961; Corn. v. Sego, 125 Mass. 210 ; even if the appeal comes from an officer of the law; 15 Ir. L. R. N. S. 60; Harding v. State, 54 Ind. 359 ; State v. McLaughlin, 44 Ia. 82 ; Davis v. State, 2 Tex. App. 588 ; Hornsby v. State, 94 Ala. 55, 10 South. 522 ; Cora. v. My ers, 160 Mass. 530, 36 N. E. 481; but see 2 Crawf. & D. 152. Mere advice to confess and tell the truth does not exclude ; State v. Hagan, 54 Mo. 192 ; Stafford v. State, 55 Ga. 592 ; but see State v. Carson, 36 S. C. 524, 15 S. E. 588 ; and the temporal inducement must have been held out by the person to whom the confession was made ; 4 C. & P. 223; unless collusion be suspected; 4 C. & P. 550. The fact that defendant was intoxi cated when he made his confession, though tending to affect its weight, is not ground for its exclusion ; White v. State, 32 Tex. Cr. R. 625, 25 S. W. 784 ; State v. Hogan, 117 La. 863, 42 South. 352 ; Lester v. State, 32 irk. 727; Eskridge v. State, 25 Ala. 30.
Confessions made by an accused in her sleep were held admissible; State v. Mor gan, 35 W. Va. 266, 13 S. E. 385 ; contra, People v. Robinson, 19 Cal. 41.
Nervousness on the part of the accused will not render his statements inadmissible ; State v. Jones, 47 La. Ann. 1524, 18 South. 515 ; or that he was greatly excited ; People v. Cokahnour, 120 Cal. 253, 52 Pac. 505 ; Young v. state, 90 Md. 579, 45 Atl. • 531; or that he had but recently recovered from delirium tremens; Com. v. Chance, 174 Mass. 245, 54 N. E. 551, 75 Am. St. Rep. 306.
A confession is admissible though elicited by questions put to a prisoner by a consta ble, magistrate, or other person ; 5 C. & P. 312 ; Austin v. State, 14 Ark. 556 ; Coro. v. Smith, 119 Mass. 305 ; Murphy v. People, 63 N. Y. 590 ; State v. Carlisle, 57 Mo. 102 ; State v. Ingram, 16 Kan. 14 ; McQueen v. State, 94 Ala. 50, 10 South. 433 ;•Bell v. State, 31 Tex. Cr. R. 276, 20 S. W. 549 ; State v. McLaughlin, 44 Ia. 82 ; even though the question assumes the prisoner's guilt or the confession is obtained by trick . or artifice ; 1 Mood. 28; Sam v. State, 33 Miss. 347 ; State v. Fredericks, 85 Mo. 145 ; State v. Staley, 14 Minn. 105 (Gil. 75) ; Balbo v. People, 80 N. Y. 484; King v. State, 40 Ala. 314; and although it appears that the prisoner was not warned that what he said would be used against him ; 8 Mod. 89 ; 9 C. & P. 124. Statements made to a trial judge freely and voluntarily are admissible in evidence ; State v. Chambers, 45 La. Ann. 36, 11 South. 944.
Confession under oath is admissible when freely made ; Com. v. Wesley, 166 Mass. 248,
44 N. E. 228 ; Shoeffier v. State, 3 Wis. 823 ; Com. v. Clark, 130 Pa. 641, 18 Atl. 988 ; State v. Legg, 59 W. Va. 315, 53 S. E. 545, 3 L. R. A. (N. S.) 1152 ; U. S. v. Brown, 40 Fed. 457 ; People v. McGloin, 91 N. Y..241. That it was made under oath does not change it from a confession into a deposition ; People v.
Owen, 154 Mich. 571, 118 N. W. 590, 21 L. R. A. (N. 'S.) 520.
The question of the admissibility of con fessions at examinations under oath is al most wholly controlled by statute, the pris oner being permitted to become a witness for himself, and being entitled to be cautioned that his statements may be used against him. It is then simply a question whether the stat utory requirements have been fulfilled. Where a statute contained no provision au thorizing or permitting an oath in the pre liminary examination, a confession under oath was held inadmissible ; People v. Gib bons, 43 Cal. 557.
The spirit of the law is that one accused of crime shall not be required to be put un der oath, and thus placed in the dilemma of either being required to testify against him self or being subject to the penalties of false swearing ; Adams v. State, 129 Ga. 248, 58 S. E. 822, 17 L. R. A. (N. S.) 468, 12 Ann. Cas. 158, where the accused were summon ed before a coroner's jury, and without be ing informed of their right not to testify, were sworn.
A statement, not compulsory, made by a party not at the time a prisoner under a criminal charge, is admissible in evidence against him, although it is made upon oath ; 5 C. & P. 530 ; State v. Broughton, 29 N. C. 96, 45 Am. Dec. 507 ; State v. Vaigneur, 5 Rich. (S. C.) 391; Cora. v. Reynolds, 122 Mass. 454 ; Alston v. State, 41 Tex. 39 ; Sny der v. State, 59 Ind. 105; contra, Josephine v. State, 39 Miss. 615; see 8 C. & P. 250; otherwise, if the answers are compulsory ; 1 Den. Cr. Cas. 236 ; People v. McMahon, 15 N. Y. 384 ; Shoeffier v. State, 3 Wis. 823 ; People v. McMahon, 2 Park. Cr. Cas. (N. Y.) 663 ; U. S. v. Prescott, 2 Dill. 405, Fed. Cas. No. 16,085 ; People v. Soto, 49 Cal. 69.
A confession may be inferred from the conduct and demeanor of a prisoner when a statement is made in his presence affecting himself ; 5 C. & P. 332 ; State v. Crowson, 98 N. C. 595, 4' S. E. 143 ; Slattery v. People, 76 Ill. 217 ; Murphy v. State, 36 Ohio St. 628 ; Broyles v. State, 47 Ind. 251; unless such statement is made in the deposition of a wit ness or examination of another prisoner be foie a magistrate ; 1 Mood. 347 ; 6 C. & P. 164.