attributed to the first cause moving the defendant to make the confession to Harvey, unless the evidence clearly shows otherwise. Under the decisions of this court it is clear that the confessions were not free and voluntary, and the objections made to their introduction in evidence should have been sustained."

In Banks v. State, 93 Miss. 700 (47 South. 437), the prisoner's first confession was rejected because of improper inducements. The judgment of conviction was reversed because the second confession made the next day to the same parties while still in their custody was admitted. In People v. Silvers, 6 Cal. App. 69 (92 Pac. 506), the defendant under arrest for the crime of larceny was brought before the district attorney. There were also present one Aitken, one of the officers of the defendant's employing corporation, together with the president of the institution, a Pinkerton detective and the defendant's brother. The district attorney informed him (the accused) that he understood he desired to make a confession; whereupon the defendant said nothing but tears came into his eyes and then Aitken said to him: "Brace up old man and it will be better for you, and tell everything you know." He still hesitated but afterwards made a statement indicative of guilt. It was held that Aitken's statement urging the defendant to confess being made in the presence of the district attorney and not contradicted may well have been construed as a promise of favor if he confessed, though the district attorney informed defendant that he need tell only what he desired. The court said that under such circumstances it was incumbent upon the district attorney not only to say to the defendant that he need not speak unless he wished to, but also to go further and explicitly remove the statement of Aitken from the case and to disclaim being bound by it. In People v. Castro, 125 Cal. 521 (58 Pac.

133), the defendant had made confessions to the sheriff under influences which the court held to be vitiating, and on appeal the case was reversed because confessions made several days after the first, although not by further inducements were admitted in evidence. These authorities clearly dispose of the contention that the written confession is admissible in the instant case because immediately before beginning the writing the prosecuting officer again told the defendant he need not speak unless he wished to. The showing on that point is much stronger in favor of the defendant than the precedents cited, because here it is substantially one transaction covering only a few hours. The defendant had but little time to reflect. He was oppressed by the calamity of his situation. He was so perturbed that as one of the officers testifies he said he did not want anything to eat, and this although he had ridden in the cold of a winter morning to the county seat in Lake County. A long list of authorities on the subject both English and American is set down in Bram v. United States, 168 U. S. 532 (42 L. Ed. 568, 18 Sup. Ct. Rep. 183).

In brief, on the subject of confessions as taken from the evidence of the officers themselves the fact that the defendant is under arrest and is told that another party has confessed implicating him and that he is accused of being present at the homicide and that he had just as well tell it, constitute a compulsion which excludes any confession made in pursuance thereof, although the officers went through the formality of saying to him that he need not speak unless he wished to. Furthermore, the fact that the defendant declares that the sheriff told him it would be better for him to own up and that the sheriff taxed with this statement on crossexamination would not deny it, and neither did the

83 Or.-31

deputy, establishes by a strong preponderance of the evidence that such language was used by the officers, and the authorities are practically unanimous that this constitutes an inducement avoiding the confession. The admissions of the officers clearly show compulsion within the doctrine of Bram v. United States, 168 U. S. 532 (42 L. Ed. 568, 18 Sup. Ct. Rep. 183), and authorities there cited. The court admitted the confession in the face of undisputed facts disclosing coercion influencing the statement of the defendant. The judge was wrong as a matter of law in his conclusion from the facts thus established.

The contention of the state was in substance that the two defendants went to the abode of the deceased and choked her to death for the purpose of stealing her money which she kept in her trunk there. The physician who examined the body was called, and as a witness described the conditions present, the finger marks upon the throat and internal hemorrhage, and then testified as follows over the objection of the defendant:

"Q. From the position of the marks upon the woman's throat and the condition of the throat, can you state, as a result of your examination as a physician, whether or not the strangulation was self inflicted?

"A. It was not.

"Q. From such examination can you state whether or not it was the result of an accident?

"A. My opinion was it was not accidental.'

It was the exclusive province of the jury to determine whether the violence was inflicted accidentally or feloniously. This testimony admitted by the court over the defendant's objection allowed the witness to determine that question for the time being by his opinion. Moreover, it was not a question for opinion or expert evidence. The witness, whether professional

or layman is limited in such cases to a description of the things which he saw and the jury was quite as competent as ordinary observers to determine whether the violence was self inflicted or not.

In State v. Barrett, 33 Or. 194 (54 Pac. 807), a conviction of manslaughter was reversed for the single error of receiving opinion evidence upon a matter which the jury was competent to determine without the assistance of experts. It is there said in the syllabus:

"The opinion of a witness that the body of the deceased at the time he saw it did not lie in the position in which it fell when the person was shot is not competent evidence, for it appeared that the position of the body and the surroundings of the place could all be accurately described, and under such circumstances the jury are to draw their own conclusions."

In State v. Mims, 36 Or. 315 (61 Pac. 888), the defendant pleaded self defense and undertook to show that he was as helpless as a child in a fight with the deceased and did not stand any chance to get away from him. The court held that this called for a matter of opinion of the witness concerning a matter on which the jury were quite as competent to decide as the witness. In State v. Jennings, 48 Or. 483 (87 Pac. 524, 89 Pac. 421), the error leading to the reversal of the conviction of murder was admitting the opinion of a witness about the direction from which a shot was fired; and the court held that where the facts observed by a witness can be accurately portrayed to a jury, the evidence should be limited to such recital and the witness should not be permitted to state his deductions. from such facts.

"For instance," says the syllabus, "a witness who saw the surroundings soon after a homicide by shooting should not be allowed to state his opinion as to the place

from which the bullet came, where the conditions observed can be adequately described."

See, also, Everart v. Fischer, 75 Or. 328 (145 Pac. 33, 147 Pac. 189). These cases are certainly controlling against the opinion of the witness concerning whether or not the death was the result of accident. It was for the jury alone to determine whether the death was accidental or felonious and the witness might as well have been asked his opinion about the guilt or innocence of the defendant. Besides being outside the range of expert testimony the declaration of the witness invaded the province of the jury.

Exception was taken to the giving of instruction No. 121⁄2 to the effect that voluntary intoxication is not a defense to a prosecution for crime. The charge in that respect was correctly framed in the abstract, but a careful perusal of the full report of the testimony attached to and made part of the bill of exceptions reveals nothing whatever showing that the defendant was intoxicated or that drunkenness was urged as a defense. It is true that in the confession the defendant spoke of drinking with his codefendant from a bottle of whisky, but he does not pretend to have been drunk and all the witnesses who spoke on that subject said that at the time of the homicide he was not intoxicated. He also assigns error upon the giving of instruction No. 16, which is here set down:

"The constitution of this state having been amended to abolish capital punishment, the crime of murder is limited to murder in the second degree and manslaughter. You are therefore instructed that under this indictment, you may find the defendant not guilty, or you may find him guilty of manslaughter, or you may find him guilty of murder in the second degree."