Prople v. Le Roy

Ross, J. The defendant, who was convicted of the crime of murder in the first degree, and adjudged to suffer death, brings this appeal from the judgment, and from an order refusing him a new trial. The points he makes we have considered with [614]care, but find in them no valid reason to disturb the judgment. The point most relied on by counsel is that the court below erroneously admitted in evidence certain statements made by defendant .to the witness Lees. It is claimed that those statements were not voluntarily made, but were extorted from defendant by means of threats and promises. It is true that defendant so tt stifled at the trial, but the testimony on the part of the prosecution was to the effect that the statements were not induced by any threats or promises, but were made freely and voluntarily. However this may be, it is a sufficient answer to the point to say that the statements made by defendant, concerning which the witness for the prosecution was permitted to testify, did not constitute a “confession,” admissible only after proof that it was made voluntarily. A confession is a person’s declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt. (People v. Parton, 49 Cal. 637; People v. Strong, 30 Cal. 157; 1 Greenl. §170.) The statements of defendant given in evidence were not acknowledgments of his guilt; on the contrary, in his statements he all the time denied his guilt. The matters admitted by him, however, while not in themselves involving his guilt, did, when connected with other facts, tend to prove it. But proof of such admissions is competent. Said this court in People v. Parton, supra: “An admission of a fact, not in itself involving criminal intent, is not to be rejected as evidence (without the preliminary proof) merely because it may, when connected with other facts, tend to establish guilt.”

There was no error in permitting the witness Lees, in testifying to the statments made by defendant, to refresh his memory from written memoranda made, by him at the time the statements were made. (People v. Cotta, 49 Cal. 170.)

Nor did the court below err in denying defendant’s motion to set aside the information. There are but two statutory grounds for a motion of that character. The first is, that before the filing of the information the defendant was not legally committed by a magistrate, and the second, that the information is not subscribed by the district attorney of the county. (Pen. Code, § 995.) The motion in the present case was made on the first of these grounds, and it is contended that it should have