The court said: "It is to be borne in mind that the burden of proving the intent of the insured to revoke the designation of his children as beneficiaries rested on the claimant; the company's assumption of a neutral position cannot give the paper under which he claims the effect of a revocation of the designation, unless it was so intended by the insured. That there are expressions in the paper which are consistent with, and perhaps tend to show, such intention, cannot be disputed, but they are also consistent with what the paper purports to be, an attempted assignment. It bears evidence on its face that it was not drawn hastily, nor by one unskilled in such matters. It was evidently drawn with care, and by one who knew the technical meaning and effect of the words employed. The requisition of the policy as to change of beneficiary is very simple, and it seems highly probable that some allusion would have been made to it, if that was the purpose intended to be accomplished by the paper. But none of its language purports to be a request to be filed with the company for such change; while great care is exhibited in expressing the intent of the insured as to the. assignment,

un

the subject of change of beneficiary is not mentioned; the paper is not addressed to the company; nor does it affirmatively appear in the paper itself, or aliunde, that the insured intended it to be filed with the company; nor is it distinctly alleged that the duplicate was forwarded to the company by his subsequent direction. In conclusion, neither the paper itself, nor the action of the insured with reference thereto, exhibits a clear intent on his part to exercise the right reserved by the terms of the policy to have his creditor substituted, eo instanti, for his children as beneficiary, or to do more than to transfer such right as he could by a bare assignment. And, in the absence of such intent, it is impossible to give an assignment of the policy, in payment of or as collateral security for a preexisting debt, the effect of a change of beneficiary in the mode provided

by the policy, upon the ground that equity looks upon that as done which ought to be done."

Although an assignment as collateral security, not made in compliance with the formal requirements of the policy, cannot devest the rights of the beneficiary in favor of the assignee, the latter is entitled to be reimbursed for premiums paid by him. Douglass v. Equitable Life Assur. Soc. (1922) 150 La. 519, 90 So. 834.

Contra.

In Missouri State L. Ins. Co. v. California State Bank (1919) 202 Mo. App. 347, 216 S. W. 785, it was held that where insured merely indorsed on his policy an assignment as collateral security and delivered the policy to the assignee, the latter was entitled to receive from the proceeds the amount of insured's indebtedness to it. The court said: "If the provision in the policy that the insured might assign it is not in itself authority for him to transfer all beneficial rights and interest of whatever character in it, regardless of the permission to change the beneficiary, then these provisions of the policy, that is, that the insured could change the beneficiary and assign the policy, conferred that right. The insured has the right to assign the policy and change the beneficiary, and, the beneficiary having no vested right in the policy at the time of its assignment, it is apparent that the insured assigned all beneficial interests that could accrue under the policy to secure his debt, . . . subject, of course, to the full rights of the beneficiary being restored upon the fulfilment of the conditions of the pledge."

So, it was held in Rattray v. Banks (1924) 31 Ga. App. 589, 121 S. E. 516, that, the beneficiary having no vested interest in the policy, an assignment by insured to a creditor, for the purpose of securing an indebtedness which was less than the face value of the policy, amounted to a change of beneficiary pro tanto. And see the reported case (MERCHANTS BANK V. GARRARD, ante, 102).

In Martin v. Stubbings (1888) 126

Ill. 387, 9. Am. St. Rep. 620, 18 N. E. 657, where insured's mutual benefit policy permitted a change of beneficiary, but did not require formal notice to the insurer, it was held that his assignment of the same as collateral security, with authority to his creditor "to apply so much of the proceeds thereof to the payment of (the debt) as may be necessary to pay the same," having been recognized by the insurer, should be given effect to the extent necessary to satisfy the indebtedness secured. It was there said: "It must be admitted that there is neither in the statute nor contract any express prohibition of an assignment by a member of his certificate of membership to his creditor, so as to constitute such creditor a beneficiary of the fund payable at the member's death. . . . In the present case, the power of revoking or changing the appointment of the beneficiary was reserved to [insured] by the terms of the contract in the broadest possible manner. . . . In substantial compliance with the application, the certificate named as beneficiaries his widow, children, or heirs, in the order named, unless otherwise ordered by him during his lifetime or by his will. The constitution, of the society, which was incorporated into and made a part of the certificate of membership, provided that any member, having designated his beneficiary or beneficiaries, might change the same at his pleasure, without notice to or consent of the

beneficiary or beneficiaries, and that all accepting any interest in the certificate or the society did so upon those express terms. Under these circumstances it is perfectly clear that [beneficiary] .. had no vested interest or property rights in the certificate of membership or the moneys to become payable thereunder, during the lifetime of her husband, and that the certificate, at the time it was assigned, . was subject to the absolute control of [insured] and that it was then in his power, either with or without the consent of his wife, to make any disposition of it which did not conflict with the terms of the contract itself, or the organic law of the society."

It was held in Atlantic Mut. L. Ins. Co. v. Gannon (1901) 179 Mass. 291, 60 N. E. 933, that insured's written assignment to one who was her creditor and nearest relative, of a policy permitting a change of beneficiary, the assignment transferring "all benefit and advantage to be derived" from the policy, and consented to by the insurer, constituted the assignee the beneficiary under the policy, in place of the persons originally named therein.

And a parol assignment in payment of valuable services rendered was held in Lovinger v. Garvan (1920) 270 Fed. 298, to be enforceable in equity after the death of insured, without completing a formal change of beneficiary. M. F. L.

38 A.I.R.-8.

a declaration not in the nature of a confession, although it may tend, in connection with other circumstances, to prove guilt.

Evidence, § 975 confession sufficiency of warning.

4. A warning to an accused that he is under arrest, and that he is not compelled to make any statement, but, if he does so, it is done voluntarily, understanding his rights, as any statement he may make may be used either for or against him in court, is not misleading, ambiguous, or improper, but is sufficient to render a confession admissible at the trial of accused.

[See 1 R. C. L. 568; 1 R. C. L. Supp. 204.]

both Pelletier and Alice Arseneault." On or about December 25, 1919, she disappeared.

There was evidence that shortly

The defendant was indicted on May 14, 1920, for the murder of Alice Arseneault on December 26, 1919. At the trial of the defendant in June, 1922, the jury returned a verdict of guilty of murder in the first degree.

Alice Arseneault was the proprietor of a lodging house at 517 Columbus avenue, Boston. In September, 1919, the defendant came to her house as a lodger, and from that date to the date of her disappearance "friendly intimacy was observed between them." Between these dates one Arthur Pelletier called upon Alice Arseneault. These visits of Pelletier occasioned the disapproval of the defendant, and, according to the testimony of a witness for the commonwealth, the defendant stated on one occasion, when Pelletier and the woman were together in a room with the door closed, that some day "he [the defendant] would get mad and kill

ant disposed of her personal property, and on January 7, 1920, sold the furniture of the lodging house for $875. The bill of sale purported to bear the signature of Alice Arseneault. On May 11, 1920, her body was found buried in an ash pile in the cellar of the lodging house. There were a number of stab wounds on the body, and her throat was cut from ear to ear. The defendant was apprehended in Montreal, Canada, some months following the murder, and later brought to police headquarters in Boston, where he made a statement in the presence of certain police officers, including Captain Ainsley C. Armstrong. Before doing so he was warned of his rights by Captain Armstrong, who said to him: "You are now under arrest, charged with the murder of Alice Arseneault. You are not compelled to make any statement; if you make a statement you do so voluntarily, fully understanding your rights, as any state

The statement of the defendant, made to the police officers, was admitted subject to his exception. The sole question raised by the defendant's bill of exceptions relates to the admission of this recital. The defendant claims that the warning given him was "ambiguous, misleading, and improper," and that for this reason the statement should not have been admitted against him at the trial.

Evidencestatement as confession.

In this statement the defendant did not admit his guilt. It was not a confession. A confession is an acknowledgment of an offense. He said that he did not know who killed Alice Arseneault; that the last time he saw her was on Christmas night, when she was in the parlor with "two fellows;" that he first learned of her death from a newspaper acccount, which he saw in Akron, Ohio. He related where he had lived since Christmas,. 1919, and admitted other facts, not acknowledging guilt, from which admissions inferences might have been drawn by the jury.

The statement of the defendant to the police officers was clearly admissible against him, and there was no error in the ruling of the court on this point. The rule which excludes a confession of guilt by a defendant, which he was induced to make through fear of personal injury or hope of personal benefit, is not applicable to the declaration by defendant not in the nature of a confession, although the declaration might tend, in connection with other circumstances, to prove his guilt. Com. v. Piper, 120 Mass. 185, 188, 189.

-statement of accused.

a

authority is presumed to be voluntary, and the one -burden to objecting to its ad- show confession mission must show

not voluntary.

that it was made because of threats or promises. Com. v. Szczepanek, 235 Mass. 411, 126 N. E. 847; Com. v. Piper, supra; Com. v. Tuckerman, 10 Gray, 173, 190, 193. There was no evidence that the statement of the defendant was made througn fear or because of promise of some benefit. From all the evidence in the case his declarations were shown to have been freely and voluntarily made. He was told that he was under arrest and charged with the murder of Alice Arseneault; that he was not compelled to make any statement, and that if he did so it was to be done voluntarily, "understanding your rights, as any statement you make can be used either for or against you in court." This preliminary warning was not "ambiguous, misleading, and improper," as the defendant claims. He was sufficiency of warning. clearly and distinctly informed of his rights. He was not misled, and the warning given by the police captain was not improper.

-confession

In Com. v. Storti, 177 Mass. 339, 343, 344, 58 N. E. 1021, the defendant was on trial for murder. He made a confession through an interpreter. According to the interpreter's testimony the defendant was told, "What would be against him, that will be brought in court against him, or in favor, as it was;" and the court, speaking through Chief Justice Holmes, said of the preliminary warning: "We understand this to mean in imperfect English that whatever was said would be used in court against the defendant if unfavorable, or for him if favorable. It is hard to find an inducement to make a confession or to say things unfavorable to himself in these words."

I. Introductory, 116.

II. Presumptions:

a. View that confessions are voluntary, 116.

b. View that confessions are involuntary, 118.

III. Burden of proof:

a. View that burden is on prisoner, 118.

1. Introductory.

The rule now obtains that "a confession of a person accused of a crime is inadmissible in evidence if not freely and voluntarily made." 1 R. C. L. p. 552.

It will be seen that the courts are not agreed on the subject of this annotation.

Under subd. IV., infra, are collected decisions of various jurisdictions where there seems to be lack of definiteness or lack of agreement in the decisions.

The reader will understand that under subd. V., infra, "Statutes," no attempt is made to give the statutory law of various jurisdictions, but only the decisions as they appear to be affected by the statutes.

This annotation does not include the question whether, where an improper inducement has been made, it is presumed or not that the influence of the inducement makes a subsequent confession involuntary.

II. Presumptions.

a. View that confessions are voluntary, Some cases assert a rule that confessions are presumed to be voluntary.

Maine.-State v. Grover (1902) 96 Me. 363, 52 Atl. 757, 12 Am. Crim. Rep. 128.

Massachusetts.-Com. v. Sego (1878)

III. continued.

b. View that burden is on state, 119.

IV. Particular jurisdictions:

a. Florida, 124.

b. Iowa, 125.

c. Wisconsin, 125.
d. Various, 125.

V. Statutes, 126.

VI. Miscellaneous, 131.

125 Mass. 210; Com. v. Culver (1879) 126 Mass. 464, 3 Am. Crim. Rep. 81 (arguendo); Com. V. Szczepanek (1920) 235 Mass. 411, 126 N. E. 847.

Michigan. People v. Barker (1886) 60 Mich. 279, 1 Am. St. Rep. 501, 27 N. W. 539.

Missouri.-State v. Meyers (1889) 99 Mo. 107, 12 S. W. 516; State v. Spaugh (1906) 200 Mo. 571, 98 S. W. 55; State v. Armstrong (1907) 203 Mo. 554, 102 S. W. 503; State v. Hart (1922) 292 Mo. 74, 237 S. W. 473; State v. Reich (1922) 293 Mo. 415, 239 S. W. 835; State v. Seward (1922) — Mo. 247 S. W. 150; State v. Hayes (1922) Mo. 247 S. W. 165. See also State v. Jones (1902) 171 Mo. 401, 94 Am. St. Rep. 786, 71 S. W. 680; State v. Stebbins (1905) 188 Mo. 387, 87 S. W. 460; State v. Hottman (1906) 196 Mo. 110, 94 S. W. 237; State v. McNeal (1922) Mo. - —, 237 S. W. 738. New York. Williams's Case (1816) 1 N. Y. City Hall Rec. 149.

North Carolina. — State v. Sanders (1881) 84 N. C. 728; State v. Christy (1916) 170 N. C. 772, 87 S. E. 499.

Ohio.-Rufer v. State (1874) 25 Ohio St. 464.

Oklahoma.-Berry v. State (1910) 4 Okla. Crim. Rep. 202, 31 L.R.A. (N.S.) 849, 111 Pac. 676; Hix v. State (1925) Okla. Crim. Rep. 232 Pac. 123. See also Hembree v. State