The court charged the jury by instruction No. 19, in effect, that:

"Under this indictment it is not necessary to prove expressly either a purpose to kill, or deliberate and premeditated malice.

"The indictment having alleged murder while engaged in the commission of larceny in a dwelling house, it is only required that the larceny and the killing, in the manner alleged during the larceny be proven to make out the case:

-and that under proof of such a case the intent to kill is implied.

By instruction 122, in explaining to the jury that upon the prosecution for murder in the second degree alleged to have been committed during the commission of larceny in a dwelling-house, the clause "purposely and maliciously," etc., contained in Section 1894, included above in parentheses, did not apply, the court used the words "specific intent" apparently in the sense of purpose. See Webster's International Dictionary, for definition of the words "intent" and "purpose. Voluntary intoxication cannot reduce a homicide to manslaughter: State v. Weaver, 35 Or. 417 (58 Pac. 109). This instruction, taken together with number 19, is not subject to misunderstanding by the jury.

15. Where a killing of a human being is done in the commission of a felony described in Section 1894, L. O. L., the ultimate purpose may be to effect the larceny or felony, and although there may be no purpose or specific intent to kill, if the killing is done in the commission of the alleged felony it will nevertheless be murder in the second degree: 21 Am. & Eng. Ency. Law (2 ed.), pp. 133, 165, and 169; State v. Brown, 7 Or. 198, 199.

16. Further exception was saved to instruction No. 19, because it fails to include the element of reasonable

doubt. The instruction complained of does not constitute ground for reversal when considered in connection with five or six others which had already been given and which correctly defined reasonable doubt. The court instructed the jury as to the essential elements of the crime charged and informed them that they could not convict the defendant, unless every such element had been proved to their satisfaction beyond a reasonable doubt. The instructions should be considered as a whole and when they are substantially correct and could not have misled the jury to the prejudice of the defendant, the judgment will not be reversed because some instruction considered alone may be subject to criticism: State v. Anderson, 10 Or. 462; State v. Morey, 25 Or. 241 (35 Pac. 655, 36 Pac. 573); State v. Hansen, 25 Or. 401 (35 Pac. 976, 36 Pac. 296.); State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130). In accordance with this rule it is apparent that no reversible error was committed.

17. It is asserted on behalf of defendant that the evidence did not show that a crime had been committed, as alleged in the indictment, for the reason that the evidence shows that the building in which the homicide occurred was a bawdy-house. Several assignments of error refer to the giving, or refusal to give, instructions with reference to the character of the house in which the homicide was committed. The evidence shows that for two months previous to the murder the woman had constantly lived, slept, and eaten her meals in the house in which she was killed. She occupied two rooms therein and it was in one of these that she was killed. A dwelling-house is a building, any part of which is usually occupied by some person lodging therein at night: Sections 2389, 2390, L. O. L.; 10 Am. & Eng. Enc. Law (2 ed.), 353, 354; 3 Words &

Phrases, pp. 2288, 2294; State v. O'Neil, 21 Or. 170 (27 Pac. 1038); People v. Horrigan, 68 Mich. 491 (36 N. W. 236); State v. Warren, 33 Me. 30. That the woman may have used the house for immoral purposes does not alter the fact that it was her dwelling. The cases all hold that a building, any part of which is usually occupied by some person lodging therein at night is a dwelling-house within the meaning of the law, in regard to arson, burglary or larceny in a dwelling-house notwithstanding the building is used for other purposes. By the same reason, therefore, a house in which a woman lives and makes her home is her dwelling-house within the meaning of the statute notwithstanding she may have been guilty of immoral practices therein. The law protects the dwelling of the ungodly as well as that of the righteous.

18, 19. The court charged the jury under Section 1540, L. O. L., to the effect that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by other evidence: See section noted. In order to be sufficient to warrant a conviction such corroborating evidence must not merely show that a crime had been committed or the circumstances of its commission, but it must be such as tends to connect the defendant with the crime charged. Counsel for defendant saved a general exception to the charge because there is no issue in the case to justify it. It was not specifically pointed out to the trial court wherein the instruction was not justified by the issues. There was no request that it be withdrawn: See Carroll v. Grande Ronde Elec. Co., 52 Or. 376 (97 Pac. 552); Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309). John Frakes according to his testimony had planned to undertake the robbery of the house in conjunction with defendant Tommy Morris and one Martin Anchoberry, but with

drew from the plan and stated to them that he would take no part in it; and the evidence tended to show that a new design with the same thing in view was carried out by Morris and Anchoberry some days after the time that Frakes was to participate. Counsel for the state conceded that it does not seem that Frakes was an accomplice in the commission of the alleged crime. The instruction complained of was favorable to the defendant. The only possible effect that such part of the charge could have upon the minds of the jury would cause them to discredit the damaging testimony given by John Frakes against the defendant. Therefore, instead of having misled the jury to the prejudice of the defendant the instruction was in his favor. The instruction was in strict conformity with Section 1540, L. O. L., and entirely in accord with the law. While the charge to the jury should be confined to the facts in the case the defendant could not have been prejudiced thereby although it was outside the issues. It being favorable to the party complaining we are convinced that the charge criticised did not mislead the jury. It is not ground for reversal: State v. Weaver, 35 Or. 415 (58 Pac. 109); State v. Selby, 73 Or. 378 (144 Pac. 657); 1 Blashfield, Inst. to Juries, § 91; 38 Cyc. 1621, 1622.

20. The defendant criticises several of the instructions because they repeated to the jury definitions of murder in the second degree. It is not contended that either of these instructions is erroneous in that they do not correctly state the law. From a reading of them it is apparent that they were all necessary to fully advise the jury of the crime charged and instruct them with reference to the law in order that they might intelligently apply the evidence which had been adduced before them. No undue prominence appears to have

been given to any phase of the case by these instructions and we find no error committed therein: See Gran v. Houston, 45 Neb. 813 (64 N. W. 245); Commonwealth v. Snelling, 32 Mass. (15 Pick.) 321. The charge to the jury fairly submitted the questions of fact in the case to them.

From a careful examination and consideration of the record in the case we find no reversible error in the trial thereof. The judgment of the lower court is therefore affirmed. AFFIRMED. REHEARING DENIED.

MR. JUSTICE HARRIS (Concurring Specially).

The assignments of error, challenging the confession made by Tommy Morris, relate to a writing signed by him, refer to oral statements concerning money stolen from the decedent and then hidden, and involve verbal declarations about blood stains on a coat and shirt worn by the defendant.

As a preliminary to a discussion of the circumstances attending the making of the confession, it will be appropriate to notice the rule by which the competency of the confession must be measured. Notwithstanding the phraseology of Section 1537, L. O. L., the commonlaw rules governing the admissibility of confessions are still in force in this state; State v. Wintzingerode, 9 Or. 153, 162; State v. Moran, 15 Or. 262, 265 (14 Pac. 419); and therefore to be admissible a confession must be free and voluntary and not made under the influence of fear produced by threats nor induced by the expectation of any promised benefit; 12 Cyc. 461. A voluntary confession is admissible even though it is made while in the custody of an officer: State v. Blodgett, 50 Or. 329, 334 (92 Pac. 820); State v. Scott, 63 Or. 444, 449 (128 Pac. 441); State v. Humphrey, 63 Or. 540, 552 (128 Pac. 824); State v. McPherson, 70 Or. 371, 373 (141 Pac.

83 Or.-29