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confession. And, this being so, it follows that in determining whether the proper foundation for its admission was laid, or, rather, whether the. trial court erred in not ruling it out, as requested by defendant, it is immaterial how far the confession tended to prove guilt. "Having been offered as a confession," as said by the court in the recent and noted case of Bram v. United States, 168 U. S. p. 541, 18 Sup. Ct. 183, 42 L. Ed. 568, "and being admissible only because of that fact, a consideration of the measure of proof which resulted from it does not arise in determining its admissibility. If found to have been illegally admitted, reversible error will result, since the prosecution cannot, on the one hand, offer evidence to prove guilt, and which, by the very offer, is vouched for as tending to that end, and, on the other hand, for the purpose of avoiding the consequences of the error caused by its wrongful admission, be heard to assert that the matter offered as a confession was not prejudicial, because it did not tend to prove guilt." This quotation is pertinent to the case at bar. The admissions made by the defendant were offered by the prosecution as tending to prove guilt. If they did not have that tendency, then they were inadmissible in evidence. But that they clearly did tend to prove guilt, and that they were only admissible as being in the nature of a confession, or as amounting to a partial confession, is evident.

Treating the statements of the defendant in question, then, as in the nature of a confession, we are next to inquire whether, in view of the manner in which they were ob tained by the committing officer, they were obnoxious to the rule which obtains in such cases. This rule is well stated in 3 Russell on Crimes (6th Ed.) 478, as follows: "But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence; not obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.

A con

fession can never be received in evidence where the prisoner has been influenced by any threat or promise, for the law cannot measure the force of the influence used or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted." See, also, 1 Greenl. Ev. (16th Ed.) §§ 219, 220; Taylor on Ev. (9th Ed.) § 872 et seq.; 1 Bishop, Crim. Pro. (3d Ed.) § 1217 et seq.; Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; Reg. v. Baldy, 2 Den. & P. Crown Cases, 428.

We have come to the conclusion, after much consideration, that the statements or admissions made by the defendant were not freely and voluntarily made within the rule as thus stated, and hence were improperly allowed to go to the jury. It appears, from the cross-examination of the committing officer, Barney, that, previous to the making of

most of said statements by the defendant, he had told her that the truth, whatever that might be, ought to be told; that it was always the best, except where it would be the means of conviction; and that even then he should prefer it if it were his case. He had also told her, during the latter part of the conversation, that it was thought she bought the revolver; that there was ample proof that she bought it; and that, having mentioned the place where she bought it, she might just as well say whether or not she bought it. At the time when the statements in question were obtained from the defendant she was in the custody of this officer, and on the way to jail, charged with the crime of murder. That she must have been in a high state of nervous excitement and mental distress, whether guilty or not guilty, and hence ready to catch at any gleam of hope whereby her situation might be bettered, goes without saying. The familiar saying that "drowning men catch at straws" aptly illustrates the mental condition of one in her situation at that time. And we think it is not only possible, but probable, that, having stoutly and persistently asserted her innocence to the officer of the terrible crime charged against her, she was led to believe, by his persuasive and continued questioning, that it would not only do no harm, but would in some way be better for her to admit the purchase of the pistol and the obtaining of the cartridges in question. In other words, the language used by the officer, taken as a whole (and taken in connection with the contradictory statements made by the defendant about the purchase of the pistol), was such as to very naturally convey to the mind of the defendant the idea that she would gain some advantage by admitting that she bought the pistol and obtained the cartridges therefor. And hence it cannot be said that her admission relating thereto was voluntary. We do not wish to be understood in what we have thus said, however, as deciding that a mere request, advice, or admonition to tell the truth will render a confession induced thereby inadmissible in evidence, for the strong current of authorities, as well as the better reason, is to the contrary. Am. & Eng. Ency. of L. (2d Ed.) vol. 6, p. 531, and cases cited; State v. Habib, 18 R. I. 558, 30 Atl. 462. Those decisions which have gone to the extent of so holding have certainly gone "to the verge of good sense, at least." Com. v. Chance, 174 Mass. 249, 54 N. E. 551, 75 Am. St. Rep. 306. But where the request or admonition is given in such language and under such circumstances that the prisoner might naturally have understood it as recommending a confession, the confession induced thereby will be inadmissible in evidence. Nor do we wish to be understood as agreeing with counsel for the defendant in his contention that a confession made by a prisoner to the officer in whose custody he is is not admissible in evidence, for such is not

the law. On the contrary, a confession to the officer in charge of a prisoner, if voluntarily made, is just as admissible as if made to any other person, as ruled by the trial court in this case. See cases collected in Am. & Eng. Ency. of L., vol. 6, supra, pp. 536, 539; Pierce v. United States, 160 U. S. 355, 16 Sup. Ct. 321, 40 L. Ed. 454.

The next exception relied on by defendant is that which was taken to the admission of the testimony of Dr. Jay Perkins as to the results of certain experiments made by him in firing the revolver with which the deceased came to his death. Dr. Perkins was the medical examiner for Providence at the time, and had been such for six years previous. He had had large experience with gunshot wounds which were self-inflicted, and also with those which were not self-inflicted, and had made a special study of the nature and effects of such wounds, and of the manner in which they were produced. In short, he was shown to be an expert in such matters. The theory of the defense in this case was that the deceased committed suicide. The testimony of Dr. Allison was that the bullet wound was on the right temple, about 14 inches above the right ear; that the hair was singed above the bullet wound about 11⁄2 inches, also back of the ear a little; and that the beard of the deceased was singed to a point down below the angle of the mouth. The autopsy showed that the course of the wound was downward and backward, and that the bullet lodged in the cerebellum. The proof shows that there was much greater burning of the hair beneath the wound, in the direction of the mouth, than above the wound; and it was claimed on the part of the prosecution that this was a material fact in determining the position in which the revolver was held when it was fired, the contention being that it was practically impossible for the deceased to have so held the revolver himself as to have caused the wound and the burning or singeing referred to. Perkins testified first, without objection, that he had made experiments with 32-caliber revolvers to ascertain the amount and character of burning which would be made by the discharge thereof. He then testified that he had made experiments with the particular 32-caliber revolver in question. To this testimony the defendant's counsel objected, on the ground that the experiments were ex parte, and hence should not be admitted, as the witness was not shown to have been an expert regularly appointed by the court. This objection was overruled, subject to exception. The doctor then testified that if a pistol is held at any distance from the target the perforation made by the ball is not in the center of the burn, and that a greater part of the burn is on the side corresponding to the hammer of the revolver. He also testified that this is always so; that his own personal observation of gunshot wounds, and all the best authorities, showed it to be the

Dr.

invariable rule that the greater part of the burn is always in the direction of the side in which the hammer of the revolver is held. The contention of the prosecution in support of the admissibility of this evidence is that, having shown the existence of such a fact, it was competent to show that experiments made with the revolver in question produced similar results; while the contention of the defendant is that such evidence is in the nature of manufactured evidence, and hence inadmissible. We do not think the court erred in admitting the testimony in question. Had the experiments been made by a person not an expert in such matters, and had they been limited to the particular pistol which caused the injury, a very different question would arise. For, in such a case, the entire value of the testimony would depend upon the accuracy, skill, and honesty of a particular person regarding a particular and isolated transaction, with no opportunity on the part of the defendant to contradict it. But such is not the case here. The ex parte experiments, if such they may be called, which were made by Dr. Perkins, were not necessary in the establishment of the fact sought to be shown by the prosecution, as that existed independently thereof, as was fully shown in evidence. There was no occasion, therefore, to introduce the particular testimony objected to. But still we see no good reason why it was not admissible, as it tended to corroborate the position taken by the expert. And it is a well-settled rule that, whenever the opinion of a person is deemed to be relevant, the grounds on which such opinion is based are also deemed to be relevant. Stephens' Digest of Ev. supra, 112; Hawkins v. Fall River, 119 Mass. 94: Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711. See State v. Justus, 50 Am. Rep. 470, as to experiments made by nonprofessional witnesses. If a chemist were called as a witness in a criminal case, and were asked the question whether a certain chemical always produces a certain result under given conditions, could it be properly objected that, because he had confirmed the result reached by him by experiments conducted alone in his laboratory with the particular chemical in question, such evidence should be excluded, because the defendant was not present when the experiments were made? We think not. In such a case the witness would be testifying as an expert, and it would be competent for the defendant to contradict his conclusions if they were unscientific or incorrect; so that no harm could come to the defendant simply because he was not present or represented when the particular investigation in question was made. In State v. Asbell, 57 Kan. 398, 46 Pac. 770, it was held that a witness experienced in the use of firearms might properly testify as to experiments like those here in question. The case of Tesney v. The State, 77 Ala. 33, cited by defendant's counsel in support of his objec

tion to the testimony in question, is very different from the one before us. There the witness did not show that he had had any experience in respect to the requisite proximity of a pistol, when discharged, to leave signs or indications of burnt powder on the clothing. And the court said: "A person may be skillful and experienced in the use of firearms and have no observation or experience in respect to the particular matter inquired about. But the court erred in permitting evidence of the result of a solitary experiment of firing at a coat similar to the one worn by defendant, and the exhibition of the coat to the jury. Such evidence superinduces the mischief of trying a collateral controverted matter by proving separate and distinct experiments, with results as variant as the manner of loading the pistols and the modes of making the experiments, dependent more or less on the wishes and feeling of the person making them, and tends to confuse the jury, and withdraw their minds from the consideration of the main issue. The witness, if an expert, may give his opinion, and detail generally the facts on which it is based, whereby the value of the opinion, and of the evidence on which it is founded, is submitted to the jury. McCreary v. Turk, 29 Ala. 244."

The cases of Forehand v. State, 51 Ark. 553, 11 S. W. 766, and Yates v. The People, 38 Ill. 527, relied on by counsel for defendant, are not in point. The experiment in the former case was made by the jury, after they had retired to their room to consider upon their verdict, for the purpose of testing the truth of the defendant's statement. And it was held, and very properly, that this was taking evidence out of court, and in the defendant's absence, and was such misconduct on the part of the jury as entitled the defendant to a new trial. In the latter case the defense was that the deceased had come to his death by his own hand by shooting with a pistol, which was found near his person. On the trial a pistol was shown to the jury, and identified as one which had been sold to the prisoner. But it was not proved to be the one that was found near the deceased, and by the agency of which he undoubtedly came to his death. After the retirement of the jury, the pistol which had been shown to them on the trial was sent to them without the knowledge of the prisoner, his counsel, or the court, and they experimented with it for the purpose of judging whether, under the circumstances proven, the deceased could have shot himself with that weapon. The trial resulted in a verdict of guilty; and it was held that, because the pistol, which had not been properly identified as the one by means of which the deceased was killed, was allowed to go to the jury without the prisoner's consent, a new trial should be granted.

Boyd v. The State, 82 Tenn. 161, cited by defendant, not only fails to sustain the position taken by her, but, on the contrary, is a

strong authority in support of the admissibility of the evidence in question. It was there held, in a very well reasoned opinion, that experts may testify as to the results of experiments made before and during the trial, based upon facts established by the evidence. The theory of the defense in that case was that the deceased came to her death by her own hand, and there was evidence pro and con as to whether there were any powder stains on her clothing. The deceased was shot through the chest, the ball entering under the third rib on the left side, two and a half inches from the center of the breast bone, coming out at the eighth rib, and breaking that rib where it joins the back bone. The court said: "As stated, the experts derived their knowledge, to some extent, from experiments made shortly before, or perhaps in part during, the progress of the trial. A great deal of our knowledge is thus acquired, and it is recognized in everyday life as a legitimate source of knowledge. And it is upon this ground of experience or experiment that persons who have devoted their attention to particular branches of science or art may give their opinions, founded upon such experience and observation. So a surgeon was allowed to testify that a pistol must have been fired close to the body of the deceased, because there distinctly appeared marks of powder and burning on the wrist. Wharton on Hom. § 667. * The fact

that the witnesses detailed the nature of experiments does not diminish the force of the opinions founded upon them. If the experiments are such as to throw light upon the subject of inquiry, testimony as to them is not only admissible, but very material. In most matters the opinion of the witness derives its value from the facts upon which it is founded, whether it be from observation, knowledge or experiment."

While we have no reported case in this state bearing upon the admissibility of testimony as to ex parte experiments like those brought in question in the case at bar, such testimony was admitted in the somewhat noted local case of State v. Congdon, a murder case, which was tried at great length at East Greenwich in 1883. The weapon used by the defendant was a pistol, and an important question at the trial was as to the nearness of the pistol to the deceased when the fatal shot was fired. Dr. William H. Palmer, of Providence, a well-known expert on gunshot wounds, was permitted to testify as to many experiments made by him, both before and after the homicide then in question, in order to determine at what distance from the muzzle of a pistol like the one used in that case powder burns or powder marks I could be caused. Whether this testimony was objected to does not appear from the record of the case which has been preserved. But, in view of the fact that the defendant was represented by such eminent counsel as Hon. Willard Sayles, for many years the

able attorney general of this state, and Adoniram J. Cushing, Esq., and that no point was taken by them in the defendant's petition for a new trial (State v. Congdon, 14 R. I. 458) that the testimony referred to was improperly admitted, it is fair to assume that such testimony had not theretofore been regarded as objectionable by the bar. We therefore decide that the trial court did not err in admitting the testimony now in question.

We have carefully examined the other exceptions taken by defendant's counsel, but do not consider them to be tenable, or of sufficient importance to require special attention. As a new trial must be granted because of the error of the court in refusing to rule out the testimony first hereinbefore considered, after it appeared that the admissions in question were improperly obtained, there is no occasion for us to determine whether the verdict was against the evidence.

Petition for new trial granted.

(97 Me. 449)

BRADBURY v. JACKSON et al. (Supreme Judicial Court of Maine. April 20,

1903.)

WILL-DEVISE AND LEGACY-LIFE ESTATETRUST FUND-POWERS-RESIDUE.

1. When a testator's intention is clearly expressed in the will, and violates no rule of public policy, it overrides technical rules of construction, and must be given effect.

2. That intention is to be gathered from the whole will, and not from isolated words and phrases. A will is not to be expounded by a word here and another there, but by what, on the whole, was the testator's scheme for the rational disposition of his estate.

3. The language of the will should be viewed in the light of the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised, with the testator, and with the will itself.

4. By the ninth item of his will a testator divided the residue of his estate, consisting largely of stocks and bonds, into two equal parts, one-half to the trustees of his granddaughter, and one-half to the trustees of his only surviving son; further directing that the certificates of stock so received should show for whom they held them, as well as the names of the trustees.

By the tenth item he appointed the trustees of his granddaughter, and after investing them with necessary powers for the preservation of the property, and fixing the time when she should come into the full possession and absolute control of her part of the estate, he made her his residuary legatee, including lapsed bequests, and the reversionary or other interests in the property, in trust for his son, but subject to the provision that should she marry and die before she was 27 years old, leaving issue, then with the right of disposal of one-fourth, etc.; and the residue was to be divided among certain persons, or their issue, named in the will. The eleventh item, after appointing trustees for his son and giving them half of his property, provides as follows: "As the property is mostly in stocks paying dividends, and a few bonds that will not soon mature, I direct that the trustees shall keep an annual income account and balance the same annually. and pay

the net income thereof (deducting all charges and expenses) to the said Charles during his life. The account will thus be closed at the end of every year, and should be settled in the probate court every third year. I wish that he should be paid in quarterly payments, and if convenient, monthly. He is my son, and I should prefer to give him the property directly free from the trust, were I not satisfied that it is best for him that I should do as I propose. I am led to fear, from the unfortunate disposition of the property he has had control of, that what I leave for him would also be lost, if left for his unrestricted control, and old age might find him in need. Should he lose his present wife and marry again, and have issue by such wife, such issue, if alive, shall have the property left for him, as aforesaid. Should such wife survive him without issue, he has the right to the disposition of one-half of the block of brick stores in Augusta, and can make provision for her. Should he be very unfortunate and there should be any pressing necessity, said trustees, upon so finding and certifying, may advance to him from time to time, not exceeding five thousand dollars in all. Upon the decease of my sons, James W. and Thomas W. S., I gave their half of the block of brick stores on Water Street (that fell to me as their heir) to my surviving sons, Henry and Charles, placing the latter in trust for him with the right to dispose of it by will. As he has often complained in regard to the disposition of his mother's property, I wish to say here, that after the payment of specific bequests, her property was divided equally between Henry and Charles, and no more of Charles' half was put in trust than she was bound by her promise to her brother, Henry R. Smith, to so place it in order to receive anything from him."

Upon a bill of interpleader filed by the son, the plaintiff, to obtain the construction of the will, he claimed that under item 11 he took at once an absolute equitable fee in the corpus of the estate therein devised in trust, restricted to the enjoyment during his lifetime of the income, only subject to the limitation over to his issue, if any, and, if no issue, then that the trust would terminate at his death, and both the legal and equitable fee would vest in his heirs, subject to any intermediate disposition of it by him.

Reading the will in this case in the light of the facts which the testator had in his mind and recited in the will itself, held, that the plaintiff takes a life estate in the income only of the trust fund named in the eleventh item of the will, with a right to have paid to him not exceeding $5,000 of the principal, contingent upon the trustees finding and certifying that there is a pressing necessity for it. (Official.)

Report from Supreme Judicial Court, Kennebec County.

This was a bill in equity brought by Charles Bradbury, the only surviving son of James W. Bradbury, late of Augusta, for the construction of his father's will, and especially under items ninth, tenth, and eleventh. The case came before the law court upon report. Decree rendered.

The questions raised under these items of the will were: (1) Whether under the provisions of the will the plaintiff takes an absolute estate at law or in equity in one undivided half of the residue, both principal and income, subject only to a trust as to the income during his lifetime; or whether he takes a life estate only in the income; or, if neither, what estate he takes in the principal

and income. (2) In the event of the death of the plaintiff without will and without issue by his present wife, to whom should the trustees deliver the principal in final disposition under the terms of the will?

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

O. D. Baker, for plaintiff. L. C. Cornish, N. L. Bassett, and J. O. Bradbury, for defendants.

POWERS, J. This bill is brought to obtain a construction of a part of the will of James W. Bradbury. The testator left an estate of about $217,000, all in personal property. By the first eight items of his will he gave about $37,000 in various public or private bequests, including a legacy of $8,000 to his son Charles. The balance of his estate he disposed of by the ninth, tenth, and eleventh items of his will, which are as follows:

"Ninth. The residue of my property that remains after the payment of the bequests, gifts, debts and expenses provided for in the eight preceding sections, is to be divided into two equal parts by my executors, as soon as the last bequest is paid, and by them transferred and delivered to the trustees hereinafter named, one-half to the trustees for Eliza Louisa Bradbury, and one-half for the trustees of Charles Bradbury. They shall see that the certificates of the stock they deliver shall show for whom the trustees are holding the property, as well as the name of the trustees.

"Tenth, I name Henry C. Jackson, my nephew, and Louisa H. Bradbury, as trustees for Louisa H. Bradbury, and give to them to hold in trust for Eliza Louisa Bradbury the half of the property transferred to them by my executors. It is mostly in stocks, with a few bonds, and will give little trouble, so that Mr. Jackson can find time to look after the business. The trustees shall have all necessary powers in regard to the preservation of the property, and the investment of the interest until their ward is to have it. When the said Eliza Louisa shall reach the age of twenty-one, she is from that time to have annually the net income of her property, to be paid to her by her trustees in quarterly payments, unless she shall prefer to leave it with the trustees to invest for her.

"On the arrival of my dear granddaughter to that age, I wish to make her a birthday present, and for that purpose I direct the trustees to transfer to her and deliver the -certificate of fifty-two or fifty-three shares of the stock of the Dexter and Newport Railroad, which they will have in trust for her.

"As she will have from her father's estate as much property as she, with her inexperience, can be likely to manage, I deem it for her interest and hereby direct that the trustees continue their trust of the principal un

til she shall reach the age of twenty-seven, when they shall transfer to her one-half, and when she reaches the age of thirty-three, the whole of the property, after deducting all proper charges.

"I make her, the said Eliza Louisa, my residuary legatee; including lapsed bequests and the reversionary or other interests in the property in trust for my son Charles. All of her share of the property shall vest in her when she reaches the age of twenty-seven, although a part shall remain in trust. Should she marry and decease before that age, leaving issue, she shall have the right, after she is twenty-one, to dispose of one-fourth of all her property, and her mother shall have onefourth. The residue shall be divided into shares, and paid by the trustees to the following persons in the proportions according to the shares, and to the issue of any who may die, viz.: To my son Charles four shares, and for his wife, Eva, one share: To James Otis Bradbury, four shares, and one for his wife, and one for each of his two children; his mother, brother, and sister, and the husband of his sister are each to have a share: To Cotton M. Bradbury, one share for himself, one for his daughter Jennie, and one for his two minor children: To Mrs. Margaret H. Gregorie, Miss Esther H. Gregorie, Mrs. Alice G. Hayward, Mrs. Julia M. Claghorn, Mrs. Margaret H. Carter, Miss May Martin, one share for each.

"Eleventh. I name James Otis Bradbury, Oscar Holway, and Henry C. Jackson of Boston, as trustees for my son Charles Bradbury, and I give to them, in trust for him, the half of my property, to be transferred to them by my executors.

"As the property is mostly in stocks paying dividends, and a few bonds that will not soon mature, I direct that the trustees shall keep an annual income account and balance the same annually, and pay the net income thereof (deducting all charges and expenses) to the said Charles during his life. The account will [thus?] be closed at the end of every year, and should be settled in the probate court every third year.

"I wish that he should be paid in quarterly payments, and if convenient, monthly. He is my son, and I should prefer to give him the property directly free from the trust, were I not satisfied that it is best for him that I should do as I propose. I am led to fear, from the unfortunate disposition of the property he has had control of, that what I leave for him would also be lost, if left for his unrestricted control, and old age might find him in need. Should he lose his present wife and marry again, and have issue by such wife, such issue, if alive, shall have the property left for him, as aforesaid.

"Should such wife survive him without issue, he has the right to the disposition of onehalf of the block of brick stores in Augusta, and can make provision for her.

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