crime has been committed. [L. 1864; D. Cd. § 214; D. & L. § 169; H. C. § 1368.] This section has not altered the rule of the common law as to the admissibility of confession induced by the influence of hope applied to the prisoner's mind by the officers of law having him in custody on a charge of crime: State v. Wintzingerode, 9 Or. 153; State v. Moran, 15 Or. 265, 14 Pac. 419. Where admissions were made to the arresting officer, and it also appears that the officer advised the defendant to make a confession, but it did not appear whether admission was made before or after the advice was given, and the defendant's attorney neglected to question the witness on that subject, the court refused to charge the jury that they should disregard the evidence of the admissions: State v. Leonard. 3 Or. 157. When a confession has been improperly obtained by an officer from a prisoner in his custody, through fear or hope of reward, a subsequent confession of similar facts made by the prisoner while still in custody upon the same charge, should be excluded, unless facts and circumstances are shown which fairly justify the inference that the influence under which the original confession was obtained has ceased to operate upon the prisoner's mind. Whether such influence has ceased is a question of fact, to be determined by the court below in which the trial is held, and it is only when the record fails to show that any satisfactory evidence was before that court on the question, that the supreme court will disturb its determination: State v. Wintzingerode, 9 Or. 153. The court is to determine whether or not a confession was made under the influence of hope or fear. This inquiry is preliminary to the admission of evidence, and is addressed entirely to the judge: State v. Moran, 15 Or. 265, 14 Pac. 419. Where the accused agrees with the district attorney that he will testify fully and freely in a case then pending against K. on a charge for the same killing, and did so testify before the coroner's jury and the grand jury, but during K.'s trial the accused escaped, and K. was acquitted, when the accused was put on trial for the same killing, his confession and former testimony might be given in evidence against him: State v. Moran, 15 Or. 265, 14 Pac. 419. Statements or declarations of the ac cused, voluntarily made, of such facts as necessarily involve the commission of a crime, or in themselves constitute a crime, are admissions of guilt, and may be properly denominated "confessions,' nor will they be reduced to the grade of admissions only by exculpatory statements made in the same connection: State v. Porter, 32 Or. 142, 49 Pac. 964. Involuntary confession can not be used to contradict a witness' statements on the witness stand: State v. Steeves, 29 Or. 105, 43 Pac. 947. A "confession," in a legal sense, is restricted to an acknowledgment of guilt made by a person after the offense has been committed, and does not apply to the simple statements or declarations of an independent fact from which such guilt may be inferred. Therefore, on a trial for larceny or embezzlement, the books kept by the defendant for his employer, and which he falsified to conceal his stealings, are not "confessions," and need not be corroborated by other evidence to sustain a conviction: State v. Reinhart, 26 Or. 477, 38 Pac. 822. Where gold dust was intrusted to the possession of another to deliver to a third person in Portland, when the object of the trust would be accomplished, and upon demand of such bailee for the property he promised to deliver it but failed to do so, upon the third demand he denied having received it, and refused to account, held that his admissions were merely corroborative, and that, the fact of conversion having been proved by other testimony, the judgment of conviction was not erroneous: State v. You, 20 Or. 222, 25 Pac. 355. The words "confession" and "admission" are not synonymous, the latter relating to an acknowledgment of facts, and the former to an acknowledgment of guilt; so that a charge using the word confession, where the evidence merely shows admission of facts from which a conclusion of guilt might under certain instances be drawn, was erroneous: State v. Heidenrich, 29 Or. 381, 45 Pac. 755. Where the conversations of the defendants are admissible as confessions, the whole conversation relating to that subject may be admitted, although it includes conversation that occurred on a former occasion: State v. Taylor, 3 Or. 10. $ 1404. Error not Material Unless it Prejudice Substantial Right of Defendant. Neither a departure from the form or mode prescribed by this code, in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right. [L. 1864; D. Cd. § 215; D. & L. § 170; H. C. § 1369.] $ 1405. Evidence of Rape or Crime Against Nature. Proof of actual penetration into the body is sufficient to sustain an indictment for rape or for the crime against nature. [L. 1864; D. Cd. § 216; D. & L. § 171; H. C. § 1370.] See note to § 1760, post. $ 1406. Testimony of Accomplice, not Sufficient Unless Corroborated. A conviction can not be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely show the commission of the crime or the circumstances of the commission. [L. 1864; D. Cd. § 217; D. & L. § 172; H. C. § 1371.] CORROBORATION OF TESTIMONY OF AN ACCOMPLICE.-A defendant can not be convicted of a criminal offense upon the testimony of an accomplice, unless there is other evidence which, of itself, and without the aid of the testimony of the accomplice, tends in some degree to connect the defendant with the commission of the offense: State v. Odell, 8 Or. 31. Proof that the prisoner was in town at the time of the alleged commission of the crime is not alone sufficient to corroborate the testimony of an accomplice, and to warrant conviction: State v. Odell, 8 Or. 31. On a prosecution for rape committed on a child under the age of consent, evidence of acts of sexual intercourse between defendant and the prosecutrix, other than the one charged, is admissible for the purpose of corroborating the testimony of the prosecutrix State v. Robinson, 32 Or. 50, 48 Pac. 357. Testimony that a witness is acquainted with the handwriting of defendant charged with forgery, and recognized the latter's signature, which appears attached to the forgery as that of a witness, to be in his handwriting, sufficiently corroborates an accomplice, and tends to connect the defendant with the commission of the crime charged: State v. Tice, 30 Or. 464, 48 Pac. 367. Where the testimony shows that defendant and his accomplice were together at or near the place where the larceny of an animal was committed, under circumstances which indicated concert between them in furtherance of a common purpose, it was held, that the evidence tended in some degree to connect the defendant with the commission of the crime: State v. Townsend, 19 Or. 215, 23 Pac. 968. Admissions and confessions of a woman with whom defendant is charged with having committed adultery are not sufficiently corroborated to sustain a conviction, where the corroborating evidence goes merely to show that there was an opportunity to commit the act, but does not show an adulterous mind in either party, or any circumstances from which the commission of the act might be inferred: State v. Scott, 28 Or. 335, 42 Pac. 1. WHO IS AN ACCOMPLICE.-Whether a witness is or is not an accomplice is a question for the court, where the facts in relation thereto are admitted, and no issue thereon is raised by the evidence; but if the evidence is conflicting as to whether a witness is an accomplice, that issue should be submitted to the jury under proper instructions: State v. Carr, 28 Or. 393, 42 Pac. 215. A mature person of ordinary intelligence, who knowingly offers as a bribe to a juror money provided by another for that purpose, becomes an accomplice within the meaning of this section: State v. Carr, 28 Or. 394, 42 Pac. 215. In the crime of incest, the party to the crime not on trial is an accomplice: State v. Jarvis, 18 Or. 362, 23 Pac. 251. In the crime of adultery, the one not on trial is the accomplice of the other: State v. Scott, 28 Or. 335, 42 Pac. 1. The dealer of a game of stud poker is an accomplice with those who bet at such game: State v. Light, 17 Or. 360, 21 Pac. 132. In a prosecution for the crime of rape committed on a girl under the age of consent, the girl can not be an accomplice, and a conviction may be had upon her uncorroborated testimony: State v. Knighten, 39 Or. 63, 64 Pac. 866. A person who did not counsel, aid, or abet, or in any manner participate, in the commission of a crime, and whose only knowledge of the facts was derived from what she saw and heard at her husband's house, he being one of the parties implicated, is not an accomplice: State v. Roberts, 15 Or. 197, 13 Pac. 896. § 1407. Evidence on Trial for False Pretenses. Upon a trial for having, by any false pretense, obtained the signature of any person to any written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing; but such pretense, or some note or memorandum thereof, must be in writing, and either subscribed by or in the handwriting of the defendant. This section does not apply to an action for falsely representing or personating another, and in such assumed character receiving any such valuable thing. [L. 1864; D. Cd. § 218; D. & L. §173; H. C. § 1372.] Upon trial of an indictment for obtaining uine: State v. Lurch, 12 Or. 95, 6 Pac. money by false pretenses, where the 405. charge is that the accused had obtained money by giving certain forged instruments, purporting to be promissory notes of third parties, as security, representing them to be genuine, the accused may give evidence that the signatures upon the notes were written by himself, under the direction and authority of the persons represented to be the makers, and such note so signed is not a false writing but gen A person is not himself a false token so as to be indictable for obtaining money by means of a false token and false pretenses. under this and § 1811, where he procures money from a woman by promise of marriage, and by offering himself to her under a fictitious name, and by falsely stating he is unmarried: State v. Renick, 33 Or. 585. 56 Pac. 275, 72 Am. St. Rep. 758, 44 L. R. A. 266. § 1408. Evidence of Female Abducted or Seduced, Must be Corroborated. Upon a trial for inveigling, enticing, or taking away an unmarried female for the purposes of prostitution, or for having seduced and had illicit connection with an unmarried female, the defendant can not be convicted. upon the testimony of the female injured, unless she is corroborated by some other evidence tending to connect the defendant with the commission of the crime. [L. 1864; D. Cd. § 219; D. & L. § 174; H. C. § 1373.] § 1409. Court to Decide Questions of Law. All questions of law, including the admissibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court, and all discussions of law addressed to it; and whenever the knowledge of the court is by this code made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it as conclusive. [L. 1864; D. Cd. § 220; D. & L. § 175; H. C. § 1374.] As to judicial knowledge, see § 720, and note. Construction of writings is for the court: State v. Moy Looke, 7 Or. 54. The question whether the jury is likely to come to an agreement is for the trial court to decide: State v. Reinhart, 26 Or. 476, 38 Pac. 822. An instruction which simply embodies the effect of this section is not erroneous: State v. Reinhart, 26 Or. 482, 38 Pac. 822. § 1410. Jury to Receive the Law from the Court, and to Decide the Facts. Although the jury have the power to find a general verdict, which includes questions of law as well as fact, they are bound, nevertheless, to receive as law what is laid down as such by the court; but all questions of fact, other than those mentioned in the last section, must be decided by the jury, and all evidence thereon addressed to them. [L. 1864; D. Cd. § 221; D. & L. § 176; H. C. § 1375.] § 1411. Defendant, May be Committed after Appearance. When a defendant who has given bail appears for trial, the court may, in its discretion, at any time after such appearance, order him to be committed to actual custody to abide the judgment or further order of the court; and he must be committed and held in custody accordingly. [L. 1864; D. Cd. § 222 ; D. & L. § 177; H. C. § 1376.] § 1412. Verdict May be Either General or Special. The jury may either find a general verdict, or where they are in doubt as to the legal effect of the facts proven, they may find a special verdict. |L. 1864; D. Cd. § 158; D. & L. §178; H. C. § 1377.] VERDICT, GENERALLY. In a case received by the court: State v. Cartwright, where two defendants are jointly prose- 10 Or. 195. cuted, a verdict that reads, "We, the jury, find defendant guilty as charged," is void for uncertainty, and such verdict can not be amended to show that it was intended to convict both defendants: State v. Weeks, 23 Or. 3, 34 Pac. 1095. It is error to receive the verdict of the jury in the absence of the defendant, where the crime is a felony: State v. Spores, 4 Or. 198. The record of conviction of a felony must show affirmatively that the prisoner was present in person when the verdict was A recommendation of the prisoners to the mercy of the court by the jury is not inconsistent with a verdict of guilty: State v. Fitzhugh, 2 Or. 227. A general verdict where two are charged in an indictment with a crime is good, and is a verdict against both: Jones v. Snider, 8 Or. 127. A verdict that the jury finds the defendant guilty of larceny only, and assesses the value of the property stolen, is a valid special verdict: State v. Savage, 36 Or. 216, 60 Pac. 610. § 1413. General Verdict, Form of, and What it Imports. A general verdict upon a plea of not guilty, is either "guilty" or “not guilty;" which imports a conviction or acquittal of the crime charged in the indictment; and upon a plea of a former conviction or acquittal of the same crime, the verdict is either "for the state," or "for the defendant." [L. 1864; D. Cd. § 159 ; D. & L. § 179; H. C. § 1378.] See note to preceding section. § 1414. Special Verdict Defined - Requisites Of. A special verdict is one by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them. [L. 1864; D. Cd. § 160; D. & L. § 180; H. C. § 1379.] See note to § 1412. § 1415. Special Verdict, how Given. The special verdict must be reduced to writing by the jury, or in their presence, under the direction of the court, and agreed to by them, before they are discharged. It need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury. [L. 1864; D. Cd. § 161; D. & L. § 181; H. C. § 1380.] 1416. Judgment on Special Verdict. The court must give judgment upon the special verdict as follows:1. If the plea be not guilty, and the facts prove the defendant guilty of the crime charged in the indictment, or of any other crime of which he could be convicted under that indictment, as provided in sections 1417 and 1418, judgment must be given accordingly; but if otherwise, judgment of acquittal must be given. [L. 1864; D. Cd. § 162; D. & L. § 182; H. C. § 1381.] § 1417. Jury May Convict of any Degree, or of an Attempt. Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime or any such inferior degree thereof. [L. 1864; D. Cd. § 163; D. & L. § 183; H. C. § 1382.] Where the indictment charges the crime of murder, a verdict of manslaughter is not inconsistent with the indictment: State v. Wintzingerode, 9 Or. 153; Fitzhugh v. State, 2 Or. 217; State v. Grant, 7 Or. 414. Defendant may be convicted of petty larceny under an indictment for larceny from a store, where the value of the stolen property is alleged: State v. Hanlon, 32 Or. 102, 48 Pac. 353; State v. Taylor, 3 Or. 10; State v. Savage, 36 Or. 191, 60 Pac. 610. Burglary is not a crime consisting of different degrees, like the various degrees of criminal homicide; nor is an assault with intent to commit rape one of the degrees of such crime: State v. Ryan, 15 Or. 572, 16 Pac. 417. The court must not instruct the jury what degree to find; that is for the jury, unless the degree of the crime is admitted: State v. Ah Lee, 7 Or. 237; State v. Whitney, 7 Or. 386. $ 1418. Jury May Convict of any Crime Necessarily Included in that Charged. In all cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime. [L. 1864; D. Cd. § 164; D. & L. §184; H. C. § 1383.] The crime of larceny in a building includes necessarily the lesser crime of simple larceny, and under an indictment for larceny in a building, the defendant may be convicted of simple larceny: State v. Savage, 36 Or. 194, 60 Pac. 610; State v. Hanlon, 32 Or. 95, 48 Pac. 353. The grand jury may indict a person for any degree that they may consider the defendant guilty of, but at the trial he may be found guilty of any crime the commission of which is necessarily included in that with which he is charged, or of an attempt to commit such crime: State v. Ellsworth, 30 Or. 159, 47 Pac. 199. The effect of this section is to regard each degree necessarily embraced within the specifications of the charge as a separate indictment, upon all of which the ac cused is tried at the same time, and a verdict of conviction upon an inferior degree operates as an acquittal of all the superior degrees necessarily included therein: State v. Steeves, 29 Or. 109, 43 Pac. 947. It is the duty of the trial court to instruct the jury in a criminal prosecution, where the offense charged necessarily includes a lesser offense, that they have the right to find the accused guilty of the latter, where there is doubt as to his guilt of the former; and where it appears that the instruction was not given, it is error which an accused may take advantage of upon appeal, without having interposed an exception at the trial: State v. Cody, 18 Or. 519, 23 Pac. 891. $ 1419. Jury May Give Verdict as to Defendants, Concerning whom they Agree. On an indictment against several, if the jury can not agree upon a verdict as to all, they may give a verdict as to those in regard to whom they do agree, on which a judgment must be given accordingly; and the case as to the rest of the defendants may be tried by another jury. [L. 1864; D. Cd. § 165; D. & L. §185; H. C. § 1384.] § 1420. When and how Court May Direct a Reconsideration of Verdict. When there is a verdict found, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; but if after such reconsideration they find the same verdict, it must be received. [L. 1864; D. Cd. § 166 ; D. & L. § 186; H. C. § 1385.] § 1421. Verdict can not be Received until in Legal Form. If the jury find a verdict which is neither a general nor a special verdict, as defined in sections 1413 and 1414, the court may, with proper instructions as to the law, direct them to reconsider it; and the verdict can not be received until it be given in some form from which it can be clearly understood what is the intent of the jury, whether to render a general verdict or to find the facts specially, and to leave the judgment to the court. [L. 1864; D. Cd. § 167; D. & L. § 187; H. C. § 1386.] § 1422. Defendant, when to be Discharged or Detained after Acquittal. If judgment of acquittal be given on a general or special verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given, except that, when the acquittal is for a variance between the proof and the indictment, which may be obviated. by a new indictment, the court may order his detention, to the end that a |