at some previous time which is inconsistent with the facts sought to be proved at the trial. The latter relate to admissions made in pleadings or stipulations filed during the progress of the case, or statements made in open court. This may result from a failure to deny material allegations of the opposing party's pleadings. Judicial admissions are binding and conclusive upon the parties, while other admissions, where the doctrine of estoppel does not apply, may be rebutted. Admissions may be implied from conduct consistent with a state of facts against his interests and inconsistent with the rights asserted by him in the pending cause. Admissions of guilt in criminal cases are to be received with great caution. The reason for this is the difficulties of the English language and the danger of mistakes in the use of words, inability of the accused to correctly express his own meaning, the frailties of memory, and the disturbed state of mind of the prisoner induced by his perilous situation. To be admissible, confessions must be entirely voluntary, not induced by the flattery of hope or the torture of fear, nor elicited by promises of light punishment or non-prosecution. Confessions induced by hope held out to the prisoner by the public prosecutor, or an officer having the prisoner in custody, by a magistrate, or by any one having authority over him or concerned in the prosecution itself, or by a private person in the presence of one having such authority, are not voluntary and cannot be received.5 Confessions resulting from spiritual exhortations, promises • 1 Greenleaf, Sec. 222. of secrecy, or promises of reward having no connection with the criminal charge, are, however, deemed voluntary. However, any threats of violence, or any element of judicial compulsion will render a confession involuntary and vitiate the same as evidence. Where the defendant submits himself to examination at a coroner's inquest or preliminary hearing, he, of course, subjects himself to cross-examination. It has sometimes happened that a severe cross-examination has elicited statements from an accused person in the nature of confessions, or at least admissions, from which an inference of guilt might arise. Query. Are these statements admissible upon the trial of the prisoner? When the cross-examination has been unusually severe, so as to savor of brow-beating or compulsion, it has usually been held that such admissions are not voluntary and should be excluded." SECTION 32. CHARACTER AND REPUTATION. Character has been defined as the "sum of the inherited and acquired ethical traits which give to a person his moral individuality."" The term "reputation" applies to the opinion which others have formed and expressed as to his character. In a number of civil actions, such as libel and slander, seduction, malicious prosecution, false imprisonment, breach of promise and criminal conversation, the character of the plaintiff becomes material to the issue and directly concerns the assessment of damages. In other civil cases, it is generally held that the reputation of the plaintiff is not in issue. From the earliest times, however, in criminal cases, a person accused of an infamous or capital crime has been permitted to show his good character. • McKelvey on Evidence. Sec. 99. 73 Enc. of Ev., p. 3. In modern prosecutions, whether for treasons, felonies or misdemeanors, for offenses existing at common law or made so by statute, the good character of accused may be proved and rebutted, to mitigate or enhance the punishment to be fixed by the jury. In order to be put in issue by the prosecution, the character of the prisoner must be an essential element of the crime charged; otherwise if the accused does not offer evidence as to his character or reputation, the State cannot put it in issue. In most jurisdictions, in the impeachment of a witness, the testimony as to his character is limited. to his general reputation for truth and veracity in the community in which he lives. In other states, evidence may be offered as to his general moral character. In prosecutions for murder and manslaughter, testimony as to the reputation of the victim should be limited to his reputation for peace and sobriety in the neighborhood in which he lives at the time of the occurrence. SECTION 33. MARKET VALUE. The subject of "market value" is closely connected with hearsay, in that, in the usual routine of business, merchants, commission men and brokers, are wont to rely upon market and stock quotations and reports of sales, or sales, a knowledge of which they have obtained by hearsay. Real estate brokers daily base their estimates or opinions on reported sales or reports of income derived therefrom. While such sales or income cannot be proved by such reports, or by market or stock quotations, yet such sales having been proved by eye witnesses having competent knowledge thereof, opinions of experts based thereon are admissible to prove market value, and to say whether or not such transactions represented the true market value. In actions for breach of contract for goods sold, and not delivered, or not accepted, the market value of the goods at the time and place of delivery must be shown. SECTION 34. TESTIMONY OF WITNESSES DEAD, ABSENT OR DISQUALIFIED. The question often arises whether the testimony of a deceased or absent witness given in a former action between the same parties is admissible in evidence. This question may arise concerning testimony in a written deposition or given orally in court. The reasons underlying its admission or exclusion are the same in either case. And it may be that a witness, about to depart from the State, his testimony was taken in a written deposition, but afterwards returned to the State and testified orally in court at the time of the trial. In the latter case, if the witness be dead at the time of the second trial, the question arises as to whether the oral testimony or written deposition, or either, or both, be admissible in evidence. And if so, how to proceed. It has been held admissible to introduce in evidence, not only the written deposition, but, if preferred, the oral testimony of the deceased witness given at the former trial, notwithstanding the existence and accessibility of the deposition. The earlier cases held that the precise words of the deceased witness should be given, and that to state the substance of them was inadmissible. The later cases, however, have relaxed the rule somewhat. |