was not negligent in inquiring after the knowledge of their truth.1

§ 85. Admissions and communications sent and received by telephone.-A communication sent or received over a telephone is a message in its legal meaning and relations,2 the idea conveyed by the word "telephone" being nearly equivalent to that involved in the word "telegram ”— i. e., information received from a distance. The message thus sent may constitute an oral admission under circumstances which are analogous to those rendering admissible a party's declarations against him. So a conversation had over a telephone with a person who is shown to have such an instrument in his place of residence or business is competent as his admission, and it may be stated by the hearer without the latter identifying the party at the other end of the wire. Usually, however, a witness who testifies to an admission or declaration heard over a telephone should identify the party speaking to him. This he must do ex necessitate rei by his recognition of the voice of the speaker, and the admissibility of his testimony will depend on his previous acquaintance, however slight, with the party's voice." If he has heard him speak but once before, his evidence of identity will not be thereby rendered incompetent, though his consequent lack of familiarity with the voice may be brought out to affect the value of his evidence. of identification. The identity of the speaker may of course be shown by other competent evidence than that of the witness who heard the statement.' When for any reason direct communication between parties through a telephone is im

possible, so that either one with the assent of the other re

1 Martin v. Martin, 1 Misc. Rep. 181; In re Turfler, id. 58; Young v. Board of Com'rs of Mahoning, 51 Fed. Rep. 585; Northern Mich. Lumber Co. v. Lyon (Mich., 1893), 55 N. W. Rep. 438; Tibble v. Anderson, 63 Ga. 41; Shaply v. Abbott, 42 N. Y. 443; Rosebrough v. Ansley, 35 Ohio St. 107; Brightman v. Hix, 108 Mass. 246.

2 Attorney-General v. Edison Telephone Co., 43 L. T. 703, cited in Anderson's Law Dict., p. 1013.

Reed v. Burlington, 73 Iowa, 166;

quests an operator at an intermediate station to speak for him, the operator becomes the agent of the speaker;1 and as each party is usually in turn speaker and receiver, the operator stands in the place of an interpreter, and statements made by him may be regarded as the admissions of either party. Such statements are admissible under the principle which lets in admissions by reference.2

483.

'Sullivan v. Kuykendall, 83 Ky.

2 Oskamp v. Gadsden (Neb.), 52 N. W. Rep. 718. See ante, § 77.

$ 88. Definition and classification.- Confessions are admissions made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime,' and they may be either judicial or extra-judicial. The former, as the term indicates, are those which are made either at the preliminary examination or at the trial of the accused. The latter are made out of court, and include not only explicit or express verbal or written admissions of guilt, but all admissions from which the guilt of the accused may be inferred.'

Confessions may thus be divided into express confessions and those which are implied from the actions of the accused, such as his resistance or avoidance of arrest, his attempts to escape from custody, and his silence when accused of crime under circumstances where he might be naturally expected to speak. For silence to be equivalent to confession it must be shown that the accused heard and understood the specific

1Stephen's Dig., § 421.

21 Greenl. on Evid., § 216.

3 State v. Taylor (Mo., 1893), 22 S. W. Rep. 806; Jamison v. People (Ill., 1893), 34 N. E. Rep. 486; State v. Moncla, 39 La. Ann. 368; People v. Fine, 77 Cal. 147; Carden v. State (Ala., 1888), 4 S. Rep. 823; Com. v. Brigham, 147 Mass. 414.

4 Williams v. State, 24 Tex. App. 17, 32; 4 S. W. Rep. 64; People v. Ogle, 104 N. Y. 511; Ryan v. State, 83 Wis. 468; Elmore v. State (Ala., 1893), 13 S. Rep. 427.

5 Com. v. Trefethen (Mass., 1893), 31 N. E. Rep. 961; Brown v. State (Tex., 1893), 22 S. W. Rep. 596; State v. Reed, 62 Me. 129.

5

charge which was made against him,' and that he heard it under circumstances calling upon him to deny it. The pris oner may show that his silence or suspicious actions were caused by threats, or that the accusations were made in judicial proceedings; as, for example, at a coroner's inquest. A statement implicating the accused, made by some third person to whom he has referred, where the information which was given is responsive to the inquiry made, may be admitted as his confession, if he acquiesces in it.

§ 88a. To be regarded with caution.- Writers on evidence nave pointed out the necessity for caution in the reception of confessions. Among the facts which furnish a basis for the employment of a careful scrutiny of this kind of evidence are the peculiar circumstances in which the accused finds himself— that is, embarrassed by a present incarceration and threatened with future imprisonment or death. The zeal of acute and experienced police officials accustomed to dealing with criminals and apt to regard the accused as guilty until his innocent shall be made to appear may often lead to a wilful or even an unconscious suppression of facts which indicate his innocence, while exaggerating others which point to his guilt."

Numerous cases of false confessions are mentioned in the books which are calculated to incite suspicion that the accused may be endeavoring to secure some object not apparent at first glance. He may be seeking to divert suspicion from some other suspected person, knowing well that on his own trial he will be able to establish his innocence.10 Such cases are admitted, however, to be exceptional, and, while not without

1 Brown v. Com., 86 Va. 935; Sauls v. State (Tex., 1892), 17 S. W. Rep. 1066; Robertson v. State, 17 id. 1068; 30 Tex. App. 496; Brookser v. State, 26 Tex. App. 593.

2 Felder v. State, 5 S. W. Rep. 145; State v. Carroll, 30 S. C. 85; Campbell v. State, 55 Ala. 80; Drumright v. State, 29 Ga. 430; State v. Smith, 35 La. Ann. 457; Kelley v. State, 55 N. Y. 565. See $$ 78, 79, 82-84.

Golden v. State, 25 Ga. 527; State v. Flanagan, 25 Ark. 92.

4State v. Mullins, 101 Mo. 514.

5 The fact that the accused had implements in his possession with which to attempt an escape may be shown against him. State v. Duncan (Mo., 1893), 22 S. W. Rep. 699. 6 United States v. Gardner, 42 Fed. Rep. 832. Cf. People v. Powell, 87 Cal. 348.

71 Greenl. on Evid., § 219.

8 Brister v. State, 26 Ala. 107. 9 See 1 Greenl. on Evid., § 217. 10 Wills on Circumstantial Evidence, p. 88; Phil. & Am. on Evid., 419; Chitty, Crim. Law, vol. 1, p. 85.

weight in estimating the true nature of this sort of evidence, they should not be invoked without discrimination to impeach the general character of a confession which was made under conditions which properly render it admissible.1 So the infirmities incident to all evidence which consists of the reception of language used by others in the presence and hearing of the witness and which have been adverted to in another place 2 must be taken into consideration.

§ 89. Voluntary character of confessions.- Whether a confession is judicial or extra-judicial it must be shown that it was wholly free and voluntary. And a proper foundation should first be laid for its reception by asking the witness whether the prisoner had been informed that it would be advantageous for him to confess, or whether any language had been used towards him which, by filling his mind with hope and fear, would render his confession forced or involuntary. If such a course has been pursued by some third person, the confession will be rejected. This preliminary question of the voluntary character of the confession bearing upon its admissibility as evidence is a preliminary question for the judge,

1 A confession is admissible though made to free another from arrest. People v. Smalling, 94 Cal. 112. 2 See ante, §§ 80-82.

3 Gentry v. State, 5 S. W. Rep. 660; 24 Tex. App. 80; Collins v. State, 24 Tex. App. 141; Ross v. State, 67 Md. 286; People v. Taylor, 93 Mich. 638; Com. v. Morey, 1 Gray (Mass.), 461; Spears v. Ohio, 20 Ohio St. 583. This rule does not apply to admissions of collateral facts not involving criminal intent. State v. Knowles, 48 Iowa, 593; People v. Barton, 49 Cal. 632. Contra, Marshall v. State, 5 Tex. App. 273; Quinland v. State, 16 S. W. Rep. 258; 29 Tex. App. 401. As to the voluntary character of confessions, see Stafford v. State, 55 Ga. 592; State v. Sopher, 70 Iowa, 494; Ruberts v. Com. (Ky.), 7 S. W. Rep. 401; Alfred v. State, 37 Miss. 296; People v. Deacons, 109 N. Y. 374; State v. Dildy, 72 N. C. 325; State v.

Chisenhall, 11 S. E. Rep. 518; 106 N. C. 676; Johnson v. State, 76 Ga. 76. 41 Greenl. on Evid., § 219.

5 People v. Taylor, 93 Mich. 638; Cook v. State (Tex., 1893), 22 S. W. Rep. 23; State v. Chambers, 45 La. Ann. 36; Smith v. State, 88 Ga. 627; Craig v. State, 18 S. W. Rep. 297; State v. Carson, 36 S. C. 524; Green v. State, 88 Ga. 516; State v. Carroll, 30 S. C. 85; State v. Kinder, 96 Mo. 548; People v. Fox, 3 N. Y. S. 359: State v. Grant, 22 Me. 171; Fife v. Com., 29 Pa. St. 329. See post, $$ 90, 92.

6 Com. v. Taylor, 5 Cush. (Mass.) 606; People v. Fox, 24 N. E. Rep. 923; aff'g 3 N. Y. S. 359; Chabbock's Case, 1 Mass. 144; Thomas v. State, 84 Ga. 618; State v. Holden, 44 N. W. Rep. 123; 42 Minn. 350; State v. Harmon (Del.), 3 Harr. 567; People v. Sweetland, 77 Mich. 53; People v. Howes, 81 Mich. 396; People v. Barker, 60