As laborer, see "Laborer." election, but is effecting the election. It is CONDUCTOR. so far from being the manner of conducting the election that it is absolutely making the election. State v. Adams (Ala.) 2 Stew. 231, 242. Of person or party. The "conduct" of a party, in its broad sense, consists of acts, words, silence, or negative omission to do anything. It consists of the entire manner of life of a person. The term is frequently used and is an important factor in the law of estoppel, especially in that class of estoppels the foundation of which is justice and good conscience; its object being to prevent the unconscientious and inequitable assertion of claims or rights which might have existed or been enforced by other rules of law unless prevented by estoppel. Hallowell Nat. Bank v. Marston, 27 Atl. 529, 531, 85 Me. 488. If there be a metaphysical distinction between character and conduct, there is no authority in law for admitting evidence of conduct where evidence of character would be excluded. Character or reputation is generally regarded as the voice of the community, but that is just what the conduct of the individual makes it. "The speech of the people," as it is most descriptively called, is suggested by the general tenure of the conduct, so that to prove the one is in effect to prove the other. The text-writers of the adjudged cases generally speak of "conduct" and "character" as convertible terms. Zitzer v. Merkel, 24 Pa. (12 Har.) 408, 410. "Conduct" is defined as personal deportment, mode of action, and behavior, and is so used in Gen. St. 1889, § 2591, providing that in all actions against incorporated cities for damages, in consequence of the action of mobs, the reputation and conduct of the person injured may be given in evidence in mitigation of damages. Adams v. City of Salina, 48 Pac. 918, 919, 58 Kan. 246. CONDUCTED AND HOLDEN. The words "conducted and holden," in Acts 1901, p. 60, c. 4930, § 7, providing that a copy of the record of the result of the canvas of the returns of the election held under the local option law should be prima facie evidence that such election was legally called, conducted, and holden, should be construed to embrace a declaration of the result. By the provision that the record of the canvas should be evidence of an election legally called, conducted, and holden, it was certainly intended that the result of the election, as well as the fact that an election had been had, should be shown thereby, and this includes the canvas. Brass v. State (Fla.) 34 South. 307, 309. "Conductor" is the name of a bailee in a bailment in which goods are left with the bailee to be used by him for hire. Per Holt, C. J., in Coggs v. Bernard, Ld. Raym. 909, 913. In construing a statute providing that "every railroad corporation shall be liable for damages sustained by any employé thereof without contributory negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor, or engineer, or of any other employé who has charge or control of any stationary signal, target point, block or switch," the court said: "There were at the time of the enactment, and had been for a long period of years theretofore, and have been subsequently, in railroad service everywhere in this country, as a matter of common knowledge, officers known as superintendents in the operating department of the road-general superintendents of the whole line and superintendents of divisions. The general duties of such superintendents are intimately connected with the movement of trains and cars. Now, it must be presumed that the Legislature used the word as it was commonly used; that they had in mind the officers of railroads to whom the term was generally applied. The position of superintendent in the railway service is as definitely and well known as that of train dispatcher, telegraph operator, conductor, or engineer. It could not be sincerely claimed that the word 'conductor' can be applied to the foreman of a section gang or of a bridge crew because he merely conducts or manages the work, or that it can be applied to any other conductor than the one who manages the railroad train; and yet the act does not say 'train conductor.' It could not be sincerely claimed that the word 'engineer' can be applied to the engineer who locates tracks and does engineering work of that kind, or who runs some little stationary pumping engine, or to any one of many other persons connected with railroad service that might properly be called engineers; and yet the act does not say 'locomotive engineer.' And the same illustration might be given in respect to each of the persons specifically named in the act. It may thus be clearly seen that to apply the word 'superintendent' to the mere foreman of a repair shop would be entirely inconsistent with the obvious purpose of the act." Hartford v. Northern Pac. R. Co., 64 N. W. 1033, 1034, 91 Wis. 374. CONDUIT. "Conduit," as used in Revision, p. 650, conferring on a corporation the right to "take and divert any and all such springs and streams of water, and erect, alter, and repair reservoirs and works, and lay down all such pipes and conduits as shall be necessary," etc., includes an open canal cut in the earth, and laid in and lined with cement. Cheyney v. Atlantic City Water Works Co., 26 Atl. 95, 96, 55 N. J. Law (26 Vroom) 235. "Conduit is a general word which applies to any channel or structure by which flowing water can be conducted from one point to another. It includes a ditch, flume, pipe, or any kind of aqueduct." Sefton v. Prentice, 37 Pac. 641, 642, 103 Cal. 670. CONFECTIONERY. It did not purport to be of any value unless the Rebellion should prove to be a success. Goodman v. McGehee, 31 Tex. 252, 254. CONFESSION. See "By Confession"; "Extrajudicial Confession"; "Implied Confession"; "Indirect Confession"; "Judgment by Confession"; "Judicial Confession"; "Relative Confession"; "Simple Confession"; "Voluntary Confession." "A 'confession' means ordinarily the acknowledgment of some facts." Adams v. Tator, 10 N. Y. Supp. 617, 618, 57 Hun, 302. Confessions are divided into two classes Judicial confessions are such as are made before a magistrate or court in due course of legal proceedings, while extrajudicial confessions are such as are made by a party elsewhere than before a magistrate or any court, and include either express or implied confessions. Speer v. State, 4 Tex. App. 474, 479. A "confectionery," as defined by Web--Judicial and extrajudicial. ster, is a place where sweetmeats and similar things are made and sold. Such business does not include the selling of liquors by the drink, and hence a confectioner's license in a city whose ordinance requires the licensing of both confectionery and drinking saloons is not sufficient to authorize its holder to sell liquors by the drink. City of New Orleans v. Jane, 34 La. Ann. 667, 668. An indictment charging the defendant with fraudulently adulterating one pound of "confectionery" is insufficient to describe the substance adulterated. "The word 'confectionery' is a generic word, which includes a great variety of kinds of articles usually sold in a confectioner's shop, and does not describe the substance which the defendant is charged with adulterating with the precision and certainty that the Constitution of the commonwealth and rules of criminal pleading require." Commonwealth v. Chase, 125 Mass. 202, 203. A confession is an admission of some CONFEDERACY. thing done antecedently, and hence the admission of a member of a firm, while the firm is in existence, that the proceeds of a note executed by him actually went to the use of the firm, was not a confession. Uhler v. Browning, 28 N. J. Law (4 Dutch.) 79, 82. A confession in an answer that plaintiff was entitled to recover damages to a certain amount is an admission of a cause of action as alleged in the description only to the extent of its terms, and no further, and must then be taken as it is made, since the policy of the law relative to confessions is to enable the defendant, by an admission of so much of the claim as he thinks fit, to limit the controversy to the matters really in dispute, without changing in any respect the situation of the parties as to the matters not admitted, and it would defeat the entire object of confession if it were held to contain any implied admission as to the matters left open to controversy. A confession may doubtless be made in such form as to admit the entire cause of action; but where a cause of action is in its nature divisible, and the defendant confesses it in part only, it is immaterial in what terms and in what Confederate currency as cash, manner the extent of the confession is lim"Cash." ited-it will not be construed to extend beConfederate treasury note as bill of yond those terms. Hackett v. B. C. & M. R. credit, see "Bill of Credit." "Confederacy (confederatio) is when two or more persons combine together to do any damage or injury to another, or to do any unlawful act." State v. Crowley, 41 Wis. 271, 284, 22 Am. Rep. 719; Watson v. Harlem & New York Nav. Co. (N. Y.) 52 How. Prac. 348, 353. CONFEDERATE. CONFEDERATE MONEY. see "Confederate money" was and is an obligation or a promise of the Confederate States to pay a certain number of dollars therein mentioned to bearer, in a specified time after a treaty of peace between the Confederate States and the United States. Co., 35 N. H. 390, 397, 398. As acknowledgment of guilt. A "confession," as defined in Black's Law Dictionary, "is a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstan ces of the act, or the share and participa- This direct confession is the highest confestion which he had in it." Spicer v. Common- sion which can be, and carries with it so wealth (Ky.) 51 S. W. 802, 803. strong a presumption of guilt that an entry on record, "Quod cognovit indictamentum," etc., in an indictment for trespass, estops the defendant to plead not guilty to an action brought afterwards against him for the same matter. State v. Oxendine, 19 N. C. 435, 437 (citing 2 How. 466 [B 2, c. 31, §§ 1, 2]). A "confession" is an admission or declaration, made by a party who has committed a crime or misdemeanor, of his agency or participation therein, and is generally restricted to acknowledgments of guilt. People v. Parton, 49 Cal. 632, 637; People v. Velarde, 59 Cal. 457, 461; People v. Le Roy, 4 Pac. 649, 650, 65 Cal. 613; People v. Ammerman (Cal.) 50 Pac. 15, 18; People v. Strong, 30 Cal. 151, 157; People v. Miller, 54 Pac. 523, 524, 122 Cal. 84; State v. Red, 4 N. W. 831, 835, 53 Iowa, 69; State v. Carr, 53 Vt. 37, 44; Territory v. Underwood, 19 Pac. 398, 400, 8 Mont. 131; State v. Carson (S. C.) 15 S. E. 588, 590; Mora v. People, 35 Pac. 179, 182, 19 Colo. 255; Taylor v. State, 37 Neb. 788, 796, 56 N. W. 623, 625; Johnson v. People (Ill.) 64 N. E. 286, 287. "Confession" or admission, in that sense, means something to the effect that the party himself had some criminal or questionable relation to the alleged crime. State v. Carr, 53 Vt. 37, 44. "A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope or the tortures of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit should be given it." Citing Eyre, C. B., in Warickshall's Case, 1 Leach, Cr. Cas. 299: "The important inquiry is whether the confession has been made under the influence of hope or fear brought to bear on the prisoner's mind by third persons. When these influences are direct and strongly made, the courts uniformly reject the confession, and this is especially so when made under arrest to the officer having the prisoner in charge or by other persons having authority." Territory v. Underwood, 19 Pac. 398, 400, 8 Mont. 131. A confession is rather a fact to be prov-. ed by evidence than evidence to prove a fact. It is not so much proof that a particular thing took place as it is a waiver by the party charged of his right to have certain facts alleged against him technically proved. Where defendants were on trial together, and neither defendant implicated himself in the statement made by him, such statements are not confessions. State v. Carson, 15 S. E. 588, 590, 36 S. C. 524. By confession is meant direct confession; where a person charged directly confesses the crime with which he is charged. Where the term "confession" is used in criminal law, it is generally restricted to an acknowledgment of guilt. Where words in themselves are consistent with the innocence of the party, and are therefore admissible in evidence, it is erroneous for the court to charge the jury as to the effect of a confession. Lee v. State, 29 S. E. 264, 265, 102 Ga. 221. without intimidation, threats, or inducement The confession made by an accused on the part of the officer of the law is admissible in evidence. State v. Berry (La.) 24 South. 329, 331. A confession is an admission made at any time by a party stating or suggesting that he committed that crime. Under such definition a statement made by the accused shortly prior to the homicide, on the accusation by the decedent of stealing his money, that she did not have his money, does not State v. Spillers constitute a confession. (La.) 29 South. 480, 481. A statement by defendant denying that he had stolen the money as charged, and accounting for his possession by claiming to have found it, is not a confession. People v. Ammerman, 50 Pac. 15, 18, 118 Cal. 23. A declaration by the person accused of crime, denying any criminal act, and explaining incriminating circumstances brought against him, to show his innocence of any crime, is not a confession. Mora v. People, 35 Pac. 179, 182, 19 Colo. 255. The statement by the accused, in an answer to the statement of an officer, that "this looks suspicious," "well, damned if it don't," is not a confession. People v. Hickman, 45 Pac. 175, 176, 113 Cal. 80. The common-law confession is practically the testimony of the accused given in open court, conclusively proving the facts in issue, and sufficient of itself to support conviction. State v. Willis, 41 Atl. 820, 824, 71 Conn. 293. Acts and admissions of one charged with criminal libel, tending to show his proprie torship of the paper in which the libel was published, are not confessions, in legal contemplation. People v. Miller, 54 Pac. 523, 524, 122 Cal. 84. The confession must be voluntary. It is well said that if induced by the flattery of hope or the torture of fear the confession is inadmissible. State v. Mills, 91 N. C. 581, 597. The confession of an infant, disclosing no fact pregnant with any circumstance to give it authority, or in any way to corroborate it, is a simple, naked confession, and when obtained from an infant under the age of 11 years by some degree of pressure, at least after a firm denial, ought not to have been admitted in evidence, and, if admitted, ought not to be ground of a conviction. State v. Aaron, 4 N. J. Law (1 South.) 231, 240, 7 Am. Dec. 592. Admission or declaration distinguished. The word "confession" is not the mere equivalent of the word "statement" or "declaration." Taylor v. State, 37 Neb. 788, 796, 56 N. W. 623, 625; People v. Miller, 54 Pac. 523, 524, 122 Cal. 84 (citing People v. Strong, 30 Cal. 151). A confession in criminal law is the voluntary declaration made by a person who has committed a crime or misdemeanor to another of the agency or participation which he had in the same. The term "admission" usually applied to civil transactions and to those matters of fact in criminal cases which do not involve criminal intent; the word "confession" relating to the acknowledgment of guilt and admission relating to the acknowledgement of fact. State v. Heidenreich, 45 Pac. 755, 29 Or. 381; State v. Porter, 49 Pac. 964, 966, 32 Or. 135; State v. Reinhart, 38 Pac. 822, 825, 26 Or. 466. Thus, the statements of the accused admitting that he purposely committed the homicide are, strictly speaking, confessions, though they embrace narrations tending to show or present an excuse for the killing. State v. Porter, 49 Pac. 964, 966, 32 Or. 135. So, where the evidence merely shows an admission of facts from which a conclusion of guilt might in a certain instance be drawn, the use of the word "confession" in a charge was erroneous. State v. Heidenreich, 45 Pac. 755, 29 Or. 381. the commission of the crime charged, do not constitute a confession. State v. Reinhart, 38 Pac. 822, 825, 26 Or. 466. There is a clear distinction between a confession and an admission or declaration, unless the admission or declaration has within it the scope and purpose of a confession, in which its distinguishing feature as an admission or declaration is lost in the broader term "confession." A confession is a voluntary admission or declaration by a person of his agency or participation in a crime. To make an admission or declaration a confession, it must in some way be an acknowledgment of guilt, and be so intended, for it must be involuntary. A mere admission or declaration by a defendant against his interests is not necessarily a confession, and this is true even though the admissions are criminating. A confession of guilt is an admission of a criminal act itself, and not an admission of a fact or circumstance from which guilt may be inferred. State v. Novak, 79 N. W. 465, 468, 109 Iowa, 717. The term "admission" is usually applied to civil action, and confession or acknowledgment of guilt in criminal prosecution. Where statements are made by a defendant to an officer, they may be received as an admission against interest, even though they might be regarded as a confession in a criminal court. Notara v. De Kamalaris, 49 N. Y. Supp. 216, 219, 22 Misc. Rep. 337. The word "confession" is not the mere equivalent of the word "statement" or "declaration." People v. Strong, 30 Cal. 151, 157; People v. Velarde, 59 Cal. 457, 461. As confidential communications. "Confessions," as used in Acts 1879, P. 245, providing that clergymen shall be incompetent to testify concerning confessions made to them in the course of disonly such confessions as are penitential in cipline enjoined by their church, includes their character, or were made to clergymen in obedience to some supposed religious duty A "confession" is a person's declara- or obligation, and do not embrace commution of his agency of participation in a crime. nications to clergymen, however confidential, The term is restricted to acknowledgments which were not made in connection with or of guilt. A confession is limited in its pre-in discharge of some supposed religious duty, cise scope and meaning to the criminal act or when made to them while in the discharge itself. It does not apply to acknowledgments of duties other than those which pertain to of facts merely tending to establish guilt, the office of a clergyman. Knight v. Lee, 80 since a damaging fact may be admitted with- Ind. 201, 203. out any intention to confess guilt. These are criminating admissions, rather than confessions. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. State v. Picton (La.) 25 South. 375, 377; State v. Reinhart, 38 Pac. 822, 825, 26 Or. 466; Taylor v. State, 56 N. W. 623, 625, 37 Neb. 788. The false entries in the books of a firm kept by the defendant, though they tend to prove 2 WDS. & P.-27 Wrongdoing implied. "Confess" has several different meanings, but is ordinarily used to characterize the admission of sin or wrongdoing, and such is its meaning when used in a newspaper statement that a person has made a confession to the district attorney of the entire affair. Gallagher v. Bryant, 60 N. Y. Supp. 844, 845, 44 App. Div. 527. CONFESSION AND AVOIDANCE. See "Plea of Confession and Avoidance." The expression "confession and avoidance" means the same as "new matter constituting a defense," used in many codes with reference to the answer. Finley v. Quirk, 9 Minn. 194 (Gil. 179, 187), 86 Am. Dec. 93. CONFESSION OF JUDGMENT. See "Offer to Confess Judgment." The phrase "confession of judgment" has a popular as well as a technical signification. As popularly understood, it signifies an acknowledgment of indebtedness, upon which it is contemplated that a judgment may and will be rendered. Kinyon v. Fowler, 10 Mich. 16, 18. Confession of judgment is the voluntary submission to the jurisdiction of the court, giving by consent, and without the service of process, what could otherwise only be obtained by summons and complaint and through formal proceedings. A person who confesses a judgment submits to be sued in that form and manner. The confession of a judgment is but one of the ways and processes, one manner, by which a person is sued. First Nat. Bank v. Garlinghouse (N. Y.) 53 Barb. 615, 619. CONFIDE. See "Wholly Confiding." A statute providing that physicians are not competent witnesses as to matters "confided" to them in the course of their profession, unless with the consent of the party making such confidential communication, does not mean that the knowledge which he has was obtained through statements by the patient under an injunction of secrecy, expressed or implied, but matters which he has learned by observation or by examination of the patient are matters "confided" to him within the meaning of the statute, and he cannot be compelled to testify concerning them without the patient's consent. Masonic Mut. Ben. Ass'n v. Beck, 77 Ind. 203, 209, 40 Am. Rep. 295. 1 Wag. St. 500, § 9, providing that if any guardian of any female under the age of 18 years, or any other person to whose care or protection any such female "shall have been confided," shall defile her, he shall be punished, etc., means that the other person alluded to should occupy a position similar to that of a guardian, or stand in some attitude in which a peculiar or contidential trust was reposed. It is not necessary that he should be the legal protector of the female, but it is essential that she should have been committed to his special care with the expectation that he should exercise a supervision over her; and hence a female who was allowed by her father to go and assist the defendant in laboring for one day was not specially confided to his protection and care within the meaning of the statute. State v. Arnold, 55 Mo. 89, 91. The word "confide," as used in a will, according to Perry on Trusts (volume 1, c. 4, § 112), in a clause that the testator confides in a legatee to make a certain disposition of the fund bequeathed, is a word of intention, which the court will carry into effect as if the testator had used an absolute word of devise in trust, and the court will direct the donee or first taker to hold as a trustee for those whom the donor intended to benefit. Cockrill v. Armstrong, 31 Ark. 580, 589. CONFIDENCE. See "Full Confidence." The word "confidence" is a word peculiarly appropriate to create a trust. It is, as applicable to the subject of a trust, as nearly a synonym as the English language is capable of. "Trust" is a confidence which one man reposes in another, and "confidence" is a trust. Appeal of Coates, 2 Pa. (2 Barr) 129, 133. The words "having confidence," when used in a will in which testator bequeaths certain property to certain beneficiaries, having confidence that they will use the property for certain purposes, have always been held by the courts not to impose any obligation or create any trust. Willets v. Willets (N. Y.) 35 Hun, 401, 407. "Confidence game," as used in Rev. St. Mo. 1889, § 2836, providing that every person who, with intent to defraud, obtains money or valuables by means of an instrument or a device commonly called the "confidence game," shall be deemed guilty of a felony, is not a charge of any specific offense, as the words are no expression of the nature and cause of the accusation against the defendant. State v. Cameron, 22 S. W. 1024, 1025, 117 Mo. 371. |