count of indictment can be tried on that issue only; Howard v. State, 165 Ala. 28, 50 South. 958, holding indictment need not be read for second time at beginning of trial; Storm v. Territory, 12 Ariz. 111, 99 Pac. 276, holding defendant not entitled to jury trial on plea of former jeopardy; Johnson v. United States, 38 App. D. C. 349, 350, holding recital in record that "defendant, being arraigned, pleads thereto," is sufficient; State v. Chambers, 9 Idaho, 678, 75 Pac. 276, under Rev. Stats. 1887, § 7855, in trial for felony, failure of some officer of court to read indictment to accused and state his plea to jury, is reversible error; State v. DeWolfe, 29 Mont. 419, 74 Pac. 1085, where copy of information given defendant differs from one on which he was about to be tried, denial of statutory time to plead after true copy furnished is reversible error; United States v. Aurandt, 15 N. M. 296, 27 L. R. A. (N. S.) 1181, 107 Pac. 1065, holding where no plea made court should begin trial anew; Territory v. Herrera, 11 N. M. 143, 66 Pac. 525, after verdict, failure to ask defendant if he has anything to say why judgment should not be passed invalidates judgment; Harris v. United States, 4 Okl. Cr. 319, Ann. Cas. 1912B, 810, 31 L. R. A. (N. S.) 820 (111 Pac. 983), holding error to go to trial without arraignment; State v. Drown, 85 Vt. 237, 81 Atl. 642, holding conviction void where no plea entered; Hack v. State, 141 Wis. 349, 45 L. R. A. (N. S.) 664, 124 N. W. 493, holding State cannot pass law providing for trial without arraignment or plea; Dansby v. United States, 2 Ind. Ter. 461, 51 S. W. 1085, and Browning v. State, 54 Neb. 204, 74 N. W. 631, conviction without plea is invalid.

Distinguished in State v. Heft, 155 Iowa, 26, 134 N. W. 953, holding failure to require accused to plead is not ground for motion in arrest of judgment; State v. Seals, 135 La. 605, 65 South. 756, holding filing of motion to quash is not withdrawal of plea; State v. Rasberry, 113 La. 654, 37 South. 545, where defendant, present in open court with counsel, waives arraignment, he cannot later set up failure to read indictment as denial of due process.

Necessity of arraignment in criminal case. Note, 12 Ann. Cas. 704. Record showing that jury tried "the issue joined," does not show that defendant pleaded.

Approved in Territory v. Gonzales, 13 N. M. 97, 79 Pac. 706, holding plea of not guilty, withdrawn for purpose of filing of demurrer is not reinstated by overruling of demurrer; State v. Walton, 51 Or. 576, 91 Pac. 496, holding defendant cannot waive arraignment; State v. Walton, 50 Or. 152, 155, 13 L. R. A. (N. S.) 811, 91 Pac. 493, 494, holding after overruling of demurrer to indictment defendant should be given time to plead; Shelp v. United States, 81 Fed. 701, 26 C. С. А. 570, applying rule in misdemeanor case; Browning v. State, 54 Neb. 206, 74 N. W. 632, arraignment and plea are essential to conviction.

Distinguished in State v. O'Kelley, 258 Mo. 353, 357, 361, 363, 370, 52 L. R. A. (N. S.) 1063, 167 S. W. 982, 984, 985, 988, holding failure of record to show arraignment and plea is not fatal to conviction; Wood v. State, 4 Okl. Cr. 447, 45 L. R. A. (N. S.) 673, 112 Pac. 15, holding where defendant goes to trial court will presume that he was arraigned.

Rule that record must show accused's arraignment and plea is not merely formal within Revised Statutes, section 1025.

Approved in Johnson v. United States, 225 U. S. 409, 56 L. Ed. 1143, 32 Sup. Ct. 748, holding statute is satisfied where record shows presence of all parties and that "defendant being arraigned upon indictment, pleads thereto not guilty."

Distinguished in Garland v. Washington, 232 U. S. 645, 646, 647, 58 L. Ed. 775, 34 Sup. Ct. 456, holding accused need not be required to plead to second and amended information.

Record of conviction for infamous crime must show taking of every step at trial required by due process.

Approved in Powers v. United States, 223 U. S. 312, 56 L. Ed. 452, 32 Sup. Ct. 281, holding indictment must show grand jury impaneled, sworn and charged; Freeman v. United States, 227 Fed. 744, holding judge cannot be substituted during progress of trial; Renigar v. United States, 172 Fed. 652, 19 Ann. Cas. 1117, 26 L. R. A. (N. S.) 683, holding indictment must be publicly presented in open court; United States v. Wells, 163 Fed. 328, holding prosecutor cannot be present during deliberations of grand jury; United States v. McKnight, 112 Fed. 983, holding arraignment and plea not necessary on new trial where record shows a prior arraignment and plea; Lanckton v. United States, 18 App. D. C. 363, holding regularity of proceedings is presumed; Dansby v. United States, 2 Ind. Ter. 461, 51 S. W. 1085, holding judgment should be arrested where defendant not arraigned; Vickers v. United States, 1 Okl. Cr. 459, 98 Pac. 470, holding in prosecution for rape by one in Indian Territory, evidence must affirmatively show that defendant is not an Indian before question of death penalty can be submitted to jury; State v. Goodager, 56 Or. 205, 108 Pac. 185, holding prosecution on appeal may admit state of facts not shown by record; State v. Osborne, 54 Or. 292, 200 Ann. Cas. 627, 103 Pac. 64, holding in prosecution for rape court may exclude public; dissenting opinion in Greene v. United States, 154 Fed. 414, 85 С. С. А. 251, majority holding in prosecution against public official for embezzlement false entries made in journals by clerks were admissible against him; dissenting opinion in State v. Walton, 53 Or. 571, 573, 102 Pac. 174, 175, majority holding testimony given at former trial is admissible against accused.

Distinguished in Frank v. State, 142 Ga. 751, L. R. A. 1915D, 817, 83 S. E. 649, holding defendant may waive his presence at rendering of verdict; Gaines v. United States, 1 Ind. Ter. 302, 37 S. W. 100, holding defendant may waive arraignment and plea; Commonwealth Crowley, 168 Mass. 223, 46 N. E. 626, verdict including lesser offense well charged is not void.

v.

Miscellaneous. Cited in McKnight v. United States, 97 Fed. 216, 38 С. С. А. 115, holding where indictment charges several intents, any one of which will be sufficient, proof of any one supports indictment; dissenting opinion in Ex parte Jerman, 57 Or. 402, Ann. Cas. 1913A, 149, 112 Рас. 421, majority holding Supreme Court may require accused to apply for habeas corpus in Circuit Court.

162 U. S. 650-663, 40 L. Ed. 1105, 16 Sup. Ct. 934, WESTERN UNION TEL. CO. v. JAMES.

State law requiring prompt delivery of telegrams is valid police regulation, even as to messages from other States.

Approved in Western Union Tel. Co. v. Powell, 94 Va. 273, 26 S. E. 828, and Western Union Tel. Co. v. Goddin, 94 Va. 515, 27 S. E. 429, both following rule; New York etc. R. R. Co. v. New York, 165 U. S.

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