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Opinion of the Court.

ducements, threats or promises seems to have been negatived by the statement of the circumstances under which it was made."

In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort.

The same rule that the confession must be voluntary is applied to cases where the accused has been examined before a magistrate, in the course of which examination the confession is made, as allowed and restricted by statute in England and in this country in many of the States. Gr. Ev. $ 224. But it is held that there is a well defined distinction between an examination when the person testifies as a witness and when he is examined as a party accused; People v. Mondon, 103 N. Y. 211; State v. Garvey, 25 La. Ann. 191; and that where the accused is sworn, any confession he may make is deprived of its voluntary character, though there is a contrariety of opinion on this point. Gr. Ev. $ 225; State v. Gilman, 51 Maine, 215; Commonwealth v. Clark, 130 Penn. St. 641 ; People v. Kelley, 47 California, 125. The fact that he is in custody and manacled does not necessarily render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. Sparf v. United States, 156 U. S. 51; Pierce v. United States, 160 U. S. 355; State v. Gorham, 67 Vermont, 365 ; State v. Ingram, 16 Kansas, 14. And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned. Joy on Confessions, *45, *48, and cases cited.

In the case at bar defendant was not put under oath, and made no objection to answering the questions propounded. The commissioner testified that the statement was made freely and voluntarily, and no evidence to the contrary was adduced. Nor did defendant when testifying on his own behalf testify to the contrary. He testified merely that the commissioner examined him “ without giving him the benefit

Opinion of the Court.

of counsel or warning him of his right of being represented by counsel, or in any way informing him of his right to be thus represented.” He did not testify that he did not know that he had a right to refuse to answer the questions, or that, if he had known it, he would not have answered. His answers were explanations, and he appeared not to be unwilling to avail himself of that mode of averting suspicion. It is true that, while he was not sworn, he made the statement before a commissioner who was investigating a charge against him, as he was informed; he was in custody but not in irons; there had been threats of mobbing him the night before the examination; he did not have the aid of counsel; and he was not warned that the statement might be used against him or advised tbat he need not answer. These were matters which went to the weight or credibility of what he said of an incriminating character, but as he was not confessing guilt but the contrary, we think that, under all the circumstances disclosed, they were not of themselves sufficient to require his answers to be excluded on the ground of being involuntary as matter of law.

When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury with the direction that they should reject the confession is upon the whole evidence they are satisfied it was not the voluntary act of the defendant. Commonwealth v. Preece, 140 Mass. 276; People v. Howes, 81 Michigan, 396; Thomas v. State, 8+ Georgia, 613; llardy v. United States, 3 Dist. Col. App. 35. The question here, however, is simply upon the admissibility of the statement; and we are not prepared to hold that there was error in its admission in view of its nature and the evidence of its voluntary character; the absence of any threat, compulsion or inducement; or assertion or indication of fear; or even of such influence as the administration of an oath has been supposed to exert.

Judgment affirmed.

Statement of the Case.

CRAIN V. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE

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One count in an indictment may refer to matter in a previous count so as

to avoid unnecessary repetition; and if the previous count be defective or is rejected, that circunstance will not vitiate the remaining counts, if the reference be sufficiently full to incorporate the matter going be

fore with that in the count in which the reference is made. A count in an indictment which charges that the defendant did certain

specified things, and each of them, the doing of which and of each of which was prohibited by statute, and also that he caused the doing of such things and of each of them, is not defective so as to require that judgment upon it be arrested ; and there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a

substantive crime under the statute. A record which sets forth an indictment against a person for the commis

sion of an infamous crime; the appearance of the prosecuting attorney ; the appearance of the accused in person and by his attorney; an order by the court that a jury come “to try the issue joined;" the selection of a named jury for the triai of the cause, who were “sworn to try the issue joined and a true verdict render;" the trial; the retirement of the jury; their verdict finding the prisoner guilty; and the judgment entered thereon in accordance therewith; does not show that the accused was ever formally arraigned, or that he pleaded to the indictment, and the conviction must be set aside; as it is better that a prisoner should escape altogether than that a judgment of conviction of an infamous crime should be sustained, where the record does not clearly show that there was a valid triai.

This writ of error brought up for review a judgment in the District Court of the United States for the Western District of Arkansas, by which the plaintiff in error was sentenced to imprisonment in the House of Correction at Detroit, Michigan, at hard labor, for the term of three years.

The defendant was indicted under section 5121 of the Revised Statutes, which provides : “Every person who falsely makes, alters, forges or counterfeits; or causes or procures to be falsely made, altered, forged or counterfeited; or willingly

VOL. CLXII-40

Statement of the Case.

aids or assists in the false making, altering, forging or counterfeiting, any deed, power of attorney, order, certificate, receipt or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money; or who utters or publishes as true, or causes to be uttered or published as true, any such false, forged, altered or counterfeited deed, power of attorney, order, certificate, receipt or other writing, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited; or who transmits to, or presents at, or causes or procures to be transmitted to, or presented at, any office or officer of the government of the United States, any deed, power of attorney, order, certificate, receipt or other writing, in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited, shall be imprisoned at hard labor for a period of not less than one year nor more than ten years; or shall be imprisoned not more than five years and fined not more than one thousand dollars."

The indictment contained three counts. The first count set out in full a declaration purporting to have been made by one Spahiga, a resident of the Creek Nation, in the Indian Territory, for an invalid pension, to which was appended a certificate or statement purporting to have been made by two persons named Marrel and Fixico, to the effect that they were present and saw Spahiga sign his name or make his mark to said declaration, and that they had every reason to believe that he was the identical person that he represented himself to be. The declaration and accompanying certificate or statement purported to have been sworn to on the 4th day of August, 1892, before “A. W. Crain, U. S. Comm’r, Pension Notary.”

The second count charged: “That herefore, to wit, on the 4th day of August, A.D. 1892, one Spahiga is alleged to have executed a certain declaration and affidavit; said declaration and affidavit are in words and figures as set out in the first count of this indictment, and said declaration and affidavit

Statement of the Case.

purporting to be executed before one A. W. Crain, United States commissioner in the Creek Nation, in the Indian Territory, the said Spahiga claiming in said declaration a pension from the United States as soldier of war of rebellion, who in said declaration was alleged to have enlisted under the name of Spahiga, at —, on the 12th day of August, 1863, Company D, First Regiment, Indian Home Guards, Indian Territory; in the war of the rebellion; said declaration and affidavit, after being so made, executed and falsely counterfeited and forged by said Alex. W. Crain, was by said Alex. W. Crain forwarded, with intent to defraud the United States and to obtain certain moneys from the United States, to the office of the Commissioner of Pensions, in the Department of the Interior, at the city of Washington, in the District of Columbia, where the same was duly filed on the 12th day of August, 1892, as a claim against the Government of the United States for a pension by the said Spahiga, as soldier aforesaid, as aforesaid, and being so filed for approval by the said A. W. Crain, in the office aforesaid, by the Commissioner of Pensions, and the said affidavit and declaration being material on the question pending before said Commissioner of Pensions as to whether the said Spahiga was by the laws of the United States entitled to a pension. And the jurors aforesaid upon their oaths aforesaid do further present that on the 4th day of August, 1892, at the Creek Nation, Indian Territory, and within the Western District of Arkansas, at which date said declaration, affidavit and claims were prepared and made for filing in the office of the Commissioner of Pensions, as aforesaid, the same being an office of the United States, for the purpose aforesaid, one Alex. W. Crain did make, execute and forge, and cause to be made, executed and forged, a certain pretended and false affidavit, or the same may be called a certificate, the same being one and the same paper, and being in form and substance as hereinafter set out, which said forged, false and counterfeited affidavit or certificate was fraudulent, and was a part of the said declaration and affidavit above mentioned, and was forwarded, together with the said declaration, to the office of the Commissioner of Pensions aforesaid

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