Robert E. Lee Folkes was convicted of murder in the first degree, having been tried by a jury which returned a verdict of guilty without recommendation, and judgment directing his execution was pronounced, and he appeals.

AFFIRMED. REHEARING DENIED.

BRAND, J.

Ensign Richard Floyd James received travel orders requiring him to go from Seattle, Washington, to Los Angeles, California. His wife, Martha Virginia James, was a passenger occupying lower berth 13, car D, train 15. She was unable to secure accommodations on the troop train which carried her husband, but they were informed that from Portland, Oregon, south, his car and hers would be in the same train. Train 15 was delayed en route with the result that her husband was not, as anticipated, a passenger on the train which carried Mrs. James from Portland toward Los Angeles.

On January 23, 1943, and near 4:30 A.M., someone entered Mrs. James' berth and cut her throat, severing a vein and an artery. Her screams aroused passengers in the car, three of whom saw the murderer, dressed in a long dark overcoat, rushing to the rear of the car. Two of the three actually saw him backing out of lower 13. Mrs. James had struggled into the aisle where she died a few moments later. The three witnesses, Wilson, Conner and Norton, were the only persons who saw the murderer at that time. They were unable to identify the defendant as the man seen departing from lower 13.

In fleeing from car D, the murderer went toward the dining car which was immediately to the rear of car D. The defendant, Robert E. Lee Folkes, was second cook on that dining car.

Shortly before 4:25 A.M. the defendant, Folkes, was in the smoking room of car D where he talked with Hughes, the porter. He was then dressed in a white coat. Marjorie Wasserman, an occupant of car D, saw a colored man dressed in a white uniform enter that car before the train left Portland and talk with Mrs. James. She made no positive identification of the defendant, but testified, "he looks like the one." Witness Wilson, a United States Marine, testified that after the murder he searched all cars to the rear of car D and that in the process of the search, he entered the kitchen where he found the defendant. The defendant told him that he had been there for about twenty minutes. Wilson testified that "beads of perspiration were forming on his [defendant's] forehead and starting to run down his face." Wilson described the kitchen as cool, but other witnesses testified that the fires were burning.

The evidence discloses that it was the defendant's duty to arise at 4:30 A.M. on January 23 and prepare the kitchen for the day's work. Witness Kelso, the occupant of upper berth 11 of car D, testified that on January 23 he rose between four and five in the morning and descended to the aisle with the intention of going into the men's room to shave, but headed in the wrong direction. While in the aisle, he encountered a colored man who directed him to the men's room. He could not identify the defendant as the man. Witness Clarence W. Champlin testified that when the train reached Klamath Falls, the defendant and witness Kelso were brought together and the defendant admitted that he was the person who had shown Kelso the way to the men's room in car D.

The importance of the foregoing evidence to which reference will later be made lies in the fact that it corroborates various portions of the admissions and confessions of the defendant. The remaining testimony relates largely to the alleged admissions and confessions of the defendant and to the circumstances under which they were made.

The defendant presents three assignments of error and no more. By the first assignment, it is asserted that the court erred in permitting the state to introduce into evidence exhibits K and L which were transcribed stenographic notes of conversations with the defendant wherein the defendant confessed his guilt in great detail.

The second assignment is that the court erred in receiving in evidence oral admissions of the defendant for the reason that the purported oral admissions were not spontaneous and were involuntarily given.

The third and last assignment is that the court erred in refusing to give defendant's requested instruction to the effect that the oral admissions of a party should be viewed with caution.

We will now consider the first assignment of error. In the course of the State's case, the prosecution announced its intention to offer in evidence "admissions or confessions of the defendant." After prolonged examination of witnesses in the absence of the jury, the court held that the statements were voluntary and they were received in evidence.

Witness Nancy Lyman, secretary of the Homicide Bureau in Los Angeles, testified that she was present at the city hall in Los Angeles at about 10:00 A.M., January 27, 1943, when the defendant made a statement. She testified without impeachment or contradiction that there was conversation between the defendant and Lieutenant Tetrick and Captain Rasmussen, both officers of the Los Angeles police force. She testified that she accurately took down, in shorthand, the conversation which she heard and accurately transcribed her notes and that exhibit K was the transcription of them. She also testified, "I can't remember verbatim what I heard." The defense objected to the receipt of exhibit K specifying, among others, the following grounds: that the statement was not signed; and "* * * that the only manner in which that statement could possibly be used in a trial of a cause before this court is to refresh the witness' memory as a memoranda to refresh her memory. The defendant has no manner at all of cross-examining that statement." The objections were overruled.

It is important to note that the statement was taken on the morning of January 27. The record discloses that on the evening of January 26, defendant had made a full verbal confession to officers Tetrick and Rasmussen. Exhibit K contains not only a confession, but a ratification of the one which was made the preceding evening. The statement commences with questions by Lieutenant Tetrick, as follows:

"Q. Bob, do you want to tell the same story you told last night about the killing?

"A. Yes.

"Q. You want to tell anything?

"A. I made my statement last night. That is okay, it stands like it is."

The State contends that exhibit K is a confession of the defendant and not a mere memorandum of the witness and that, being a written confession, it was admissible in evidence if voluntarily made, although unsigned by him. The State relies in part upon Wharton's Criminal Evidence, Vol. 2, 11th ed., § 582, wherein the author says: "Nor is it necessary that it [the confession] should be signed by the accused."

We do not hold that a confession to be admissible must always be signed by the defendant, but we do hold that before an instrument can be deemed admissible as the written confession of the defendant, he must in some manner have acquiesced in the correctness of the writing itself. A writing not signed, or not thus approved by the defendant, is not per se his confession. 22 C.J.S. § 833, 1455; Mason, Ehrman and Company v. Estate of Ben P. Lewis, 131 Or. 242, 276 P. 281, 281 P. 123, 282 P. 772; State v. Edmunson, 120 Or. 297, 249 P. 1098, 251 P. 763, 252 P. 84; Hall v. Brown, 102 Or. 389, 202 P. 719; Susewind v. Lever, 37 Or. 365, 61 P. 644; Friendly v. Lee, 20 Or. 202, 25 P. 396; 125 A.L.R. 65 (note).

Although a broader rule is suggested in Prather v. State, Oklahoma, 137 P.2d 249; Bosko v. People, 68 Colo. 256, 188 P. 743; and People v. Reed, 333 Ill. 397, 164 N.E. 847, we are not disposed to extend the rule beyond the boundaries indicated by our earlier decisions.

Upon its face, exhibit K indicates that the defendant made a consistent, convincing and voluntary verbal confession of guilt, but that is not to say that the instrument itself is a confession. If it were written by him or bore his signature, upon preliminary proof of its voluntary character, the instrument would have been admissible as a written confession, or if it had been shown to or read by him and had been acquiesced in by him as correct, the same result would follow. But the defendant never saw, heard, wrote or signed the instrument. It was error for the court to receive it in evidence as such and to send it to the jury room with the other exhibits.

It will be recalled that the witness Lyman testified that she wrote down what she heard, but said, "I can't remember verbatim what I heard." This presented a typical case of a memorandum which, upon proper foundation laid, could have been used to refresh the recollection of the witness. O.C.L.A. § 4-707.

It was highly desirable that the jury should know not only the substance of the defendant's statements, but his exact words. The witness testified that she could not remember them and even if she had not so testified, it is almost inconceivable that any stenographer could have reproduced the statement from memory. At this point, counsel should have followed the usual routine and asked the witness if by examining the transcribed notes her recollection would be refreshed. If she had answered in the affirmative, she would have been permitted to use the notes and from them to testify as to the exact questions asked and answers given. If, on the other hand, her answer had been that she retained no recollection of the particular facts, she would, under our statute, have been permitted to read her notes to the jury. Mount v. Welsh, 118 Or. 568 at p. 590, 247 P. 815; and see State v. Bartmess, 33 Or. 110, 54 P. 167.

We can find no tenable objection to the substance of exhibit K. Every part of it was proper for the consideration of the jury. The technical error relates solely to the manner in which it was brought to their attention. It was received in evidence as an exhibit. It was, in fact, a memorandum. As an exhibit, the jury saw it and heard it read by the district attorney. As a memorandum the jury would not have seen it, but would have heard it read. The reading would have been by the witness on the stand instead of by the district attorney. The identical confession would have been before the jury with this difference: it would have been proven as an oral confession by the refreshed recollection of the stenographer who took it down or as a memorial of lost recollection, instead of being proven as a written confession in and of itself.

Assuming that the admission of exhibit K in evidence constituted error, the following cases, though not exactly in point, do indicate that the error was not prejudicial: State v. Foulds, 127 N.J. Law 336, 23 A.2d 895 (where the New Jersey court goes beyond the position we have taken); State v. Lustberg, 11 N.J. Misc. 51, 164 A. 703; and State v. Donato, 106 N.J. Law 397, 148 A. 776.

If the exhibit had been properly used to refresh the recollection of the witness and the jury had demanded the right to inspect it, we have the authority of Professor Wigmore that they would have been entitled to see as well as hear it. This is a matter of significance when we are considering whether the receipt in evidence was prejudicial. Speaking of memoranda used to refresh recollection, the learned author says:

"That the offering party has not the right to treat it as evidence, by reading it or showing it or handing it to the jury, is well established. That the opponent may do this, or that the jury may of its own motion demand it, is equally conceded." 3 Wigmore, Evidence, 3d ed. § 763, p. 112.

The most that we can say is that Exhibit K approaches the very verge of admissibility as a written confession. By the last sentence of the exhibit, it appears that defendant said, "as long as she has it down and I read thoroughly and understand, I will be willing to take the medicine which the killer should take." This was not the adoption of the instrument as his written confession, for it had not yet been written, but it was a manifestation that he would adopt it if it was properly taken down and if he should read and understand it.

Again, Captain Rasmussen testified:

"After the confession was written up, he offered to sign it and we told him we didn't want him to sign it at that time, and we would wait until the officer from Oregon came down, and he could sign it in his presence and obviate the necessity of us coming up here to testify."

We are not sure whether the captain meant that the offer to sign was made after the transcript was written up, or merely meant that defendant offered to sign it when at a later time it should be written up. Which meaning was intended is of no importance for, in fact, the defendant did not see or sign, but the undisputed testimony of the captain is relevant to show that the confession was voluntarily made and that defendant, at a time when the memory of his conversation was fresh, was willing to sign it and thereby adopt it as his own. Although the distinction may be a narrow one, we think that technical error was committed. We shall postpone the statement of our conclusion as to whether the error warrants a reversal of the judgment until we have reviewed other portions of the evidence.

The defendant was returned to Albany, Oregon, and on January 31 another statement was taken before Kathleen K. Miller, court reporter. This statement was also taken in the form of questions and answers in the presence of Dr. Joseph Beeman, Lieutenant Ray C. Howard of the Oregon State Police, District Attorney Weinrick and Mrs. Miller. The court again heard prolonged testimony in the absence of the jury concerning the voluntary character of defendant's statements and held them to be voluntary. The accuracy of the court reporter's shorthand notes and of her transcription thereof was proven and is unquestioned. The transcript containing questions and answers was, as in the case of exhibit K, unread and unsigned by the defendant. It was also received in evidence as exhibit L and went to the jury. Exhibit L contained forty seven pages and it is obvious that no reporter could have recollected the exact statements of the defendant without consulting the transcript for the purpose of refreshing memory. Here again, however, the prosecution omitted the usual questions which would have permitted the exhibit to be employed either to refresh memory, or as a record of lost memory. Our comments upon exhibit K are also applicable to exhibit L and its receipt in evidence also constituted technical error. Like exhibit K, exhibit L contains the direct, detailed confession by the defendant that he murdered Mrs. James.

The second assignment of error is based upon the defendant's claim that the purported confessions were not spontaneous and were involuntarily given. This assignment rests upon four contentions which are urged by the defendant: first, that the statement was rendered involuntary by reason of long hours of questioning; second, by reason of the failure to take the defendant before a magistrate in violation of his alleged constitutional rights; third, failure to give him the benefit of counsel; and fourth, because whiskey had been purchased for the defendant by the California police officers. Before considering these specific contentions, it is well to bear in mind the tests which have been applied by this court and which are firmly established in our law for the determination of the voluntary character of a confession.

A confession, even though made to police officers and while in custody, is admissible if not induced by fear, violence, threats, or promises of reward or immunity, and this is true although the accused may not have been cautioned that his statement might be used against him or advised as to his legal rights. State v. Moore, 124 Or. 61, 262 P. 859; State v. Butchek, 121 Or. 141, 253 P. 367, 254 P. 805; State v. Stevenson, 98 Or. 285, 193 P. 1030; State v. Wilder, 98 Or. 130, 193 P. 444. The character of inducement which will render a confession involuntary is well stated in the case of State v. Green, 128 Or. 49, 273 P. 381. In that case, the court, speaking of a confession, said:

"* * * The only fair test, if such it may be called, which can be applied is this: Was the inducement held out to the accused such as that there is any fair risk of a false confession, for the object of the rule is not to exclude a confession of the truth but to avoid the possibility of a confession of guilt from one who is in fact innocent: * * *."

Applying the tests as this court has always interpreted and applied them, we hold that the evidence discloses that the statements of the defendant were not induced by threats, fear, violence, promises of immunity or hope of reward, and were therefore voluntary. The testimony to this effect is repeated, unimpeached, uncontradicted and is supported not only by the testimony of the two reporters who took exhibits K and L, but by that of the officers who questioned the defendant and it is confirmed by testimony concerning the admissions of the defendant himself. For example, Officer Kirk of Oregon testified:

"A. * * * I asked Mr. Folkes how the police department treated him down there, and he told me alright.

"Q. Did he make any complaint to you of any nature about the treatment that he had received in Los Angeles?

"A. He did not."

The fact that the defendant confessed is established not only by exhibits K and L and by the testimony of the officers, but also by that of Jessie Wilson, the defendant's so-called common law wife.

We turn to the contentions of the defendant by which he claims that the defendant's statements which were voluntary in fact and under our decisions should now be held to be involuntary in law. First, we consider the objection that the defendant was subjected to long hours of questioning. The testimony of Lieutenant Tetrick and Captain Rasmussen concerning the questioning at Los Angeles is in substantial harmony upon the matter of time. It discloses that the defendant arrived at the Union depot, Los Angeles, at 8:30 A.M. on January 25. He was taken to the city hall and questioned, but not continuously, until 11:00 A.M. He was again questioned between 2:00 P.M. and 4:00 P.M., but not continuously. During this period Jessie Wilson visited him at the city hall for twenty or thirty minutes. There was no further questioning that day. On January 26 he was questioned between the hours of 10:00 A.M. and 2:30 P.M., but by no means continuously, for within that period he was again permitted to visit with Jessie Wilson alone for about an hour and a half. He was again questioned between 4:00 P.M. and 7:00 P.M. During a part of this time, Jean Bechtel, a stenographer, was present and took the conversation in shorthand. Her notes, to which reference will later be made, were transcribed and were offered in evidence at the trial as defendant's exhibit 2. The questioning between 4:00 P.M. and 7:00 P.M. was not continuous.

The next occasion on which the defendant was questioned was at Jessie Wilson's house. In the early evening the defendant had asked to talk to Captain Rasmussen alone. The request was granted and defendant and Rasmussen conversed alone for about fifteen minutes during which time defendant repeated his earlier request that he be taken to Jessie Wilson's home. Captain Rasmussen, Lieutenant Tetrick, and the defendant arrived at the home of Jessie Wilson at about 7:15 P.M. There were several people present. Jessie Wilson was in bed. The two officers and the defendant entered her bedroom where the defendant talked with her. The defendant asked to be permitted to stay with her an hour, to which the captain agreed. During this period, the undisputed evidence discloses that the defendant made his first voluntary oral confession in the presence of the officers after which he took a drink of whiskey, had a meal of pork chops, greens, bread "and some other stuff." After waiting about an hour, his mother arrived to see him. The officers then drove his mother to her home and returned the defendant to the city hall where he was met by Dr. DeRiver who examined him for fifteen or twenty minutes. They arrived at the city hall at 9:45 in the evening.

The next questioning took place on Wednesday, January 27, "about nine or ten o'clock in the morning." He was first taken to the office of Captain Rasmussen where he remained for five or ten minutes. He was then brought to room 42. Nancy Lyman, the stenographer, took the conversation in shorthand. The notes were transcribed and are in evidence as exhibit K. The questioning on this occasion occupied about an hour or an hour and a half. After the written statement was completed, the stenographer left the room and Finneran and Tetrick were alone with the defendant. The defendant was asked:

"Bob, why did you kill that girl; why did you get in the berth with her?"

and he said,

"Why, I saw her standing there and she looked like my type of woman and I just couldn't get her off my mind."

Thereafter, Dr. DeRiver gave the defendant a physical and mental examination in the presence of Finneran and Tetrick. The exact hour when the examination ended is not disclosed, but after the doctor had completed it, the defendant was taken to the Southern Pacific commissary so that he could get his wages and was then taken to the Southern Pacific yards where he cashed his check and was then taken out to lunch at about 1:30 or 2:00 P.M.

The next questioning took place on Thursday morning, January 28, at about ten o'clock on which occasion they showed him some knives which he examined and said, "It was none of them."

On January 29 he was taken to the hall of justice in connection with his extradition to Oregon. At that time the defendant stated that he had an attorney by the name of Gleason who had advised him to sign no extradition papers unless the attorney was present. Tetrick then searched for and found Gleason who advised the defendant, and the defendant then signed the waiver. The above constitutes a statement of the entire period within which questionings occurred so far as the record discloses.

We turn now to the examination of the defendant by the Oregon officers after he reached Albany. On February 2, at the Linn County jail, Dr. Lew Hurd gave the defendant a physical examination. It does not appear that any questions were asked him by the doctor. He was found to be in sound physical condition.

On January 31 the defendant was questioned intermittently between 3:20 P.M. and 10:15 P.M. During a portion of this time, Kathleen Miller, the court reporter at Albany, Oregon, was present and took the conversation in shorthand which was later transcribed and offered in evidence as exhibit L. Lieutenant Howard advised the defendant that any statement he made would be used against him in criminal proceedings. The uncontradicted testimony shows that the statements made to officers Howard and Beeman and District Attorney Weinrick were voluntary. There was evidence in the preliminary hearing before the judge in chambers that the defendant was fed between 2:00 P.M. and 3:00 P.M. The examination during the period mentioned was not continuous. We hold that none of the confessions of the defendant were rendered involuntary or inadmissible by reason of the length of the periods of questioning or the manner in which it was done.

We have given careful consideration to the recent decision of the United States Supreme Court in the case of Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, decided May 1, 1944. That case was brought to the attention of this court by a petition for rehearing in State v. Layton, 174 Or. 148 P.2d 522, decided April 25, 1944. In the Layton case, the questioning of the defendant covered a much longer continuous period than in the case at bar. We considered Ashcraft v. Tennessee inapplicable and the petition for rehearing was denied.

Ashcraft had been convicted in the Tennessee court for the murder of his wife. The conviction was based upon evidence of a confession made after he had been questioned continuously for thirty-six hours during which time he was confined in a room under high powered lights without rest or sleep and during which time he was given but "a single five-minute respite" from "one continuous stream of questions." In the Ashcraft case, though the trial court heard evidence in the absence of the jury it did not determine from the evidence that the confession was voluntary, but only held that reasonable minds might differ on that issue and so received the confession in evidence. While in reaching its conclusion the Supreme Court did "not resolve any of the disputed questions of fact" as to what transpired during the thirty-six hours, or as to whether Ashcraft ever did confess, it was obviously influenced by the fact that there was conflicting evidence. There was testimony that the defendant was threatened and abused; that he became blinded by the light, his body weary and the strain on his nerves unbearable. The evidence was also conflicting as to whether defendant ever made a confession. The court held that the situation was "inherently coercive" and that the receipt in evidence of the confession was a violation of the due process clause of the United States Constitution. The court repeatedly referred to the "excellent reputation" of the defendant and his happy and successful home life, though what those factors may have to do with the question of procedural due process of law in obtaining a confession, we do not know. We had supposed the constitutional guarantees of fair trial applied to high and low without distinction.

The differences in degree and kind between the Ashcraft case and the one at bar are clear. Here there was no unduly prolonged period of questioning, no bright lights, no late night sessions, no conflict of testimony as to the making of confessions, no conflict as to their having been voluntarily made, no evidence of threats or abuse. Here, also, under our state procedure which was followed by the trial judge, the voluntary character of the confession was inquired into by the court in the absence of the jury. All evidence offered by either party was considered and the court held the confessions were voluntary. The same issue was again fairly submitted to the jury and it is clear from their verdict that they must have found that defendant had voluntarily confessed the crime. The startling aspect of the Ashcraft case is not to be found in its disapproval of the methods employed in securing a confession, but inheres rather in the fact that the decision is placed upon constitutional grounds which further restrict the exercise of independent judgment by the courts of the various states. We do not condone such conduct as that reported in the Ashcraft case. Irrespective of constitutional limitations and upon the principles of the common law, the conduct of the officers in the Ashcraft case constituted potent evidence of duress which required serious consideration by both the trial judge and the jury, along with the other evidence, in passing upon the voluntary character of the confession. Such misconduct could have warranted the trial judge in finding that a confession so obtained was, in fact, involuntary and inadmissible without reliance upon any rule of law that the confession was inherently coercive or in violation of a constitutional mandate. The Ashcraft case, being upon constitutional grounds, would bind this court if in point, notwithstanding the vigorous and highly persuasive dissent of Justices Jackson, Roberts and Frankfurter. But it is clearly distinguishable.

Defendant contends that his confessions were obtained in violation of constitutional right by reason of the fact that he was subjected to "questioning by numerous police officers" without being first taken before a magistrate. In support of this contention, he cites only McNabb v. United States, 318 U.S. 332, 87 L.Ed. 819, 63 S.Ct. 608. That case holds inadmissible a confession obtained by a peace officer who failed to take the arrested person before a committing magistrate within the time required by the federal statute. That case together with Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829, expanded the common law exclusionary rules as far as federal practice is concerned, but the Supreme Court expressly renounced the idea that the decision was based upon constitutional grounds. The court said:

"In holding that the petitioners' admissions were improperly received in evidence against them, and that having been based on this evidence their convictions cannot stand, we confine ourselves to our limited function as the court of ultimate review of the standards formulated and applied by Federal courts in the trial of criminal cases * * *."

The decisions were based on the supervisory authority of the Supreme Court over the administration of criminal justice in the federal courts. The decision was not intended as a constitutional limitation upon the powers of the courts of the several states. The court said:

"* * * Moreover, review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction * * *."

To that case we have given respectful consideration as a precedent, though not a binding one. We find it distinguishable from the case at bar and out of harmony with the law of this jurisdiction. See 42 Mich.L.Rev. No. 4, p. 679, Feb. 1944 and United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; Fry v. State, (Okla.) 147 P.2d 803; State v. Browning, (Ark.) 178 S.W.2d 77; 3 Wigmore, Evidence, (3d ed.) § 851 at p. 319.

Notwithstanding the recent extension of the boundaries of procedural due process by the United States Supreme Court as at present constituted, we cannot believe that it will go to the extreme length of holding that one is deprived of due process of law whenever illegally obtained evidence is received against a defendant in a criminal trial. To do so would be to overrule upon constitutional grounds hundreds of decisions by many state courts of last resort which have adhered to the "orthodox rule." 8 Wigmore on Evidence, §§ 2183 and 2184. Even if the Supreme Court should venture to that unprecedented extent, it would not follow that any constitutional right would be invaded by the reception in evidence of a confession if the sole objection to it was that the confession was obtained before the defendant was taken before a magistrate. When evidence is seized by an illegal search, the illegality is the immediate and proximate cause which produces the evidence, but when the illegality, if any, consists merely in questioning the defendant, having failed first to take him before a magistrate, the confession, if voluntarily made, is only remotely, if at all, connected with the fact that the officer disobeyed the statute. It must be remembered that at least one of the purposes of a criminal trial is to bring murderers to justice. We have examined all of the decisions cited in the McNabb case and find none of them controlling here. There is no support in the record for the contention that the defendant was threatened with mob violence or was influenced by any fear of it.

It is contended that defendant was not given the benefit of counsel. The evidence discloses that the defendant employed counsel and had the benefit of legal advice while in Los Angeles. It does not appear when he first consulted counsel. There is no evidence that he was ever refused the right to legal advice and on at least one occasion the officers diligently sought for and produced his attorney that he might have further advice.

Lastly, it is contended that the confession was involuntary because whiskey was purchased for the defendant by the California officers and because he was intoxicated at the time of his confession. The facts are as follows: On January 25, in Los Angeles, the defendant said to officer Tetrick, "Will you take me out to my house and let me talk to my wife, get me a drink of whiskey and let me have something to eat and I will tell you more about this case." At that time the officer refused. Again, on January 26, he made the same request, on this occasion to Captain Rasmussen. It was finally agreed that he should be taken to the home of Jessie Wilson. On the way, the defendant said, "Are you going to get me a drink?" The defendant gave Tetrick a dollar and Tetrick, at his request, purchased some whiskey for ninety-nine cents. Captain Rasmussen took possession of the bottle. The testimony of the two officers is as follows:

Upon the arrival at the home of Jessie Wilson, she was found in bed. They entered her room and defendant asked if he would be permitted to stay an hour, to have a drink of whiskey and something to eat. The answer was in the affirmative. Defendant then said, "Now you want me to tell you about the killing?" He then proceeded to make a full and complete confession to the two officers, no stenographer being present. The officers testified that the whiskey bottle was not opened until after the foregoing confession had been made, the bottle having remained unopened in the possession of Captain Rasmussen until that time. After the confession, defendant asked for a drink and the captain took the bottle out of his pocket and handed it to him. Defendant and Jessie Wilson both took a drink. Defendant said, "Go ahead and have a drink; this is maybe the last one you will have with me, Baby, I am a killer and I am going to take my medicine."

After the confession and after the defendant had taken two drinks, the defendant's mother called him on the telephone. The officers testified that the defendant said to her, on the phone, "What you read in the papers is true, and I am the murderer." His mother indicated a desire to see him and the officers agreed to wait until his mother arrived.

We come now to the only testimony which to any extent contradicts the evidence of the officers concerning the substance and circumstances of the confession at the home of Jessie Wilson. Jessie Wilson testified concerning the same occasion, as follows:

"Q. Will you tell the jury the condition the defendant was in at the time you saw him?

"A. Well, he was very intoxicated and looked very bad and looked as though he was beaten and his face was swollen.

"Q. Did you see him have any intoxicating liquor in your presence.

"A. Yes, sir.

"Q. Tell the jury just what occurred when they brought the defendant out there.

"A. Well they just came in so he could say he came out to see me. He took a drink and he asked them if they was ready to take it down, and they took it down on paper.

"Q. Keep your voice up.

"A. He asked them if they were ready to take down the confession, and they said they were, and he drank the liquor, and they took down the confession.

* * *

"Q. Were any demonstrations conducted there? I refer to any demonstration upon your body in any manner whatsoever.

"A. No."

Witness Jessie Wilson identified a picture of her apartment and that was substantially all of her testimony. It will be observed that at no time did she state when he took the first drink, or whether he appeared intoxicated at any time until after the confession and that she herself verifies the testimony to the effect that a confession was made. It is true that she said "he drank the liquor and they took down the confession." The statement is literally true, but it is not the equivalent of saying that they took down the confession after he had drunk the liquor. The matter was not clarified either in direct or cross-examination.

Defendant's mother testified that the defendant was intoxicated when she reached the house. The undisputed evidence is to the effect that she did not arrive until after the confession and until after the defendant had taken several drinks of whiskey and had eaten a meal. Her testimony contains, and could contain, no contradiction of the essential portion of the account given by the officers, but Mrs. Folkes did testify that the defendant did not at any time tell her that he had killed or murdered anybody.

Upon the return of the defendant to the jail he was examined by Dr. DeRiver who said it was apparent that he had had a drink, but was not intoxicated. Under these circumstances, we think that the confession voluntarily given to the officers and verified by them and by Jessie Wilson was admissible in evidence. This was not a case of plying the defendant with liquor, the whiskey being bought at defendant's request with defendant's money and delivered to him only after the confession had been made. There was nothing in the conduct of the officers which would have a tendency to induce the defendant to make a false statement. There is no evidence that the defendant was permitted to have any liquor at any other time after his arrival in Los Angeles.

We are of the opinion that the verbal testimony as to what the defendant said in Albany so far as it pertained to Mrs. James' death was admissible and that the second assignment of error lacks merit. The evidence that defendant's confessions were, in fact, voluntarily made is so clear, conclusive and uncontradicted that we will not encumber the record by quoting the testimony. Under these circumstances, the confessions constitute the highest sort of evidence.

The defendant never took the witness stand at the trial. He had a right to refrain from testifying and, under a harsh rule of our law, the prosecution was prohibited from commenting to the jury on the significant fact that the defendant, who knew the truth, had failed to testify. We venture no inference that the defendant's failure to testify indicated his guilt, but the fact remains that by reason of his failure to testify or to produce any other evidence in contradiction of the confession, the testimony of the witnesses for the State is in every substantial particular unimpeached and uncontradicted, except as stated. (The exception refers to the testimony of Jessie Wilson and defendant's mother, supra.) Concerning the undue limitations imposed by the law upon the admissibility of confessions, Professor Wigmore writes as follows:

"* * * The spirit that thus tended to prevail in the law has been properly described `as a weak sentimentalism towards criminals', and it assuredly had unfortunate results. * * *" 3 Wigmore, Evidence, 3d ed. § 865, p. 352.

Many authorities characterize confessions as the highest evidence known to the law; some hold them to be of little weight. 22 C.J.S., § 843, p. 1479. Wigmore has stated the principle which harmonizes the apparently conflicting decisions, as follows:

"This seems to be the simple explanation of the apparently contradictory views; if we distinguish the confession as evidence from the evidence of the confession, we find that few have ever really doubted that the first is in itself of the highest value, while the second is always to be suspected." 3 Wigmore, Evidence, 3d ed. § 866, p. 358.

Again, he says:

"Now, assuming the making of a confession to be a completely proved fact — its authenticity beyond question and conceded, — then it is certainly true that we have before us the highest sort of evidence. The confession of a crime is usually as much against a man's permanent interests as anything well can be; and, in Mr. Starkie's phrase, no innocent man can be supposed ordinarily to be willing to risk life, liberty, or property by a false confession. Assuming the confession as an undoubted fact, it carries a persuasion which nothing else does, because a fundamental instinct of human nature teaches each one of us its significance." 3 Wigmore, Evidence, 3d ed. § 866, p. 357.

In the case at bar, the making and the authenticity of the confessions is established beyond any reasonable doubt. But for one statement by defendant's mother who denied that he confessed to her, the testimony is wholly uncontradicted. Counsel for the defendant has not had the temerity to suggest that the defendant is innocent. He stands upon the unsubstantial ground of technical error. In a case where the issue related to the penalty to be imposed on a plea of guilty, it was said:

"It is not urged that the defendants are not guilty or that their voluntary written confessions — the highest order of proof known to the law — are not true in every particular. These confessions alone were amply sufficient to sustain the death penalty." People v. Popescue, 345 Ill. 142, 177 N.E. 739, 77 A.L.R. 1199 at p. 1210.

The third and last assignment of error is that the court erred in refusing to give defendant's requested instruction to the effect that oral admissions of a party should be viewed with caution. We think that the requested instruction should have been given, but this court has held that the matter of giving the cautionary instruction relative to oral admissions of the party rests within the sound discretion of the trial court. Fitze v. American-Hawaiian Steamship Co., 167 Or. 439, 117 P.2d 825; Arthur v. Parish, 150 Or. 582 at p. 591, 47 P.2d 682.

The circumstances in the case at bar must have strongly appealed to the trial court in the exercise of its discretionary power. When the cautionary instruction is given by the trial courts, it is the practice to explain to the jury the reason for the caution, namely that there is a risk or at least a possibility that witnesses testifying to the verbal admissions of a party may not have accurately remembered and exactly reported the admissions. This element of uncertainty was removed when expert stenographers took down in shorthand a verbatim report of questions and answers in the case at bar. Prather v. State, supra. The accuracy of their work is in no way challenged. Their credibility is in no way impeached. When we add the further fact that numerous witnesses testified to the substance of exhibits K and L and that their testimony is undenied, we find persuasive ground for holding that the failure to give the cautionary instruction was not prejudicial error. Furthermore, while the defendant made some isolated statements which amounted to admissions against interest, but did not rise to the dignity of a confession, the truth is that substantially all of the damaging statements made by the defendant, and which were admissions against interest, also constituted parts of a connected story repeatedly told by the defendant and which were, in the eyes of the law, confessions of guilt. While the trial court did not expressly mention admissions as distinguished from confessions, it ably instructed the jury as to their duties, advised them of their right "to scrutinize the manner in which a witness testifies, the facts which may influence in one way or another, the interest which the witness manifests in the outcome of the case," and gave full and fair instructions, placing the burden of proof upon the State, stating that "all of the presumptions of the law, independent of the evidence, are in favor of the defendant." Furthermore, the court, without referring specifically to either admissions or confessions, carefully instructed the jury with reference to evidence of "statements claimed to have been made by the defendant and which statements, in part, are relied upon to establish defendant's guilt." The jury were fully instructed that before such "statements" could be considered in evidence, it must appear that they were voluntary and not procured or induced by promises, directly or indirectly made, or as the result of force, fear, oppression or coercion. Under these circumstances, the third assignment presents no ground for reversal of the judgment.

It is argued that there are discrepancies between the statements of the defendant as reported by the officers and as they appear in exhibits K and L. The inference is drawn that these discrepancies are the result of faulty testimony by the witnesses. The defendant himself admitted making inconsistent statements and contended that in some particulars his memory was not clear. It seems to us improper to assume that minor discrepancies are those of the officers who reported his statements rather than of the defendant who made them. While minor discrepancies do exist, there is no substantial inconsistency in any of the statements of the defendant as repeated by the witnesses or as incorporated in the exhibits. The chief difference between the verbal testimony and exhibits lies in the fact that some statements were contained in the exhibits which do not appear in the verbal testimony of the officers and that there are some statements in the verbal testimony of the officers which do not appear in the exhibits. This was of necessity true. The memory of the officers could not be as detailed as the verbatim report of the stenographers and the officers testified to numerous statements made by the defendant when no stenographer was present. Witness Howard testified at considerable length concerning what he characterized as discrepancies in the various statements of the defendant, none of which, however, were inconsistent with the full and detailed confessions of guilt.

It is urged upon us that the evidence, especially exhibit L, tends to show other misconduct of the defendant not relevant to the issue before the jury. We first observe that there is no assignment of error which raises that question. The bill of exceptions contains no reference thereto and there is not a word in appellant's brief which raises that issue. Rule 2 of this court provides in part:

"No alleged error of the circuit court will be considered by this court unless regularly presented in the assignments of error contained in the appellant's opening brief, except that this court reserves the right to take notice of an error of law apparent on the face of the record. * * *"

In our view of the record the interests of justice do not require that we take notice of the alleged error upon our own initiative; however, in view of the gravity of the charge, we will consider the contention. Part of the objectionable matter is found only in exhibit 2, a transcription of notes taken in Los Angeles on January 26 prior to any confession and it was offered in evidence by the defendant. That statement discloses that the defendant had taken at least ten drinks of liquor during the afternoon and night of the murder. It was in that statement that the following was made to appear:

"A. I don't never have no hard feelings toward anybody, but if I drank whiskey and somebody messed with me —

"Q. Would you say that white woman messed with you on Central Avenue?

"A. She stopped me. She was already banged up. She told me that story.

"Q. Another time you went into a strange house and unlocked the screen door and went to bed?

"A. That was a lady friend of mine on 24th and Evans."

The chief contention on this phase of the case relates to portions of exhibit L which, it is claimed, tend to prove other misconduct or crime by the defendant. We will first summarize those portions and then consider their effect. Exhibit L indicates that defendant was asked if he ever killed anyone else on a car; if he ever got in a berth with a woman on a train, put a knife to her throat and threatened to cut her throat if she didn't lie still; and if he didn't have sexual intercourse with a woman on the train. Defendant was also asked if he wanted to have sexual intercourse with Mrs. James. To all of these questions the defendant answered in the negative. As to the foregoing matters, there was no evidence, but only questions which sought evidence, though the questions may some of them have been improper. Ordinarily, the mere offer of improper evidence is not reversible error. State v. Humphries, 350 Mo. 938, 169 S.W.2d 350. Exhibit L discloses that the defendant told of becoming angry with "a mere school girl" on returning from a dance where she had flirted with another man and that he contemplated hitting her, but did not. It is also claimed that the following portions of exhibit L tended to indicate other offenses and under the well known rule should have been excluded:

"Q. Do you think you would do it again?

"A. If I was to get drunk. I never would do it like that.

"Q. How would you do it the next time.

"A. If I got too drunk — if I got to drinking around in a party — if I was out with a girl or something like that, I know that is what I would do. * * *

* * *

"Q. Whenever you have too much to drink you have a desire to kill, is that right?

"A. I guess so because my wife told me about a month ago, first and last she expected me to kill somebody.

"Q. Why did she tell you that?

"A. I didn't try to find out; I left, but I said, `Maybe it will be you.'"

Defendant also stated that on one occasion his "wife" stabbed him with an ice pick and he knocked her out. Exhibit L also contains statements of the defendant as to acts of violence which he had seen in the alleys of Los Angeles. The statement was volunteered by him and there is no suggestion that he participated in any such crimes.

Examination of the record at the trial discloses that error, if such there was, in permitting the jury to hear this evidence was invited by the defendant and was cured by instructions of the court. The record discloses that long before the receipt in evidence of exhibit L, the following transpired:

"The Court: We will dismiss the jury until tomorrow. It will take you some time to read that.

"Mr. Seismore: To expedite matters, if I might make this suggestion, as soon as this witness is excused, the State intends to lay the foundation for the introduction of the statement made here in Oregon, which matter could be put on in the absence of the jury this afternoon, and Mr. Lomax could read that statement tonight.

"The Court: As you intend to do that, we will excuse the jury, and you can do that this evening, Mr. Lomax, and the witness can be back on the stand in the morning.

"Mr. Lomax: That is satisfactory."

The next morning, in the presence of the jury, counsel for the defendant said:

"With the Court's permission I have examined those statements, State's Exhibit K and the other statement, and am ready to proceed."

Upon receipt of State's exhibit L, the district attorney announced that he "would like to read State's exhibit L to the jury." The transcript discloses that Mr. Weinrick then began to read State's exhibit L and read until the recess. After recess the reading continued. At one time the reading was interrupted and Mr. Weinrick and Mr. Lomax conferred together.

"Mr. Lomax: You started reading it; you might just as well read all of it."

Mr. Weinrick continued reading:

"Mr. Lomax: I object to the last statement."

Thereupon the court said:

"Read the statement as it appears,"

and Mr. Weinrick proceeded to read the portion of exhibit L with reference to his quarrel with the school girl in which he "turned around and squared off and drew to hit her and she kind of smiled and I went home."

"Q. You didn't hit her?

"A. No."

He also read the portion of exhibit L wherein the defendant said that his "wife" expected him to kill somebody.

There is nothing in the transcript to indicate whether the objection preceded or followed the first reading to the jury of the objectionable matter for we are left uninformed as to the extent of the reading before the objection was made.

The court then ruled: "I can't shut it out, it is part of that statement." The district attorney then continued the reading of the statement. Upon concluding, counsel for the defendant asked the court to strike from the statement any of the references to altercations with defendant's "wife" or any reference to any other kind of offense. The district attorney stated that there was no objection to that being done. The court then ruled as follows:

"Of course if that motion had been made or objection made at the time of the offer, the Court would have gladly done that and not permitted it to go to this jury, and at this time, although the document has been received in evidence, out of fairness to the defendant I want to say to this jury that those references in that statement concerning any other offense, no matter what it was, major or minor, have no place in this case, and should not be considered by you or anyone of you in making up your minds as to what verdict should be rendered. I am going to eliminate those as far as I can from this statement, either delete them or cut them out and caution the jury not to discuss them in rendering your verdict — any reference to any other offense. This defendant is not on trial for any other offense except that described in the indictment, and that only, and it would be unfair for him to have a jury consider or discuss in the jury room any other offense, or let it enter into the jury's mind that any other offense was committed. He is not on trial for anything else, and for that reason the motion will be allowed.

"Mr. Lomax: May I make my position clear, your Honor? When your Honor in his wisdom admitted the statement made by the defendant, I intended to ask your Honor at the conclusion of the reading of the statement to so strike, and I believe the jury will follow your Honor's instructions."

Counsel for the prosecution and the defense agreed to get together and delete the objectionable statements within the purview of the court's ruling. Accordingly, a small portion was deleted by excision. Other portions, now thought to be objectionable, were not deleted but counsel for the defense made no request for further deletion and no further objection upon that issue.

Thereafter witness Howard of the Oregon State Police was examined and cross-examined by the defense in great detail. In the cross-examination the defendant covered the material portions of exhibit L, sentence by sentence, asking witness Howard if the defendant had made the various statements, to which Howard answered that he had.

It is next urged that prejudicial error was committed because, by reason of the reception in evidence of exhibits K and L instead of their use to refresh recollection, the defendant was deprived of the valuable right of cross-examination. We find no merit in this contention. The two transcripts were each authenticated by the testimony of the stenographers who took the statements. The defendant had full opportunity to, and did, cross-examine each of them. The transcripts were theirs alone, but because other witnesses testified to the fact that these statements were taken and that they did in substance contain statements of the defendant, it is suggested that the defendant was deprived of the right to cross-examine them in relation to the transcripts. None of the officers could testify as to the accuracy of the stenographer's notes except by telling what they themselves heard the defendant say. This they did and the defendant exhaustively cross-examined all who testified to admissions or confessions of the defendant. If the defendant desired to cross-examine the officers further after receipt of the exhibits, he should have requested that they be recalled to the stand for that purpose. Tetrick, whose testimony covered the substance of exhibit K, was available for that purpose because the record shows that he was recalled to the stand by the defendant after the receipt of exhibit K. Concerning exhibit L, upon its receipt in evidence, the following transpired relative to the availability of witnesses Howard and Beeman:

"The Court: You may recall them, and you have the right to recall them if the State does not bring it out. You have the right to bring out everything that occurred in that room. They will be available here as witnesses."

Defendant's counsel had already examined exhibit L and both officer Howard and witness Beeman were examined and cross-examined subsequent to his examination of the exhibit, in fact, both Howard and Beeman testified after the receipt of exhibit L and full cross-examination was allowed — much of it relative to the contents of that exhibit.

Lastly, we must consider whether the technical errors heretofore discussed warrant a reversal of the judgment.

"* * * The materiality and prejudicial character of a given fact must be measured by its relation to the entire case. Of necessity, it cannot be detached and isolated from all of its surroundings and thus measured to determine its prejudicial character. So, the above testimony, as any other, must be considered in its relation to all the evidence introduced. * * *" Forrester v. State, 109 Tex.Crim. Rep., 4 S.W.2d 966 at p. 968.

It is held that the testimony of witnesses for the State may be given full effect by the jury when the accused fails to take the witness stand. Reeves v. State, 159 Miss. 498, 132 So. 331. Where guilt is conclusively proved by competent evidence, and no other rational conclusion could be reached, conviction should not be set aside because of unsubstantial errors. State v. Evans, 202 S.C. 463, 25 S.E.2d 492, headnote 6; People v. Vogelgesang, 221 N.Y. 290, 116 N.E. 977; People v. Stokes, 334 Ill. 200, 165 N.E. 611; Robinson v. United States, 30 F.2d 25; State v. Rusnak, 108 N.J. Law 84, 154 A. 754; People v. Oberholdt, 359 Ill. 39, 193 N.E. 608.

In the case of Edwards v. Mt. Hood Construction Co., 64 Or. 308, 130 P. 49, the trial judge committed numerous serious errors. Among other things, in the presence of the jury he expressed his opinion of the evidence and told one of the attorneys that his case was "infamous." This court, in affirming the judgment, said:

"The defendant introduced no testimony whatever, leaving the testimony of plaintiff and her witnesses wholly uncontradicted. The witnesses were not impeached, their testimony was reasonable and probable, and, in the absence of any contradiction, the jury was bound to receive it as true and render a verdict accordingly. Had there been any contradictory evidence introduced, so that a question of the preponderance of evidence one way or the other had been presented to the jury, we should be compelled to reverse this case; but, as it now stands, the evidence is all on the side of the plaintiff, and notwithstanding the errors complained of the verdict must stand." Edwards v. Mt. Hood Construction Co., supra.

In People v. Oberholdt, supra, it was held that where the conviction was sustained by competent and uncontradicted evidence of eye witnesses and where the accused offered no evidence, alleged error in the admission of incompetent evidence was not prejudicial.

It is held that error in admitting incompetent evidence is cured by the introduction of competent evidence to the same effect. Commonwealth v. Sydlosky, 305 Pa. 406, 158 A. 154; Commonwealth v. Bernstine, 308 Pa. 394, 162 A. 297; Eaton v. Commonwealth, 230 Ky. 250, 19 S.W.2d 218; Baker v. Commonwealth, 223 Ky. 616, 4 S.W.2d 416.

In view of these authorities and of an immense mass of similar recent decisions, (see Fourth Decennial Digest Criminal Law, Key No. 1162 et seq.) we turn to the substance of the confession to determine whether, under the peculiar circumstances of this case, guilt was so conclusively proven that no other rational conclusion could be reached.

At the home of Jessie Wilson, no reporter was present. Officers Tetrick and Rasmussen were present. Tetrick testified that the defendant told him that after boarding the train at Portland,

"* * * When he got into car D, he saw a woman sitting on her berth and she asked him where her husband was, if her husband was on the train. He said she evidently thought he was the porter. He said at that time he noticed that she was in berth 13 lower. He said, `I don't know where your husband is, but I will try to find him for you; if you meet me in the vestibule in about 10 or 15 minutes I will let you know if he is on the train. He said, `I went back into the dining car. I made no effort to find her husband' * * *"

He met her later in the vestibule that evening and

"`* * * told her her husband was in the dining car with a bunch of men in conference, and he would be in there shortly.' He said, `I knew that wasn't true, but I told her that.' * * *"

Officer Rasmussen testified to substantially the same statement relative to defendant's conversations with Mrs. James about her husband. It will be remembered that her husband was not on the train.

Tetrick testified that the defendant said he set his alarm for 3:30 A.M., an hour earlier than usual, and that he said, "When I woke up in the morning, all that was on my mind was the girl in lower 13." He walked through car D, reached into lower 13, "He put his hand on her body; he made sure she was alone." He then went to the smoking compartment and talked with porter Hughes. (This is confirmed by the testimony of Hughes.) He then returned to the dining car. Tetrick testified:

"At that time he had on his white jacket, his striped pants and he went back into the dining car and got a knife, and put the knife in his sleeve and came back in car D, * * *"

In the aisle he met Chief Petty Officer Kelso and directed him to the men's smoking room. (This is confirmed by the testimony of witness Kelso.) He then returned to the dining car where he sharpened a knife on a steel. "Then it came to his mind to disguise himself so that if anyone saw him they wouldn't recognize him. He took off the white jacket and put on an overcoat. He put the knife in the pocket of his overcoat and went back to this car D."

Officer Rasmussen testified to the same facts which we have quoted and summarized from the testimony of Tetrick. Witnesses Wilson, Conner and Norton, who saw the murderer flee from car D, verify defendant's confession concerning the dark overcoat. Tetrick's testimony continues:

"* * * When he got back to berth 13 lower, he stepped inside the berth. He said, `I thought I had all the buttons unbuttoned,' but he found there was one button still unbuttoned. He stepped over that button and stepped in the berth and tried to button the buttons behind him. He said he was unable to do so, and it came to his mind to make the woman button the buttons. He thought maybe somebody would see his shoes and pants below the curtain, and that would be bad. So he climbed on top of the woman, astraddle of her. He put one knee over her, and as he did she woke up. He said at this time he would like to describe the way the woman was lying. She was lying on her back with the bed clothing up just under her arm pits, and her right side to the curtains. He said when she woke up, she said, `Who are you?' He said, `I put the knife against her throat, and said, "It makes no difference." "Button those buttons."' She said, `What do you want?' He said, `It still makes no difference; now button those buttons or I will cut your throat.' He said she reached over with her right hand to button the buttons, and as she did she threw her body in an effort to throw him out of the berth. He said he was still unsteady and a little drunk from the night before, and he said to her if she did that again he would cut her throat. He said, `Button those buttons, and no fooling.' He said she reached over her right hand and as she crossed her left she throwed her body again. He said at that time he cut her. He said he had a knife in his right hand, and he made one cut. * * *"

He then got out of the berth and ran to the dining car. He put grease in the stove and lighted the fire, and "had so much grease in there the flames shot way out of the stove." He then proceeded to prepare pies and muffins and by that time the marine came in and told him there had been a murder. This is verified by the testimony of Wilson, the marine, and Tetrick's entire narrative of the admissions of the defendant is covered in all substantial particulars by the testimony of officer Rasmussen. Tetrick testified the defendant then said:

"That is my story; I am the killer and you have your murderer, and now can I have a drink?"

Defendant also told to the officers a wholly incredible story to the effect that a man had offered him $1,000 if he would kill a woman. He was unable to describe the man because "the man had an overcoat on and a mask."

The officers testified that he told his mother over the phone that he was the killer. This, as we have said, was denied by the mother.

Comparison of the confession made to the officers in the home of Jessie Wilson with the confession which appears in the transcript exhibit K discloses that the unobjectionable evidence concerning the first confession is substantially the same as the confession contained in exhibit K to which objection is made. Exhibit K is too long to be fully set forth in this opinion. We quote but a small portion:

"It was again brought to my mind about this lower berth 13. The first thing that went to my mind again was when I staggered over to the bench where my knives are kept. I grabbed the knife, I grabbed the steel, I whet this knife and tested with my left thumb. * * * I then made one more trip to the car to make sure the car was clear. It was clear alright enough. I then went back to the kitchen. I unlocked the kitchen again and looked at my white jacket and it occurred to me to disguise myself in case anything of my identity was shown. I got a coat from the closet, I put it on with my regular work clothes and everything except my jacket. * * *"

He made approximately three trips through car D. On one of them, he met Petty Officer Kelso who was looking for the men's restroom, but was headed the wrong way. The defendant directed him to the room. His statement continues:

"* * * I walked back to the tourist car. Nothing was behind me and I could see everything in front. I ran my hand inside of the curtain and unbuttoned one button. I walked on, all the way to the end of the tourist car where Hughes and the Petty Officer was. I made another return and walked back towards the dining car in this same car `D'. I walked again up there and unbuttoned another button of berth 13. After I unbuttoned this I thought it was the last, I made another trip. I heard this petty officer's razor zizzing. I did not hear them holding any conversation, so I drew from my own conclusion that he was shaving and evidently Hughes was laying on his couch or bench. Then I went back through the car towards the diner. I made one more trip to this berth, I entered the berth with my left knee. Somebody raised up from that berth and asked who was I, as I can fairly remember. It was all in a fog to me. I said, `It does not make any difference.' She immediately asked me what I wanted. I again said, as I can remember, I said, `It still makes no difference.' I said, `Button these curtains' once again. It was a lady true enough. She buttoned the curtain. She acted as if she was going to button them, which I felt she had more power than I. She reached first with her right hand then with her left, but evidently in my mind I figured she was not going to do that and there is where I killed her.

"Q. At the time she reached were you astride of her?

"A. I do not know. I do not think I ever did. Yes, I sat on top of her.

* * *

"Q. How did you kill her?

"A. I guess I cut her.

"Q. Do you remember where you cut her?

"A. Yes, sir.

* * *

"Q. Was it about her head?

"A. I think it was her head.

"Q. How many times did you stab her?

"A. I think it was only once.

* * *

"Q. What did you do after the killing, did you run?

"A. Did I run? I run."

In support of exhibit K and the testimony of Nancy Lyman, witness Tetrick testified that the statement taken by Nancy Lyman was "practically the same statement he made the night before," with the exception that the defendant did not mention having been hired to do the deed.

We next quote a few excerpts from the forty-seven-page transcript exhibit L which was taken by the court reporter, Kathleen Miller, in Albany, on January 31.

"Q. But you did tell her to button the curtains, didn't you?

"A. Yes, but I never heard no reply.

"Q. Did she act as though she was going to button the curtains?

"A. Yes, but I kind of figured it was a phony.

"Q. You mean you didn't think she was going to button them?

"A. No, I didn't figure she was going to.

"Q. Where was the knife at that time?

"A. It was ____

"Q. It was on her throat?

"A. Yes, sir."

In the course of the questioning by Lieutenant Howard, the transcript indicates that Dr. Beeman lay down upon some chairs and the defendant demonstrated upon him the manner in which the murder was committed. In the course of the demonstration, the following conversation was had:

"A. Then I did like that with my knee like that and touched her.

"Q. You brought your knee up to the lower berth and touched her.

"A. Yes, sir.

"Q. Then what did she do?

"A. Then she rose up and my knee was in this position.

"Q. Your knee was up against her abdomen?

"A. Yes. And as she rose like that she said, `What do you want?' and I said to her, `It makes no difference', and she said, `who are you?' and I said, `It makes no difference.' And I placed it like this.

"Q. Do just like the way you did. With your fingers under her chin?

"A. With my hand over her mouth.

"Q. Put it exactly as you did.

"A. I put it like this. She turned her head this way.

"Q. She turned her head toward the aisle?

"A. Like this, and I cut her here, I think."

It is, we believe, undisputed that no error was committed in receiving the testimony of officer Howard concerning the defendant's statements in Albany. We quote brief portions of it. Dr. Beeman had shown the defendant pictures of the deceased. Witness Howard testified:

"* * * Dr. Beeman showed the defendant the cut on the neck of the deceased and asked the defendant if he remembered striking a bone. The defendant said he did. He then denied making such a statement. We continued to talk to the defendant. He seemed very willing to talk, and I told him he had violated one of the ten commandments, and he said, `Yes, "Thou shalt not kill."' * * *"

In the course of the investigation, witness Howard left the room for a few minutes. He testified:

"* * * Upon my return to the courtroom Dr. Beeman advised me that the defendant had signified his desire to tell us the truth of the murder, and had admitted his guilt.

"Q. Was the defendant Folkes present when Dr. Beeman made that statement?

"A. Yes, sir.

"Q. You may proceed.

"A. I asked the defendant if it was true that he had made such a statement and signified his desire to tell us the truth, and he told me that it was. * * * The defendant then related the details of the murder orally to Dr. Beeman and myself and later made a written statement.

* * *

"A. * * * He stated that he had gone to the dining car into the galley after seeing Mrs. James and had sharpened a French knife and a boning knife. That the boning knife that he had sharpened was the one he used in the slaying of the deceased. * * *"

The detailed testimony of witness Howard concerning statements of the defendant relative to the period immediately preceding the murder is substantially the same as the other statements which we have already summarized. Witness Howard then demonstrated before the jury upon the body of the sheriff the manner in which the defendant had demonstrated the crime upon the body of Dr. Beeman on the evening of January 31.

"A. He said that when he cut the deceased, he had the knife in his right hand. That when he first entered the berth that he had pointed the knife away from her body to keep from cutting her; that when she made a movement which indicated to him she was going to make an outcry or force him from her berth, he turned the knife blade and pointed it at her throat; that when she then made another movement which indicated to him that she was going to try to force him from the berth, that he had cut her. He said that he was holding the knife in this position with the blade extending downward and forward; that he had started at the mid line of the neck and had gone toward the rear. At the time he showed us how he had done this, he was very definite in showing that there was four distinct jerks or motions. He showed us in this manner. (Illustrating) Four very distinct movements or jerks.

"Q. The defendant was demonstrating that upon whom?

"A. Dr. Beeman.

"Q. And was the Sheriff in the same position in which Dr. Beeman was at that time?

"A. Approximately so, yes. The chairs when the defendant was demonstrating were facing in this direction in the small courtroom. This is supposed to be the front of the train.

"Q. Will you demonstrate to the jury what, if anything, the defendant Folkes did with his left hand.

"A. Yes, he placed his left hand over the deceased's mouth in this manner when he cut in this other manner."

On cross-examination, counsel for the defendant repeatedly and at length quoted incriminating portions from exhibit L to witness Howard, asking him if the defendant had made the statements quoted and Howard answered in the affirmative. If exhibit L was improperly admitted, the testimony of Lieutenant Howard covers, in substance, the same confession and that without error.

Dr. Beeman, an officer in the Oregon State Police and a member of the faculty of the University of Oregon Medical School, testified that the defendant, in the absence of Lieutenant Howard, "briefly told me that whenever he got drunk that he heard voices and then described briefly the details of the killing of Mrs. James." He added that there was further elaboration of the statement when Lieutenant Howard returned and that a subsequent statement was taken in writing. Dr. Beeman performed the autopsy, described the wound upon the neck of the deceased as follows:

"* * * Starting below and behind the left ear at just about the collar level and at a point where I am pointing, approximately, with my pencil, was a wound made with a sharp instrument which was 1 5/8 inches long and went downward. Directly connected with this wound was a second part of the cut in the neck two inches long which ran upward. The third part of this wound ran downward for 1 5/8 inches — pardon me, 13/4 inches, and the fourth part ran upward for 15/8 inches and ended 1/2 inch to the right side of the center of her body. * * *"

The description of the wound confirms the accuracy of the defendant's statement to Lieutenant Howard as to the manipulation of the knife in four distinct jerks. Dr. Beeman testified that the defendant made the same statement essentially three times.

The defendant was conclusively proven guilty by his own confession corroborated by other unimpeached and uncontradicted evidence. We therefore hold that the receipt of incompetent evidence which would have warranted a reversal under other circumstances, did not constitute reversible error here. This view is strongly fortified by a line of decisions from the Supreme Court of Illinois, subject to a single qualification which is peculiar to that state. In People v. Stover, 317 Ill. 191, 148 N.E. 67, incompetent written confessions were received in evidence.

"The object of the review of judgments of trial courts by courts of appellate jurisdiction is not to determine whether the record is free from error, but is to ascertain whether a just conclusion has been reached, founded upon competent and sufficient evidence, after a trial in which no error has occurred which might be prejudicial to the defendant's rights. This defendant on his own statement was guilty of burglary. There was no evidence of a single fact tending to raise any doubt of his guilt except evidence of his good character, and this, in face of his own admission as to the facts, could not possibly raise a doubt of his guilt. Therefore the incompetent evidence, which would have been sufficient to reverse the judgment if there had been any attempt to show a valid defense, was not prejudicial to the defendant, who did not attempt to present a defense. A defendant who is fully proved guilty by his own confession, which he does not deny or attempt to invalidate, has no right to complain of error in the trial where the verdict of guilty has nothing to do with the fixing of the penalty or the grade of the crime." People v. Stover, supra, and see People v. Taylor, 319 Ill. 174, 149 N.E. 797; People v. Schueneman, 320 Ill. 127, 150 N.E. 664; People v. Guilfoyle, 321 Ill. 93, 151 N.E. 596.

The limitation of the Illinois rule to cases in which the verdict has nothing to do with the fixing of the penalty, apparently was inserted in the Illinois decisions because of a statute then in effect whereby the jury was required to fix the period of confinement in many criminal cases. Jones Ill. Stats. Ann. § 37.742, vol. 8, Repealed L. 1943, vol. 1, p. 589. The Illinois Constitution contains no provision similar to Art. VII, § 3 of the Oregon Constitution hereinafter cited. While in Oregon the jury may ameliorate the punishment by recommending life imprisonment, the death penalty, in the absence of any recommendation, is made mandatory by provision of Art. I, § 37, Oregon Constitution.

Our authority to disregard technical errors is based on O.C.L.A. § 26-1325; State v. Moore, 124 Or. 61, at p. 66, 262 P. 859; State v. Yee Guck, 99 Or. 231, 195 P. 363; State v. Chin Ping, 91 Or. 593, 176 P. 188; State v. Reed, 52 Or. 377, 97 P. 627; Edwards v. Mt. Hood Construction Co., supra, and see 3 Am. Jur. § 1005, p. 560 and § 1028, p. 580. Our authority to affirm this conviction rests not alone on statute, but also on the express provisions of the Constitution:

"* * * If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; * * * provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower court. [Initiative amendment, section 3, approved 8th November, 1910 * * *] Art. VII, § 3, Or. Const.

"This amendment blazes the way to true justice in this case and in like cases." State ex rel. Burghart v. Haslebacher, 125 Or. 389, 266 P. 900; and see State v. De Jonge, 152 Or. 315, 51 P.2d 674 (referring to the "salutary mandate" of Art. VII, § 3 of our constitution); State ex rel. v. Bartlett, 141 Or. 560, 18 P.2d 590; State v. Metcalf, 129 Or. 577, 278 P. 974; State v. Burke, 126 Or. 651, 269 P. 869, 270 P. 756; State v. Ragan, 123 Or. 521, 262 P. 954; State v. Karpenter, 120 Or. 90, 250 P. 633, 251 P. 307; State v. Newlin, 92 Or. 589, 182 P. 133; State v. Morris, 83 Or. 429, 163 P. 567; State v. Friddles, 62 Or. 209, 123 P. 904. The purpose of Art. VII, § 3 was:

"`To simplify procedure on appeals to the Supreme Court and remove the pretext for new trials in those cases in which substantial justice is done by the verdict and judgment, but in which the trial court may have made a technical mistake.'" Statement, Voters' Pamphlet 1910, p. 177.

O.C.L.A. § 26-1325 requires the court to "give judgment without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties." By that section we are required to identify and disregard technical errors; but by the provisions of Art. VII, § 3, we are empowered to consider all matters submitted and "if the Supreme Court shall be of opinion that the judgment * * * was such as should have been rendered in the case, the judgment shall be affirmed * * *."

In the absence of constitutional provision, the common law test as to the existence of prejudice is often stated as depending upon whether the verdict of the jury would have been the same had there been no error, although more liberal tests have also been applied. We believe the verdict would have been the same had no error been committed in the case at bar, but the constitutional test is plain and explicit. It does not involve a vague psychoanalysis as to what the jury would have done. The test is whether, in the opinion of the Supreme Court the judgment should be affirmed. The judgment which may thus be affirmed incorporates the finding of guilt by the jury and the pronouncement of the mandatory sentence by the court. If we were of the opinion, on examination of the entire record, that the defendant did not have a fair trial before the jury, an entirely different question as to the applicability of Art. VII, § 3, would be presented.

It is urged that Art. VII, § 3, was either amended or repealed by implication by Art. I, § 37, which provides that the penalty for murder in the first degree should be death except when the trial jury recommends life imprisonment. There is certainly no inconsistency on the face of the two sections — the one relates to procedure in the trial court, the other to the powers of the supreme court. Art. VII, § 3, is a remedial provision adopted in the interest of prompt justice. Repeals by amendments and repeals by implication are not favored. Noble v. Noble, 164 Or. 538, 103 P.2d 293; Cabell v. City of Portland, 153 Or. 528, 57 P.2d 1292; 59 C.J. § 434, p. 857 and § 610, p. 905.

Reliance on behalf of the defendant is placed upon the decision of People v. Meisner, 311 Ill. 40, 142 N.E. 482, and some similar cases cited in the dissenting opinion of Mr. Justice ROSSMAN. In the Meisner case, the court said:

"Even if it could be said that so far as Meisner is concerned the evidence that he was guilty of murder was so complete that without regard to the incompetent evidence there could have been no other verdict than guilty, it cannot be said that the evidence was not prejudicial to him. The jury had the right to fix the penalty, and they did fix it at the extreme limit authorized by law. Nobody can know what the jury would have done if they had fixed the penalty on the evidence of this crime alone. * * *"

No constitutional provision such as Art. VII, § 3, of the Oregon Constitution was involved in the cases cited, nor was there any statute involved similar in terms to the provisions of Art. VII, § 3.

As we have indicated, we think the verdict would have been the same had no error been committed. But if it be said, as in the Illinois case, that we cannot know what the jury would have done, nevertheless we do know what they did. They found the defendant guilty of first degree murder without recommendation. We know that the judgment rendered upon that verdict was mandatory and we are "of opinion, after consideration of all the matters * * * submitted, that the judgment * * * was such as should have been rendered in the case * * *." We are therefore authorized to affirm it.

The characteristic feature of this case, it must always be remembered, is that the error in receiving exhibits K and L in so far as they relate to the crime charged was in the manner by which the information was conveyed to the jury, not in the substance of the confessions set forth in those exhibits and, most important of all, it must be remembered that there were repeated, detailed, voluntary confessions of guilt the making of which is wholly undenied.

Under these circumstances, and in conformity with the provision of the fundamental law, we have considered all matters submitted, have examined the whole testimony and are of the opinion that the judgment of the court appealed from was such as should have been rendered in this case. A trial is no longer a game of wits, it is a search for truth and justice. We have found truth in the evidence of the prosecution and justice in the judgment of the court. The judgment is therefore affirmed.

BELT and HAY, JJ., concur in this opinion.

BAILEY, C.J., concurs in the result.