is competent evidence, and if the evidence, person was mentioned, and they did not all considered, including the confession, is sufficient to prove guilt beyond a reasonable doubt the jury should convict the defend ant. In Michaels v. People, 208 Ill. 603, 70 N. E. 747, the indictment was for forgery and the defendant was convicted. The instrument forged was a check for $75 to W. E. Hull, in Peoria, Ill. Defendant was arrested in Memphis, Tenn., and taken to a hotel where Hull was stopping. When brought into the presence of Hull and charged with the forgery, witnesses testified defendant told Hull he would give him back his $75; said he would like to fix it up and would give ten times the amount to settle it. The court instructed the jury that if they believed, beyond a reasonable doubt, defendant had made a free and voluntary confession, it would warrant his conviction if the proof showed beyond reasonable doubt that the forgery was committed by some one. The court, after referring to the evidence above mentioned, said it did not amount to a confession, and after pointing out the distinction between an acknowledgment of guilt of the crime charged and declarations or admissions criminating in their nature or tending to prove guilt, said: know whether what was said by defendant referred to a person or not. The statements Catte, a prisoner in the Urbana jail, testified defendant made there did not amount to a confession that he murdered Martin. At most they were only statements tending to prove guilt. The only witness who testified to statements of defendant which amounted to an acknowledgment of his guilt of the murder of Martin was Earl Pitman, a prisoner in the Urbana jail when defendant was there and at the time of the trial a prisoner in the penitentiary. We refrain from analyz ing his testimony and speaking of the impression it makes upon us. In passing on the motion for a new trial, the trial court, commenting upon Putman's testimony, said, standing alone it would not convict anybody. But, assuming he was a credible witness and his testimony worthy of belief, the giving of instructions 21 and 22 was reversible error. Counsel for the people argue in their brief that the testimony of all four of said wit nesses was of confessions by defendant, and the instructions were evidently given by the court upon that theory. The situation is very similar to that in Michaels v. People, supra. With equal force it may be said in this case the jury would naturally assume what those four witnesses testified defendant said was an acknowledgment of his guilt of the murder of Martin, and, with the evidence that Martin had been murdered, was "By the instruction the jury were advised that a confession by the defendant, if proved, was of itself sufficient to warrant a conviction if the corpus delicti were otherwise proved. The jury would naturally assume that the testimony as to what defendant said when arrested was evi-sufficient to justify his conviction. dence of a confession of the crime with which he was charged, and with the evidence that the check was forged was sufficient to justify his conviction. There being no evidence tending to prove a confession it was prejudicial error to give the instruction." What ever value, if any, the declarations of defendant testified to by Henson, Warrick, and Catte may have had as evidence from which an inference might have been drawn, they were not acknowledgments by him of his guilt of the murder of Martin, which was the crime he was tried for. Indeed, so broad and general were the instructions that it was possible for the jury to assume some of the declarations made by defendant to sev eral witnesses for the people in the jail at Monticello were confessions. To all this lat ter class of witnesses he denied taking any The court cited as supporting the decision, Johnson v. People, 197 Ill. 48, 64 N. E. 286. [3] A confession is limited to an acknowledgment of guilt of the crime or of facts which directly and necessarily imply it. There is a distinction between confessions and admissions of facts tending to establish guilt. Daniels v. State, 57 Fla. 1, 48 So. 747; of Martin's money and denied murdering State v. Picton, 51 La. Ann. 624, 25 So. 375; Fletcher v. State, 90 Ga. 468, 17 S. E. 100; State v. Knowles, 48 Iowa, 598; State v. Red, 53 Iowa, 69, 4 N. E. 831; State v. Reinhart, 26 Or. 466, 38 P. 822; People v. Strong, 30 Cal. 157. [4, 5] Counsel for the people argue that the statements the prisoners in the jails at Clinton and Urbana testified defendant made were confessions. Clearly the statements Warrick and Henson testified defendant made in the jail at Clinton were not an acknowledgment of his guilt of the murder of Martin. One of them testified he heard defendant say to Lafe Miller, another prisoner. "I shot him;" the other that defendant said to Miller, "I killed him," or "They say I killed him." Both testified the name of no him. No witness testified he acknowledged his guilt of the crime except Pitman, and it was prejudicial error to give the instructions referred to. [6] There are numerous other errors assigned and discussed in the briefs. Some of them have merit and some of them are with out merit, but, as the judgment must be reversed for the error in giving the instructions referred to, we will not go into a discussion of them further than to remark that we think there was some basis for the complaint that the court was unnecessarily liberal in per mitting leading questions by counsel for the people in examining their witnesses. We express no opinion on the merits of the testimony in the absence of prejudicial error on the trial, but where the extreme penalty for (145 N.E.) ter of law. murder is fixed, in addition to the proof of, material evidence, general finding for defendant guilt being reasonably clear there must be must stand, unless wholly unwarranted as matno prejudicial error committed during the trial if a reviewing court is justified in affirming the judgment. That Martin was cruelly and brutally murdered seems clear from the evidence beyond doubt. The crime was of such a character as to excite the righteous indignation of all law-abiding people against the perpetrator. The case is presented to us in voluminous form. The briefs and arguments prepared by defendant contain 283 pages and the abstract 500 pages. The people's brief and argument consist of 342 pages, and they have filed an abstract in two volumes, containing 2,300 pages. On account of the importance of the case to both the public and the defendant, we have given much time and care to its consideration. It cannot be doubted that the instructions to which we have referred were erroneous, nor can it be reasonably claimed that they were harmless. Defendant never acknowledged his guilt of the murder of Martin, unless he did so to Pitman, whose testimony the trial court said would not convict anybody. Defendant was contending, not only for his liberty, but also for his life. It was necessary that his lawful rights be recognized and that prejudicial errors should not be committed against him. The errors we have referred to cannot be disregarded, no matter if the evidence could not be reconciled with any theory consistent with defendant's innocence. He had a right to be tried in accordance with the law and to insist his legal rights should not be violated on the trial. It is, of course, unfortunate that a judgment, the result of an important and expensive trial, must be reversed and the case again tried, but consideration of such questions can have little influence where human rights are involved, and can never justify disregarding such rights. We have not referred to all the evidence, nor to all the errors assigned which have merit, but we have endeavored to state the most important evidence and to discuss the most important errors. In our judgment the motion for a new trial should have been granted. Accordingly the judgment is reversed, and the case remanded for a new trial. Reversed and remanded. GORMAN v. MacPHERSON. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 14, 1924.) I. Appeal and error 696(1)-General find ing for defendant must stand, unless wholly unwarranted as matter of law, where evidence not reported. Where evidence is not reported, and it is not stated that bill of exceptions contains all 2. Joint adventures 5(1)-No error of law in refusing request to find for plaintiff in suit between parties. Under contract whereby plaintiff, defendant, and another were to contribute to purchase price of land, and defendant was to reimburse plaintiff, there was no error of law, in action for reimbursement, in denying ruling not appear that plaintiff had performed, or that that finding should be for plaintiff, where it did his conduct had not exonerated defendant from liability. Exceptions from Superior Court, Suffolk County; A. R. Weed, Judge. Action of contract by William H. McPherson against James E. MacPherson to recover money under an agreement. Plaintiff being adjudicated a bankrupt, Frank C. Gorman, trustee, was substituted as plaintiff. Finding for defendant, and plaintiff brings exceptions. Exceptions overruled. A. H. Lewis, of Boston, for plaintiff. J. P. Driscoll, of Framingham, for defendant. RUGG, C. J. This is an action of contract to recover the sum of $5,000 under an agreement to which the parties were the plaintiff, the defendant, and one Wolfson. The agreement recited a desire by the parties to purchase specified land at a stated price. The agreement further provided: "Whereas each of the three said parties desires to contribute in equal shares to the amount of fifty thousand dollars ($50,000) initial payment on said land and to the carrying charges on said land, but the said James E. MacPherson is to guarantee the return of what Louis Wolfson contribute in this respect: Now the said William H. McPherson and the said therefore the said parties, each in consideration of the agreement of the other and of the amount of one dollar each to the other in hand paid, receipt whereof is hereby acknowledged, hereby agrees as follows: "1. Each of the three parties shall contribute one-third of the initial payment of five the purchase of said land and each shall conthousand dollars ($5,000.00) in connection with tribute one-third of the remaining forty-five thousand dollars ($45,000) of said purchase payment of fifty thousand dollars ($50,000) and each shall pay one-third of the carrying charges on said property for the period of one (1) year from date; and all three shall sign the mortgage notes for the balance of the purchase price of said land. "2. James E. MacPherson agrees to reimburse the other said parties to the amount of their contributions as outlined above one (1) year from the date of this instrument provided they have not been so reimbursed out of the profit of any transaction or transactions growing out of the purchase of this land by the said three parties." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The original plaintiff was adjudicated a bankrupt during the pendency of this suit, and it has been prosecuted by the trustee in bankruptcy of his estate, who was substituted as plaintiff. It appeared in evidence that certain conversations were had between William H. McPherson, the former plaintiff, It [1, 2] The evidence is not reported. The general finding for the defendant cannot be revised. It must stand unless wholly unwarranted as matter of law. Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N. E. 803. The record discloses no error of law in denying the requested ruling. There is nothing to require the conclusion as matter of law that the plaintiff is entitled to recover. It is not shown that the bankrupt had carried out his part of the contract. For aught that appears his conduct may have been such as completely to exonerate the defendant from liability. Exceptions overruled. INHABITANTS OF TOWN OF SOUTHBOR- (Supreme Judicial Court of Massachusetts. 1. Contracts 170(1)-Conduct of town and street railway entitled to weight in ascertaining whether annual payment by railway is excise tax. Conduct of town and street railway in interpreting contract to pay town certain sum of money annually is entitled to some weight in ascertaining whether payment was intended as substitute for excise tax or for some other purpose. 2. Taxation 31 Function of Legislature, that cannot be waived or changed by municipalities or officers. 4. Taxation 31-That excise tax would be small did not justify attempt to modify excise law by local authorities. That physical location of street railway was chiefly over private land rather than over public ways, and that thus excise tax, under R. L. c. 14, § 44, would be relatively small in connection with length of tracks in town, did not justify attempt to modify excise law by local authorities by contract. 5. Municipal corporations 680, 681 (7) -Selectmen, granting location for street railway, not agents of town, and not bound by votes of town. Selectmen of town, in granting location for tracks of street railway, acted as public officers performing judicial or quasi judicial func tions, and were not agents of town, and were not bound by votes in respect to those functions. 6. Taxation 31-Contract by street railway to pay annual sums for locations held to relate to taxation and invalid. Contract by street railway to pay certain annual sums, made contemporaneously with granting of locations, held to relate to subject of taxation, so as to be invalid, as in conflict with legislative acts on subject. Appeal from Superior Court, Worcester County; A. R. Weed, Judge. Action of contract by the Inhabitants of the Town of Southborough against the Boston & Worcester Street Railway Company to recover sum agreed to be paid in consideration of granting of locations and other considerations. Judgment for defendant, and plaintiff appeals. Judgment for defendant. R. H. Oveson, of Boston, for appellant. W. P. Kelley, of Boston, for appellee. RUGG, C. J. This is an action of contract. The declaration contains a single count. It sets forth a written instrument, dated August 19, 1902, wherein, after a recital of the granting on that day of a location to the defendant on certain highways in the town of Southborough, the defendant agreed amongst several other stipulations to pay to the plaintiff the sum of $900 annually "with such sum in excess thereof as would equal its excise tax payable to said town were all its tracks therein located in public ways." The plaintiff, in consideration of all these agreements by the defendant, agreed to "take such land as may be nec essary for widening and relocating any public ways that must be widened or relocated to enable said company to construct its railFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Taxation is function of general legislative department of government, and laws established by it cannot be waived or changed by municipalities or their officers. way as provided in said location." (145 N.E.) are allegations of refusal by the defendant to pay $900 annually for the years 1920 and 1921 and consequent indebtedness. The answer of the defendant, in addition to a general denial, avers the illegality of the contract alleged in the declaration and also the enactment of St. 1919, c. 370, whereby provision was made that no excise taxes should be collected of street railway companies under St. 1906, c. 463, pt. 3, §§ 134, 136, and acts in amendment thereof or in addition thereto during 1920 and 1921. would be entitled to but little of the excise to be imposed on the defendant under the provisions of law, and that the $900 annual payment was "for expenses and repairs and clearing snow from public ways in excess of what would be covered by the amount to be paid to the plaintiff by the defendant as excise or commutation taxes." There, the plaintiff exceeded the sum of $900 a year. In no year was the computation of the amount due, either as excise tax or under the contract, made taking into account all of the defendant's tracks in the plaintiff town including those over private lands, nor did the defendant in any year pay to the plaintiff "the annual payment of nine hundred dollars ($900) with such sum in excess thereof as would equal its excise tax payable to said town were all its tracks therein located in public ways." It was agreed that, subsequent to the execution of said contract, The case was heard by a judge of the su- such land was taken as was necessary for perior court, who made findings of fact in widening and relocating public ways within substance as follows: In 1902 votes were the plaintiff town that needed to be widened passed at the annual meeting of the town or relocated to enable the defendant to conof Southborough purporting to authorize the struct its railway as provided by said locaselectmen to contract with the defendant as tion. It appeared during the negotiations to all matters concerning the location, con- preceding the granting and execution of the struction and maintenance of the street rail- contract that, because of the small length of way of the defendant. After appropriate | track to be operated by the defendant in the proceedings, on August 19, 1902, contempo- public ways in Southborough, the plaintiff raneously with the execution of the contract here in suit, the selectmen granted an original location to the defendant for the construction of its railway in Southborough. The railway of the defendant then proposed and subsequently constructed was between Boston and Worcester. Within the town of Southborough the defendant proposed that the greater part of its length be over its private way. Its railway was to cross four public ways, and 1,700 feet were to be constructed on a public way in which, already, was a single track of another street-railway. The locations were granted accordingly. Among the terms, conditions and obligations imposed in the location was one requiring the payment of $900 annually by the street railway to the town, in which was to be included the excise tax then provided by law. If such excise was less than $900, the company was to be credited with the amount thereof on account of such annual payment, and if the excise exceeded such sum in any year, then such excess was to be paid by the company to the town. The defendant accepted and constructed its railway in conformity to said location. After the location was granted and before the defendant railway began operation, the defendant acquired the franchise and property of the Framingham, Southborough & Marlborough Street Railway Company. The latter company had a considerable length of its tracks in the public ways of the plaintiff town. The excise or commutation taxes thereafter levied upon the defendant were distributed to the plaintiff as provided by law taking into account the tracks originally located as above described and the additional tracks so acquired by the defendant, that is to say, only those factors provided by law for the determination and distribution of said tax. In each year beginning with the year 1904 and up to the year 1920 the amount so levied and paid to [1] The meaning of this finding is not clear. (1) It may mean that the parties fixed on this sum as the closest approximation possible in advance to the amount which would be due to the town annually as excise if the entire trackage of the defendant in the town were in the public ways. (2) It may mean that the additional expenses likely to rest annually upon the town by reason of the construction and operation of the street railway according to the location were estimated to amount to $900. (3) It may mean an annual payment of $900 by the street railway company to the town agreed upon by the parties as a contribution to the cost of general maintenance of ways in Southborough. See R. L. c. 14, § 47, now G. L. c. 63, § 66. Whatever may be the meaning of this finding, the question to be decided is whether the plaintiff can recover upon its declaration on the facts found. The declaration is framed on the written contract and not on the terms of the location. Nevertheless, it is apparent from an analysis of the terms of the contract that it was executed contemporaneously with the granting of the location and was devised to give additional assurance to the town of the performance of the terms, conditions and obligations imposed on the company by the location itself. far as the present action is concerned, the only clause in issue relates to the annual payment of $900. While the words of the location are more explicit than those of the contract, it is manifest that that clause was founded upon the excise tax and was de So Railway, 194 Mass. 80, 83, 80 N. E. 517; N. E. 507; Board of Survey of Arlington v. Bay State Street Railway, 224 Mass. 463, 469, 113 N. E. 273, 5 A. L. R. 24; Northamp ton v. Northampton Street Railway, 231 Mass. 540, 545, 121 N. E. 495; Cambridge v. Boston Elevated Railway, 241 Mass. 374, 378, 135 N. E. 313. They were bound by the same limitations in this particular, so far as they acted as agents of the town in making the contract. signed to secure to the town the payment annually of a larger sum of money than would probably be due under the terms of the ex-dated Street Railway, 199 Mass. 279, 286, 85 cise tax law. The event has turned out differently, because later the defendant acquired and operated the tracks of another street railway company located so largely within public ways as to make the payment of the excise tax under the law in excess of $900. Whatever else may be said about the practical interpretation by the parties of the contract and location as to this payment during the years from 1904 to 1920, it is plain that it was treated as a substitute for the excise tax and that, so long as that excise exceeded $900, neither party was concerned about the contract or location on this point. The conduct of the parties in interpreting the contract confirms the idea that it was intended as a substitute for the excise tax. Such conduct is entitled to some weight in ascertaining the nature of the payment. Nash v. Webber, 204 Mass. 419, 424, 90 N. E. 872; Gallagher v. Murphy, 221 Mass. 363, 365, 108 N. E. 1081, Ann. Cas. 1917E, 594; Crowe v. Bixby, 237 Mass. 249, 253, 129 N. E. 433; Rome v. Gaunt, 246 Mass. 82, 93, 140 N. E. 242. That conduct fortifies the natural inference to be drawn from the words used. There are many instances where, before or at the time of the exercise of the quasi judicial faculty by boards of public officers in laying out, altering or relocating public ways, contracts have been made with the municipality touching the expense of laying out, alteration or relocation of a highway whereby private individuals have contracted with the municipality to bear the whole or a part of such expense. In some instances payments or other arrangements have been made to relieve or lighten the expense to the city or town. Such contracts, payments or other arrangements have always been held valid and enforceable. Parks v. Boston, 8 Pick. 218, 19 Am. Dec. 322; Freetown v. Bristol, 9 Pick. 46; Jones v. Andover, 9 Pick. 146, 153, 154; Copeland v. Packard, 16 Pick. 217; Crockett v. Boston, 5 Cush. 182; Atkinson v. Newton, 169 Mass. 240, 47 N. E. 1029; [2, 3] What the parties attempted to do was to make an additional and supplemental provision respecting the excise tax. Taxation is a function of the general legislative | Brookfield v. Reed, 152 Mass. 568, 26 N. E. department of government. The laws established by it cannot be waived or changed by municipalities or their officers. Such laws are and must be general in their operation. When the Legislature has covered the whole subject, there is no room for the exercise of authority by local officers. The town has no power to make a contract concerning that subject. Cox v. Segee, 206 Mass. 380, 92 N. E. 620; Gile v. Perkins, 207 Mass. 172, 93 N. E. 586; Boston Rubber Shoe Co. v. Malden, 216 Mass. 508, 104 N. E. 478, and cases there collected; Parsons v. Lenox, 228 Mass. 231, 235, 117 N. E. 197. [4,5] The circumstance that the physical location of the railway was chiefly over private land rather than over public ways, and that thus the excise tax under R. L. C. 14, § 44, would be relatively small in comparison with the length of tracks in Southborough, did not justify an attempt to modify the excise law. The selectmen, in granting the location for the tracks of the defendant, acted as public officers performing a judicial or quasi judicial function. They were not agents of the town and were not bound by the votes of the town in respect to those functions. They cannot travel outside the limits of the law. Underwood v. Worcester, 177 Mass. 173, 175, 58 N. E. 589; Hewett v. Canton, 182 Mass. 220, 223, 65 N. E. 42; Flood v. Leahy, 183 Mass. 232, 66 N. E. 787; Hyde v. Boston & Worcester Street 138; Aspinwall v. Boston, 191 Mass. 441, 445, 78 N. E. 103; Estes v. Newton, 241 Mass. 229, 232, 136 N. E. 643. See Nevins v. City Council of Springfield, 227 Mass. 538, 542, 116 N. E. 881. Compare West Springfield & Agawam Street Railway v. Bodurtha, 181 Mass. 583, 64 N. E. 414. Such cases, however, rest upon a different principle and have no bearing upon the case at bar. They have no relation to the tax laws, although they may indirectly affect municipal reve nues. The case at bar also is distinguishable from the numerous decisions to the effect that "other terms, conditions and obligations in addition to the general provisions of law" may lawfully be inserted in locations, such as Newcomb v. Norfolk Western Street Railway, 179 Mass. 449, 61 N. E. 42; Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294, 68 N. E. 340; Hyde Park v. Old Colony Street Railway, 188 Mass. 180, 74 N. E. 352; and Selectmen of Wellesley v. Boston & Worcester Street Railway, 188 Mass. 250, 74 N. E. 355. [6] The contract upon which this action is brought relates to the subject of taxation, which in essence is and must be authorized by a general law. If resort be had to the corresponding term of the location, it is subject to the same infirmity. It follows that the contract, either standing alone or interpreted in connection with |