He was a pupil, by penetration of the anus by some instrument or body; that it was impossible to state what actually caused the dilation; and that it possibly might have resulted from the commission of the crime of sodomy.

years and 8 months old.
in the fourth grade in the public schools at
Marieville, a village in said North Provi-
dence. He attended both school sessions that
day. He left his house at 10 minutes before
1 o'clock in the afternoon and reached the
school after the session had begun and was
marked tardy. In consequence of being late,
he was detained 10 minutes after the close
of the school for the day. He then went
away, and there is no direct evidence that he
was ever afterwards seen alive. His dead
body was found on the side of Moses Angell
Hill, near Mineral Spring avenue, on the
evening of March 27, 1912, at a place more
or less covered with trees and rocks and
which was to all appearances little used or
frequented in winter. The skull was crushed
in from about an inch back of the right ear
to the middle of the occipital bone. There
was a scalp wound and another fracture of
the skull about the size of a half dollar on
the top of the occipital bone. In addition
there were four other scalp wounds and a
contused wound with a slight abrasion on
the right elbow. The anus of the body was
open and distended, by measurement from
1% inches to 14 inches. When found, the
body was lying prone with the head turned
so that the left side of the face was resting
on the ground, leaving the right cheek expos-
ed, with the left arm under the body and the
right arm over the back. The body was
frozen and in a good state of preservation,
excepting that there were indications that
the right side of the face had been disturbed
by some animal. The body was clothed with
a shirt or waist, a "singlet" or undershirt,
a pair of trousers, stockings, and shoes. The
shirt or waist was torn and the suspenders
were down off the shoulders. His coat and
sweater were found behind a V-shaped rock
higher up the hill and about 125 feet from
where the body was found, and his cap still
further up the hill about 25 feet away from
said rock. There was blood on the sweater.
At a distance of two feet from the head of
the body when found lay a stone about 8
inches long, 5 inches wide and 11⁄2 inches
thick, tapering in nearly all directions to a
sharp edge, and weighing 4 pounds and 6
A microscopical examination, veri-
fied by chemical analysis, revealed traces of
human blood, several human hairs, and a
small piece of scalp tissue on portions of
said stone.

The defendant on February 29, 1912, lacked a few months of being 14 years of age; that is, he did not become 14 until June 4, 1912. He had attended the public school in Marieville for a short time during the fall of 1911, but with his relatives moved into Providence for a few months, where he was a pupil in the school on Branch avenue. Later they returned to Marieville, where, on February 29, 1912, he re-entered the public school but in a different room and in a lower grade than the one attended by the Mather boy.

What follows sets forth in substance the material portions of the testimony connecting the defendant with the crime:

Suspicion was cast upon Mariano shortly after the finding of the dead boy's body. It appears that there had been some talk about his having bats. In answer to the request of other boys for bats, he promised to give them some. These boys were Pasco Busserio, James Amondi, and Antonio Amondi. They were at the time about 11 years old each. After school at noontime he told these boys to go up the hill (where the body was afterwards found), and said that they would find some bats behind a rock. Mariano went a little way with them and then started to go home. Not finding any bats, they got up on the rocks and called to him. In reply he told them to go higher up. They went higher up, but could find no bats; they did find, however, behind a rock, a coat, a sweater, and a rubber shoe. They left the clothes, but James Amondi took the rubber away. After school that day Mariano gave to James Amondi two bats and to two other boys three bats, or five in all, which he had properly obtained from a neighbor living across the street, a Mrs. Hayden by name. The date of these occurrences is not entirely clear, but it was apparently March 27th or thereabouts. At any rate, as Walter A. Lefevbre was returning from his work on that day, he heard that boys had found some clothes up in the woods, and he started off the team, when it stopped at the bottom of the hill, and went up the hill, and after some search found the clothes. Later in the evening he with two other men and William The medical examiner, who made the au- M. Mather, father of the dead boy, went to topsy, testified that the wounds upon the the place, found and identified the clothes, head might have been caused by "almost any and after further search found the dead blunt instrument" used with different de- body lying diagonally across an old cart grees of force; that said stone could have path, in the condition already described. been such instrument; and that the blow Afterwards it was learned that the defendwhich crushed the skull would cause "al-ant had tried to sell a watch to one Ricci most instant death." The distention of the anus was explained by the medical witnesses as being due to its having been dilated either just before or just after the boy Mather's death; that the dilation was caused

ounces.

Petrochelli, a boy of 10, who attended the same school, which watch was supposed from its description to belong to the dead boy, who had a cheap open-face watch. Thereupon, between 5 and 6 o'clock of March 30,

sixteenth exceptions all refer to the admission of testimony offered by the state tending to show that defendant had reached the age of puberty and and had the sexual capacity to commit the crime of sodomy. It was shown by the testimony that, while the defendant was detained at the Sockanosset School awaiting his preliminary examination before the Sixth district court, he was subjected to a physical examination on April 5 and 6, 1912 by Dr. Henry A. Jones, the resident physician at the State Institution, and Dr. Clifford H. Griffin, a medical examiner for the county of Providence, and the police surgeon of the city of Providence. The examination was made apparently for the express purpose of ascertaining his sex

not go out after he went home. He denies killing young Mather, and says that he did not see him February 29th, and did not know him; he sent the boys for bats, but explains that he had placed some bats, given him by Mrs. Hayden, in the field on his way to school, thinking the teacher would take them from him, if he brought them to school; admits trying to sell a watch to Petrochelli, but says it was a watch given him by one Frank Zabillo; admits making to Mr. Kinnecom and the other officers and to Judge Reuckert the statements related by them, but says the statements were untrue and that he made them by the direction of Domenico Conca and Anthony Capuano, who suggested the story he told as to Mather's death, and told him that by telling it he would get out and be per-ual development and capacity. While the mitted to go home; that he was frightened when in the cell and wanted to go home. He also says that Domenico Conca put him up to telling the story about William Mather's watch, and it was in consequence of what Conca said that he told Judge Reuckert what he did and that Conca told him all this when he was in the cell at the town hall. He also says that Conca told him that the rock he pointed out was where William

Mather was killed. George Frazza, a small school boy, says that the defendant went home with him at close of school on February 29th, and played piggy with him for half an hour, and Frank Zabillo testifies that he

gave defendant a cheap watch in January, 1912. Defendant's younger brother Michael also says that he saw him with Frank's watch. The mother of Mariano says he came home February 29th "about 4:30 or five, but I do not remember well," and that when he came home he worked around the yard, and his appearance and conduct after February 29th was the same as at other times. He is described by one of his teachers as a very dull boy. In rebuttal Conca and Capuano denied defendant's charges that they induced the defendant to make the statements he did or were in any way the the author of them. The jury found the defendant guilty with a recommendation of mercy. Exceptions were taken to various rulings of the justice presiding at the trial in the course thereof, and the case has been heard by this court on defendant's bill of exceptions as allowed by the court below.

The bill of exceptions as filed contains 35 exceptions. Three of these, respectively numbered 18, 21, and 31, were disallowed by the justice presiding at the trial and no attempt has been made to establish their correctness before this court. Those numbered 1, 2, 9, 24, 26, 27, and 30 have not been pressed before this court, thus leaving 25 for consid

eration.

[1] As several of these exceptions relate to the same subject-matter, it will be convenient to group them in considering them. The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and

prisoner was entirely nude, four photographs were taken of him in a standing position, one a front view, one a back view, and two side views, one of each side.

exceptions relate to objections to the intro[2] The third, fifteenth, and twenty-second duction of testimony respecting the physical examination and to the introduction in evidence of said photographs. The question to which the third exception lies was simply preliminary, and the allowance of the question and answer was not error and the exception is overruled.

[3] The other 13 exceptions just enumerated, except the fifteenth, are all based upon the offers of testimony tending to show the sexual ability of the defendant to commit the crime of sodomy. The testimony of Drs.

Barnard and Griffin and of the undertaker is that the anus of the dead boy was widely open. The two doctors express the opinion that this condition was due to its having been penetrated by some instrument either just before or just after the death of the Mather boy. This opinion as to the time of penetration is based upon said open condition of the anus, which these witnesses believe did not close after its dilation because death had destroyed the contractile power of the sphincter muscle. If these inferences as to the cause and time of said dilation are to be relied upon, it would not be unreasonable to conclude that the person who killed the boy was also the cause in some way of the dilation. Such a conclusion is doubtless the attempted justification of the offer of the evidence now being considered. The only suggestion in the evidence that the dilation was due to the commission of the crime of sodomy is found in the testimony of Dr. Griffin. On page 117 of the transcript this appears:

Cross Q. 89. "Now, doctor, you didn't findyou couldn't say whether that penetration was caused by any particular instrument, could you?" Answer: "No sir."

On page 125 of the transcript we find: C. Q. 136. "You are not willing to go on record as stating that the crime of sodomy was committed on William Mather, are you?" Answer: "No, sir: I am not. I say the condition

found indicated that it might have been done. I full consideration of some of the other exThat is as far as I can go." C. Q. 137. "Indi- ceptions will be of service for guidance in a cations only show Answer: "That it future trial of the case. could have been done." There was no testimony showing such a disarrangement of the dead boy's clothes, as for example that the top of the trousers were below the hips, as to give added weight to this suggestion of Dr. Griffin. It therefore derives its whole significance from

the dilated condition of the anus. Upon this slender foundation is erected a structure of testimony, which includes the narrative as to the defendant's physical examination, the description of his physical appearance and development, and the four photographs all adduced in order to show to the jury his physical capacity to commit a crime, the actual commission of which is only suggested as a mere possibility. We think the testimony was not sufficiently relevant to the issues in the case. Sodomy is a crime

against nature, and as such is a disgusting and repulsive offense. So that, if the person

who killed William Mather did it in the en

[4, 5] The fourteenth exception was taken to the admission in evidence of a certain box and its contents, which said box was marked "State's Exhibit 3." It is somewhat difficult to determine from the record whether the box was so admitted or not. This ex

ception is noted on page 75 of the transcript, but there is no express ruling of the court to that effect. The uncertainty on this point appears to have been such that the state offered it in evidence near the close of its case, as appears on page 452 of the transion on the point of its admissibility, but no script. There was then a prolonged discusruling by the court is shown. As, however, the exception on page 75 is allowed and the

box is marked "State's Exhibit 3," it is to be treated as having been duly admitted in ity are: First, that no dispute was made by evidence. The objections to its admissibilthe defendant as to the nature and extent deavor to commit the crime of sodomy, or if of the wounds on the skull of William the killing was the result, accidental or oth- Mather; and, second, that such evidence only erwise, of a personal quarrel, and then, per- tended to prejudice the jury against the defendant. Inspection shows the exhibit to haps under a sudden impulse, while the stricken body of the victim was yet warmcontain the crown or upper and back portion whether before or after his death-the slay- of the skull with some fragments of bones. er availed himself of the opportunity to grat- Demonstrative evidence of this character is ify his lustful passion, for this vile act he relevant and admissible when it serves either would naturally be regarded by most men as to show the commission of a crime or throws a foul degenerate and a wicked and criminal light on the way it was committed. On the pervert. We think therefore that all of this other hand, if it explains no fact and is releevidence relative to the defendant's ability vant to no disputed issue, then it is excluded on account of its tendency to create prejuto commit the crime of sodomy could not have failed to prejudice his case with the dice. See Wharton, Crim. Ev. vol. 2, §§ 518, jury. State v. Ellwood, 17 R. I. 763, 769, 518c, 941; 2 Wigmore on Evidence, § 1157; 24 Atl. 782. It should have been excluded. Cole v. State, 45 Tex. Cr. R. 225, 232, 75 S. The fifth, sixth, seventh, eighth, ninth, tenth, W. 527. In this case the manner of the killeleventh, twelfth, thirteenth, fourteenth, six-ing was a matter of inference. The fracteenth, and twenty-second exceptions are sus

tained.

With the sustaining of these exceptions the fifteenth exception becomes unimportant, and it is overruled.

Defendant, under exception 22, also urges that the taking of the photographs and their admission in evidence was in effect compelling the defendant to testify against himself in derogation of his constitutional rights in this particular, making specific reference to certain sections of the federal Constitution. In view of the fact that we have found that this evidence should have been excluded, it is not necessary to consider this claim of constitutional privilege beyond calling attention to the case of Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97. A part of the syllabus is:

"Exemption from compulsory self-incrimination in the state courts is not secured by any part of the federal Constitution," and this is upheld by the text of the opinion.

Although a new trial is to be granted for

tured bones served to demonstrate the destructive force and effect of the blows inflict

ed better than a technical verbal description and gave the jury opportunity as practical men to judge for themselves whether the injuries were likely to follow from a stone or similar weapon as described by the medical witnesses. The mere fact that the defendant announced that he would deny all knowledge of the death of Mather, and therefore would not dispute any of the evidence as to the homicide itself, simply left upon the state the burden of properly proving its case and did not bar it from offering any demonstrative evidence which might tend to throw light not only on the fact but on the mode of killing. The necessity of its admission is perhaps a debatable question; but, taking into consideration the character and appearance of the exhibit itself, we do not, under the circumstances of this case, think it was clearly an error to admit the box and contents in evidence. Exception 14 is overruled.

timony of Ricci Petrochelli, in answer to | down on the box. I said, 'You don't know who question 129 in redirect examination, is not I am, do you?' 'No, Ma'am.' 'Well,' I said, 'I of importance. In the cross-examination of city. You know where that is?' am an officer, I work in the courthouse in the He says, this witness, in question 114, defendant's 'Providence?' I says, 'Yes.' 'Now,' I says, I counsel had asked him who it was that told am going to ask you about the Mather boy. the witness "to say that you did not want Whatever you tell me will be used either for you or against you. Now remember, Tony, whatevto take the watch that Mariano wanted to er you tell me, it may tell for you or it may give you because it was William Mather's tell against you. Be sure and understand it, it watch." The answer to question 129 and the may hurt you, or it may help you; but whatquestions immediately preceding show that ever you tell me, I want you to tell the truth."" it was the sister of the witness who so told The boy said, "Honest to God, Mister, I him. The exception is overruled. didn't kill him," but afterwards told the stories and made the statements hereinbeMr. Kinnecom also states fore repeated. that the boy did not appear to be frightened during the talk, but was cool and calm. He seemed to be somewhat worried about something, but after making his statement acted as if relieved of a burden.

[7] Exception 20, to the overruling of defendant's objection to question 154 by the last witness, is overruled, as the answers of this witness to this and the following question could not have prejudiced the defend

ant.

The twenty-third exception is taken to the overruling of defendant's objection to question 48 in the direct examination of Sanford E. Kinnecom, as follows: "And what was the commencement of your conversation with him?" This refers specifically to the admission in evidence of the conversation the defendant had with Mr. Kinnecom in the cell room of the town hall on the evening of March 30, 1912; but it goes also to the admission of his statements during the night in the presence of Mr. Kinnecom. The objection to the admission of this evidence was on the ground that these statements were not voluntary.

In the examination of Mr. Kinnecom before the court in the absence of the jury for the purpose of determining the admissibility of his evidence, he said that on the evening of March 30, 1912, he chanced to be in the vicinity of the town hall of North Providence and went in there and saw Mr. Willis, who informed him that he had a boy in custody who "gets right on the verge of telling us something and then stops. I wish you would talk with him." Thereupon Mr. Kinnecom went downstairs with Officer Brown. He found

there Antonio Capuano, an Italian police officer, who was talking in Italian to the defendant through the door of his cell. Mr. Kinnecom did not understand it, and what this conversation was was not at that time in evidence. Capuano finally wound up in English, saying to Mariano:

"If you did it, say so, and I will do all I can for you. If you did not do it, don't say you did. I've got four kids myself."

The reply of the boy was, "I didn't kill him, so I can't say I did." Capuano then went out of the station. Mr. Kinnecom testifies that then:

"I walked up to the cell door and said, 'Well, little fellow, what have they got you in here for? He made no reply. Officer Brown was going toward the door to go out, and I said, Here, have you got a key to this cell? He said, 'Yes.' I said, 'Come back and let this boy out.' He came back and let the boy out, and I looked around and found a box and a chair, and I took the box and set it down side of the furnace and set the chair in front of it and said, 'Little fellow, sit down here.' He sat

[8, 9] The statements made to Mr. Kinnecom by the defendant were not in strictness a "confession."

"A confession is a person's declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt." People v. Ammerman, 118 Cal. 23, 32, 50 Pac. 15, 18.

See, also, Greenleaf on Evidence, § 170; 6 Am. & Eng. Encyc. of Law, 521; 12 Cyc. 459.

These statements by the defendant were of an explanatory and exculpatory character, admitting that he caused Mather's death by accident, but denying criminal intent or liability. Statements and declarations by an accused person, although not amounting to a confession, but from which in connection with other evidence and the surrounding circumstances an inference of guilt may be drawn, are admissible against him as admissions. 12 Cyc. 418.

The state claims that it is not necessary to show that these statements were voluntarily

made. One of the best modern writers on

evidence holds that exculpatory statements denying guilt cannot be treated as confessions, and that in order to admit them in evi

dence it is not necessary to show them to be voluntary in character. 1 Wigmore on Evidence, § 821(2 and 3), and cases cited in notes. In the author's discussion of the subject this view is impressively stated. In practice, however, there is a great lack of uniformity in the decisions on the point; but in the greater number of jurisdictions it is held that the voluntary character of such admissions must be shown. 12 Cyc. 419. In State v. Nagle, 25 R. I. 105, 54 Atl. 1063, 105 Am. St. Rep. 864, this court treated similar statements or admissions having "a vital bearing upon a highly important link in the chain of circumstantial evidence relied on by the prosecution" as in the nature of confessions and subject to the same rules of admissibility in evidence; that is, that they must be voluntary. From this standpoint we will consider this and the next two exceptions.

[10] The defendant makes little real objection to the preliminary conversation and admonition given by Mr. Kinnecom. The