is of use as a means of identification, it should be procured when possible. If he signs it he makes its language his own and waives all objection to its reception as evidence;1 and this is so though the writing is in a language not understood by the accused, provided its contents have been translated to him.2 The necessity that the accused should be examined without being sworn is well illustrated where the prisoner has been a witness at a coroner's inquest into the crime of which he stands charged. If the prisoner was a witness at the coroner's inquest, and if at that time he was not under arrest and not charged with the crime, his sworn testimony as a witness may be used against him upon his trial for the same offense, even though at the date of giving his testimony at the inquest he may have been strongly suspected of committing the crime.' On the contrary, where he is under arrest when he testifies at the inquest, he stands in the position of one accused of crime and cannot be compelled to testify against himself, and is entitled to the same rights and warning, so far as his sworn statement is concerned, as is a prisoner on a preliminary examination.*

The examination to be admissible must be identified. If the accused has signed with his mark alone, or if his signature has not been obtained, it must be shown by parol that the statement was read to him and that he assented thereto or acquiesced in it. One of the principal purposes of the preliminary examination being to preserve the evidence against the prisoner, the minutes of the examination and the statements of the witnesses and of the prisoner, when committed to writing, are usually signed by the magistrate and transmitted to the 1 Com. v. Coy (Mass., 1893), 32 N. 514. Cf. State v. Gilman, 51 Me. 306; E. Rep. 4. Kirby v. State, 23 Tex. App. 13;

2 State v. Demareste, 41 La. Ann. Lovett v. State,, 60 Ga. 257; State v. 617. Young, 1 Winst. (N. C.) L., No. 1, 126; 3 State v. Senn (S. C., 1890), 11 S. E. State v. Zellers, 7 N. J. L. 220; SnyRep. 292. der v. State, 59 Ind. 109), his statement is admissible against him.

Hendrickson v. People, 10 N. Y. 13; Teachout v. People, 41 N. Y. 8; People v. Mondon, 103 N. Y. 214. See post, § 345a. But where he appears voluntarily and is properly cautioned (State v. Leuth, 5 Ohio Cir. Ct. R. 94; State v. Mullins, 101 Mo.

5 Harris v. State, 6 Tex. App. 97; State v. Mullins, 101 Mo. 514. Cf. Steagels v. State, 22 Tex. App. 464; State v. Miller, 35 Kan. 328; State v. Dufour, 31 La. Ann. 804.

district attorney or other officials charged with the duty of prosecuting offenders. In accordance with the presumption that an official has properly performed his duty,' the statement as thus written is conclusive of the fact that everything material that was said or done has been accurately stated, and parol evidence is not admissible to show the contrary.?

When the examination has not been committed to writing, or if the written examination is inadmissible because of a lack of jurisdiction apparent on its face, or for any other substantial reason, parol evidence of what the prisoner voluntarily stated upon his examination will be received.3 So parol evidence of a confession made extra-judicially is never rendered inadmissible by the fact that on his judicial examination or by the prisoner himself his confession has been taken down in writing. The fact that the prisoner desires to waive the preliminary examination will not, if he has been properly cautioned, render his statements inadmissible."

§ 93. Extra-judicial confessions must be corroborated.-A naked confession is one uncorroborated by independent proof of the corpus delicti; and the rule is that while a conviction may be had upon such a confession if judicial, as, for example, by a plea of guilty in open court, yet in the case of extra-judicial confessions the corpus delicti must be proved by evidence aliunde before a conviction will be warranted."

1 See post, § 231.

2 People v. Hinchman, 75 Mich. 587; Rex v. Weller, 2 Car. & K. 223; Hill v. State, 64 Miss. 431; 1 S. Rep. 494; 1 Greenl. on Evid., § 230. See post, § 205 et seq.

3 Jeans v. Wheedon, 2 M. & Rob. 484; State v. Vincent, 1 Houst. (Del.) 11; State v. Parrish, Busb. Law, 239. Parol evidence of the prisoner's statement while undergoing examination is not admissible if the magistrate returns that the prisoner refused to speak. Rex v. Walter, 7 C. & P. 267.

4 State v. Head (S. C., 1893), 16 S. E. Rep. 892; Rowland v. Ashby, Ry. & M. 231; Roscoe, Crim. Evid., 45; Rex v. Spilsbury, 7 C. & P. 188; State v. Leuth, 5 Ohio Cir. Ct. Rep. 94.

5 Shaw v. State (Tex., 1893), 22 S. W. Rep. 588.

61 Greenl. on Evid., § 217.

7 Martin v. State (Ala., 1890), 8 S. Rep. 858 (confession of child under fourteen); Mullins v.Com. (Ky., 1893), 20 S. W. Rep. 1035; Westbrook v. State (Ga., 1893), 16 S. E. Rep. 100: United States v. Boese, 46 Fed. Rep. 917; Wigginton v. Com., 17 S. W. Rep. 634; Willard v. State, 27 Tex. App. 386; Patterson v. Com., 86 Ky. 313; Johnson v. State, 59 Ala. 37; Priest v. State, 10 Neb. 393; People v. Hennessy, 15 Wend. 147; State v. Keeler, 28 Iowa, 551; Osborn V. Com. (Ky., 1893), 20 S. W. Rep. 223; Bergen v. People, 17 Ill. 426; Ruloff v. People, 18 N. Y. 179. Cf. Com. v.

In testifying to extra-judicial confessions it is absolutely essential that the language of the accused should be given in its entirety. To permit the introduction of fragmentary remarks, admitting those which indicate the prisoner's guilt and suppressing others which by limiting or modifying the former may establish his innocence, is inconsistent with principles of justice and humanity. The whole of what the prisoner said to the witness must be put in evidence and its sufficiency and weight are for the jury, the prosecuting official being permitted to contradict or impeach that portion which may be favorable to the accused, and the confession, so far as it is either favorable or against the prisoner, may be altogether rejected by the jury in case it is not believed by them."

If a confession is complete as to incriminating facts it will not be excluded because the accused was interrupted and prevented from stating exculpatory facts. The credit to be given to the confession depends wholly upon the circumstances of each case. A witness will not be permitted to testify that the prisoner confessed to him that he had committed a crime which has no connection with the offense for which he is on trial.

§ 94. Conclusive character of judicial confessions. The guilt of the accused may or may not be inferred by the jury from evidence that the accused made an extra-judicial confes

Sanborn, 116 Mass. 61; Brown v. State, 32 Miss. 433; State v. Leuth, 5 Ohio Cir. Ct. Rep. 94. Where the corpus delicti on an indictment for passing counterfeit money is shown by proof that the counterfeit was passed as genuine, the confession of the accused that he passed the note is corroborated. United States v. Marcus, 53 Fed. Rep. 784.

1 Berry v. Com., 10 Bush (Ky.), 15; Cable v. Com. (Ky., 1893), 20 S. W. Rep. 220; Pace v. Com. (Tex., 1893), 20 S. W. Rep. 762; Com. v. Goddard, 80 Mass. 402; Real v. People, 42 N. Y. 270; State v. Mack, 48 Wis. 271.

2 Taylor v. Com,, 18 Atl. Rep. 588; People v. Irwin, 77 Cal. 494; Dodson

v. State, 86 Ala. 60; State v. Feltes, 51 Iowa, 495. See ante, § 80.

3 State v. Mahan, 32 Vt. 241; People v. Taylor, 93 Mich. 638; Respublica v. McCarthy, 2 Dall. 86, 88; People v. Cassidy, 133 N. Y. 612; Com. v. Brown, 149 Mass. 35; Long v. State, 86 Ala. 36; State v. West, 1 Houst. (Del.) 371; Griswold v. State, 24 Wis. 144; Furst v. State, 47 N. W. Rep. 1116; 31 Neb. 403; Johnson v. State, 86 Ga. 90. See, also, as to admissions, § 81.

4 Levison v. State, 54 Ala. 520.

5 Coon v. State, 13 Sm. & M. 246. 6 Com. v. Campbell, 155 Mass. 537; 30 N. E. Rep. 72; Youree v. Territory (Ariz., 1892), 29 Pac. Rep. 894; Reg. v. Butler, 2 Car. & Kir. 221. Contra, State v. Underwood, 75 Mo. 230.

sion, according as they believe it is corroborated as to the corpus delicti. But a judicial confession voluntarily made in the hearing of the jury by the prisoner is, if he is of sound mind, conclusive on them. On such a confession, furnishing direct and original evidence of guilt, the prisoner may be convicted and sentenced to death or a term of imprisonment.' When, however, the confession of the accused is elicited in the preliminary examination under the statutes 1 and 2 P. & M., ch. 13; 7 Geo. 4, ch. 64, and similar statutory provisions existing in the United States, the confession of the prisoner committed to writing must be submitted with other evidence to the trial jury to be weighed by them.2

§ 95. Persons offering inducements. A conclusive presumption that a confession is involuntary is created by the circumstance that the person who has induced the accused to confess by employing threats or promises was so related to him that he could exercise authority or power over him.3 Thus, where the inducements proceed from the prosecuting witness, from the district attorney,5 from members of the coroner's jury, from a police official or jailor in whose custody the accused is, or from a magistrate, the confession will be rejected."

Whether a confession procured by a threat or promise by one having no power over the prisoner, and consequently unable to fulfill the threat or promise, creates a conclusive presumption of the existence of duress, the authorities are divided.10 So it has been held that a threat made by any one would create a conclusive presumption that the confession was not free

and voluntary. The contrary doctrine is maintained in some of the cases, which support the proposition that a threat or a promise must be made by one actually in authority.

3

Upon general principles, the distinction made where threats are made by private persons would seem without foundation, inasmuch as the question, was the will of accused actually subjugated, is one of fact, to be decided on all the circumstances of each particular case. But the fact that the person using threats did not possess the means of carrying them into execution would doubtless, if known to the prisoner, detract from or wholly nullify the effect calculated to be produced upon his mind."

§ 96. Confessions of persons other than defendant.— The incriminating declarations of third persons that they committed the crime with which the prisoner is charged are merely hearsay unless such persons are produced as witnesses." But where the prosecution alleges that the third person was an accomplice, his confession that he was the principal is admissible upon the trial of the latter."

8

97. Confessions of conspirators.-The same principle that obtains in cases of joint civil liability is applicable where two or more persons are jointly indicted for the same crime." The existence of the conspiracy or combination being satisfactorily established, the confession or incriminating declarations or acts of any member made in the prosecution of the enterprise are admissible against all. When, however, the common undertaking is consummated or abandoned, the com4 Com. v. Gorey, 1 Gray (Mass.), 463.

1 Rex v. Dunn, 4 C. & P. 543; Rex v. Slaughter, 8 id. 734; Guild's Case, 5 Halst. 163; Knapp Case, 9 Pick. 496, 500, cited in 1 Greenl. on Evid., $223.

2 Early v. Com., 86 Va. 921; Rex v. Hardwick, 6 Pet. Abr. 84; Rex v. Moore, 2 Den. C. C. 522; Reg. v. Reeve, 12 Cox C. C, 179.

3 McAdory v. State, 62 Ala. 154; Com. v. Tuckerman, 10 Gray, 190; Com. v. Howe, 2 Allen (Mass.), 153; Newman v. State, 49 Ala. 9; Johnson State, 61 Ga. 305; State v. Darnell,

1 Houst. (Del.) 321; Flagg v. People, 40 Mich. 706; State v. Phelps, 11 Vt. 116

5 Welsh v. State (Ala., 1893), 11 S. Rep. 450; State v. West, 45 La. Ann. 14; 13 S. Rep. 173; State v. Duncan (Mo., 1893), 22 S. W. Rep. 699; State v. Fletcher (Oreg., 1893), 33 Pac. Rep. 575; Owensby v. State, 82 Ala. 63; 2 S. Rep. 764; State v. Duncan, 6 Ired. L. (N. C.) 236; State v. Haynes, 71 N. C. 79.

6 Pace v. State (Tex., 1893), 20 S. W. Rep. 762. See as to testimony of accomplices, §§ 320, 321.

7 See ante, § 69.

s McGraw v. Com. (Ky., 1893), 20 S. W. Rep. 879.