MR. JUSTICE REYNOLDS
delivered the opinion of the court.
Defendant was charged with grand larceny, tried and convicted, and judgment followed. Motion for new trial was made and overruled. Defendant has appealed from the judgment and order overruling the motion. Motion was made in this court to dismiss the appeals because of delay of appellant in serving and filing transcript and brief.
Defendant was employed by the Union Bank & Trust Company of Helena, and was under the immediate supervision of R. O. Kaufman, one of its officers. The bank arranged for a shipment of $40,000 in currency from Butte, which reached Helena on the fifth of November, 1919. Defendant, although [397] not authorized to do so, called at the postoffiee for the package and received it. His conduct while returning to the bank attracted the attention of one Mrs. Agnes Watkins, who saw him, with a package in his hand, enter a building on Park Avenue known as the Old Kleinschmidt building. Later he was seen by her to emerge from the building without the package, and proceed rapidly in the direction of the bank. Later defendant was found lying face downward in a small shed or alleyway, bound and gagged, and with the appearance of having been seriously injured. He was taken to the hospital, where he first told a story of having been robbed. However, there were features in connection with the story which caused it to be disbelieved, and thereafter defendant made several different statements as to the affair which evidently were false. The questions involved on these appeals relate to the admissibility of evidence, alleged errors in giving and refusing instructions, newly discovered evidence, and misconduct of counsel for the state.
[1] The contention is not made that defendant was innocent of the crime charged, but that technically he did not receive a fair trial in the respects mentioned. While an accused person, even though guilty, is entitled to a fair trial, yet this court will not grant a new trial where the record conclusively establishes the guilt of the defendant, even though there was error, unless it clearly appears that the error of which complaint is made actually prejudiced the defendant in his right to a fair trial.
[2] It is alleged that the court ei*red in admitting in evidence the testimony of witness Patrick Keyes, wherein he stated that at a short time prior to the larceny defendant stated that he “thought it was unfair for some people to have hundreds of thousands or a million dollars, and a poor person not have any; he thought the money should be distributed equally with everybody, and the most of the people that had lots of money, they got it by robbing the poor people,” in that connection referring particularly to Mr. McKinnon, president [398] of the Union Bank & Trust Company. Objection was made to this testimony on the ground that it only tends to show the philosophy of the defendant, which has no probative value, and that it was not connected, either direetly or indirectly, with the issues involved. It may be conceded that this evidence is somewhat remote, but we cannot hold that it was entirely immaterial. Such evidence tends to show the mental attitude of the defendant toward private rights in property, and, while not direct evidence that he did or would commit such a crime, yet it has a bearing in showing a prejudice against people who have acquired property, particularly the president of the bank from which bank the money was taken, which, in turn, would tend to make it easier to excuse one’s self in an attempt to take such property from another who, he believes, has illegitimately secured it.
[3, 4] The state offered in evidence testimony of Lester Lightbody, deputy sheriff, as to certain statements against interest made by defendant, to which defendant objected and saved his exception. The first statement was included within the following testimony: “At this time, when the name of Marias or some similar name was given, the defendant was asked — I think Mr. Barnes said, ‘Charley, them ain’t the names of them fellows; you know the names of them,’ and he said, ‘Is it Ford and Blodgett?’ And Stevens says, ‘Yes.’ He said they was to meet him at the Palmer House that night and divide the money. Ford and Blodgett was arrested that morning about five minutes after Stevens told us this. Stevens was then taken to the county jail, and Ford and Blodgett were arrested at the Palmer House. I was present in the jail later when Ford and Blodgett and Stevens were there.”
The second statement was included in the following testimony: “He told me he was sorry that he got Ford and Blodgett in any trouble; that they were innocent of any wrongdoing. He said they had nothing to do with it. At this time he said Ralph Kaufman had something to do with it, and that he turned the money over to Kaufman. The story [399] he told me as to how the whole thing happened was that he was to go and get the money and was to go back to the bank with it, and that if nobody there had seen him come in he was to go down to the basement with the money. As to where they made this arrangement, he said that Mr. Kaufman came up to his desk and made the arrangement at his desk; that he said he had been very good in helping him along, and intended to keep on helping him, and then he told him he wanted Stevens to go and get this money and fetch it to him. He did not say that Earl Fallon had any connection with this story. He did not tell me anything about Fallon at this time at all, not on that day at all; it was the next day he told me about Fallon. As to what he said when he came back to the bank and just how they arranged that, he said he went down to the basement and turned the money over to Mr. Kaufman. He told me how much he was to receive for his part in it; he was to receive $500. He did not say who was to get the rest. With reference to the explanation he made to me relative to any footmarks or finger-prints on State’s Exhibit- 15, the paper, I told him it looked peculiar to me when a paper would be found in that building when it could be burned up in the basement, and what was his idea in going back with the paper; he said that it wasn’t his idea; that Kaufman wanted him to take the paper back there. As to the way he said any print got on the paper, he told me Mr. Kaufman had him step on the paper in the basement, and had him put his hand in the dust and put the finger-prints on the paper, and that Mr. Kaufman had him take the paper back to the Kleinschmidt building. He did not explain to me at that time how he came to be tied up. I had a further conversation with him about Fallon; I had several conversations with him about Fallon, but he never said anything connecting Fallon with it at all, with the exception of once when he said he didn’t see why ‘they didn’t get Fallon and put Mm in jail, as well as putting me in jail.’ He was asked at that time as to why Fallon should be put in jail, and he refused to answer. TMs defendant told me the money was [400] in the bank; he said he turned it over to Mr. Kaufman. He told me the reason he told the story about the robbery and of the automobile being in the alley was because that was the first story that he and Kaufman had made up. He told me that when he seen the officers did not believe the story Mr. Kaufman said, ‘Charley, we will have to change that story; they don’t believe it.’ According to what Stevens said, it was Kaufman that told him to tell the Ford and Blodgett story, and he said they made the arrangement to tell the Ford and Blodgett story in the county jail.”
Objection was also made to the introduction in evidence of State’s Exhibit 28 on the same ground, which exhibit consists of a written statement in defendant’s handwriting, and is as follows: “The man by the name of Ford whom I saw in the county jail Friday morning, November 7, stopped me on Main Street some time I believe during the month of September, and wanted to carry a sack of silver containing $1,000 to the express office. Two different times, either before or afterward, he stopped me on Main Street and remarked about large packages of currency from the postoffice. Yesterday morning while I was on my way to the postoffice I met this man Ford, accompanied by a gray-haired man, whom I also saw in the county jail at the same time Ford was there. I have been since told that the gray-haired man’s name is Blodgett or similar name. I know him positively when I see him. These men mentioned to me about a package of money at the postoffice. They told me to let them have the money when I secured it, and I would make some haul. They said to come down Park Avenue, and they would take it and do away with the whole thing, and at the same time make a hell of a fight to keep it. Most of the talking was done by Ford. I went to the registry window at the postoffice, and Mr. Faith refused to let me have the registered mail, and said my order had been canceled, so I said that I would get Mr. Chivers or someone with authority to come and get it; I went back to the bank by way of Park Avenue, but seen neither of the men. After lunch I again [401] went back to the postoffice after doing some errand, and got the common mail, and then went over to the registry window, and Mr. Williams said, ‘What bank?’ and I said, ‘Union,’ and he gave me the registered mail, three in all, including the currency which was stolen. I went down Park Avenue, and one man stepped out of the empty building and walked down the street, and then I came to an open door, and inside stood the two men, and received the currency, and also grabbing my leather pouch, containing some $600. There are the two men above described. I also went into the building and was knocked down by one in trying to secure my leather pouch. Then they said they would hide it, and then the both of them and myself went over to the back of the Smoke House, and I was gagged by both and tied and that was all I can remember, only that I was to meet them in the Palmer House last night; they told me in the old empty rock building above mentioned I would receive my share.”
The objections to these statements and exhibit were based on the claim that each of them constituted a confession by defendant, and therefore they were not admissible in evidence under the rule that a confession may not be received in evidence unless a proper foundation is laid therefor, showing that it was made voluntarily, without threats or inducements whereby there might appear to be an object in the accused making a false confession. This rule was not established to protect the guilty against his truthful confession, but is designed to guard the innocent against a false confession made under duress, promise of reward of some nature, or other inducement. If the foregoing statements constituted in law confessions,- then this question of their admissibility would arise. The state, however, contends that these statements were not confessions, but merely admissions. If they were admissions, then the rule applicable to confessions does not apply, for admissions against interest are always competent without such a foundation being laid, with the privilege, however, to the opposite party on cross-examination to show the circum[402] stances under which they were made, which circumstances may be considered by the jury in determining the weight to be given to them. The vital point, then, is whether or not the statements hereinbefore set forth were admissions or confessions.
This court has discussed this question concisely but clearly in the case of State v. Guie, 56 Mont. 485, 186 Pac. 329, where Wharton’s Criminal Evidence on this subject is .quoted with approval by Mr. Justice Holloway, who delivered the opinion of the court: “The distinction between a confession and an admission, as applied in criminal law, is not a technical refinement, but based upon the substantive difference's of the character of the evidence deduced from each. A confession is a direct acknowledgment of guilt on the part of the accused, and, by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction.”
A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, and it is only with respect to confessions thus defined that the rule prevails that preliminary proof that they were voluntary must be made before they can be admitted in evidence. (People v. Fowler, 178 Cal. 657, 174 Pac. 892.) “Unless the statement of the defendant is broad enough to comprehend every essential element necessary to make out the case against him, it cannot be said to be an admission of guilt.” (Owens v. State, 120 Ga. 296, 48 S. E. 21.) “A ‘confession’ in a legal sense is restricted to an acknowledgment of guilt, made by a person after an offense has been committed, and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred.” (State v. Reinhart, 26 Or. 466, 38 Pac. 822.)
[5] If any one of the statements made by defendant constituted a direct acknowledgment on his part that he stole the [403] money, then such statement constitutes a confession, but if it was merely a statement of relevant facts from which guilt might be inferred, of itself insufficient to authorize a conviction, then it was merely an admission. In the first statement defendant merely charged Ford and Blodgett with the larceny, and said that they were to meet him that night to divide the money. The statement was a statement of facts from which guilt might be inferred, but was not an acknowledgment that he had appropriated the money, or any part thereof, to his own use, with intent to deprive the true owner thereof, which elements were necessary to establish his guilt. The second statement consisted, in substance, of a charge that Mr. Kaufman directed him to get the money and to deliver it to him in the basement of the bank, that he did so, and that he was to receive $500 for the service. From this statement alone the essential elements of the crime are not shown, and no conviction could possibly have been based upon it. It does not even appear from that statement that he ever received the $500 promised, or any other portion of the money that was taken; and, so far as getting the money and delivering it to Kaufman was concerned, that could not constitute a larceny on the part of defendant, because Kaufman was his superior officer in the bank, and one who had the right to direct defendant to get the money and turn it over to him. The only allegation in Exhibit 28 which would be incriminating at all would be the statement by defendant that he went down Park Avenue, stepped inside the open door of an empty building, when two men received the currency and grabbed the leather pouch containing $600, knocked him down, and said that they would hide it, and that they went with defendant to the back of the Smoke House, gagged him, and that defendant was to meet them at the Palmer House that night, where he would receive his share. The foregoing is a statement of facts from which an inference may readily be drawn that defendant was in a conspiracy with these men to commit the crime, but it is not an acknowledgment that he stole the money. He does not say [404] that he voluntarily delivered the money to the men, or that he voluntarily submitted to being gag'ged and tied by them, or that he afterward went to the Palmer House to meet them, or received any share of the fund.
[6] It is also to be noted that these statements of defendant were not used as confessions to prove the facts set forth in the several statements. They were contradictory of each other, and the state tried its case upon the theory that each of them was absolutely false; hence the state did not contend that as confessions they categorically established the guilt of defendant, but merely that they showed his attitude toward the crime. Naturally an innocent man will tell the truth regarding the affair in question, and not make misrepresentations inconsistent with each other. For these reasons the statements in this case were inconsistent with any theory of innocence on the part of defendant, thus tending to prove his guilt, even though on a different state of facts; and for this reason they were competent evidence as admissions of facts made against interest. It is therefore our opinion that the ruling of the court in holding that these various statements were admissions and not confessions was correct, and hence no error was committed in the court’s rulings upon the objections.
[7] It is urged that the court erred in admitting evidence of Gilbert Benedict to the effect that a short time before the date of the larceny defendant, together with one Mrs. McNamara, came to him for the purpose of borrowing $4,000, and that he did not have the money to give to them. Efforts on the part of defendant charged with larceny, made to secure money shortly prior to the alleged crime, are admissible in evidence for the purpose of showing an inducement or motive for committing the crime. It must be presumed that a person will not seek to make a loan of money unless he wants the money, and if he wants the money then that fact is in itself a motive for stealing it.
[8] Complaint is made that the court erred in giving to the jury instruction No. 24, which reads as follows: “A [405] defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but he may be sworn and may testify in his own behalf, and the jury in judging of his credibility and the weight to be given to his testimony may take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he is accused. If the defendant does not claim the right to be sworn, or does not testify, it must not be used to his prejudice, and the attorney prosecuting must not comment to the court or jury on the same.” Objection was made for the reason that in this case the defendant did not take the stand, and therefore any charge to the jury advising it how to judge of his credibility and the weight to be given to his testimony was improper. The instruction in question is a literal copy of the statute, and unquestionably is a correct statement of the law. (Rev. Codes, sec. 9484.) Inasmuch as the defendant did not take the stand in his own behalf, it was unnecessary for the court to instruct the jury in regard to the weight it should give to his testimony, for he gave no testimony to consider; but we are unable to see wherein the giving of the instruction could have been harmful. Since defendant did not testify, the jury could not act upon that portion of the instruction.
[9] Defendant offered three different instructions, to the effect that if defendant took the money from the United States postoffice with the intention to steal the same and thereafter appropriate the same to his own use and benefit with the intention of depriving the true owner thereof, then the offense would be one over which the federal court has exclusive jurisdiction. It may be conceded that, under a situation such as is set forth in the instruction, such offense would be a violation of the laws of the United States, and that it would be such an offense as would be within the jurisdiction of the federal courts, although we do not pass upon that question. The mere fact, however, that it was an offense against the federal law does not deprive the state court of jurisdiction in the prosecution of an offense that defendant may have committed [406] under the state law. The jurisdictions are not conflicting, but each has full and complete jurisdiction in its respective courts. A similar situation exists as to many crimes, among which are the familiar one of sedition and counterfeiting. We find no error in the refusal of these offered instructions.
An instruction was offered by defendant as to the weight to be given to the alleged confessions which were admitted in evidence, going into detail as to the facts and circumstances which should be considered by the jury in determining the weight to be given to them. The court gave an instruction practically verbatim of that offered by defendant, except that the word “admissions” was inserted in place of the word “confessions.” In view of our holding that these statements were admissions, the court properly modified the instruction as above mentioned, and as properly refused the one offered by defendant.
Several other instructions were offered by defendant regarding the weight to be given to the alleged confessions, and the necessity that such confessions be freely and voluntarily made before they may be received as evidence. These instructions were properly refused on the theory that the statements were admissions and not confessions.
[10,11] Exception was taken to the refusal of the court to give the following offered instruction: “You are instructed that you have a right to consider any statements shown to have been made by the defendant after the charge was made against him, but in considering such statements you must consider the whole statements or conversation together. The defendant is entitled to the benefit of what he said in his own behalf, if you believe it is true; but if you do not believe it is true, you are not bound to believe and consider it because proven by the state. You should consider such statement, however, with caution, on account of the liability of the witness to forget or misunderstand what was really said or intended.” This instruction contains some features of merit, but other features are clearly not meritorious, and therefore were [407] sufficient to justify the court in refusing it. It is true that in considering statements made by defendant the jury should consider the whole statement or conversation given, and that any admissions made by defendant should be received with caution, on account of the liability of the witness to forget or misunderstand what was really said or intended. The balance of the instruction, however, is somewhat confusing, and this court is not sure of the interpretation that the jury would have given to it if it had been given as requested. At least it contains the element of instructing the jury that it may give the defendant the benefit of any statements that he may have made in his own behalf. The rule is elementary that evidence of statements in behalf of the party making them is not competent, but only such statements as are made against interest. If this offered instruction is to be interpreted to mean that any statement that defendant may have made in his own behalf shall be considered as evidence in his favor, then the instruction would be clearly erroneous. However, in view of the confusion that might have resulted and the possible misinterpretation of the instruction by the jury if it had been given, the court was warranted in refusing it.
[12] Objection was made by defendant to alleged remarks of the county attorney in his closing argument. In this connection it may be well to remark that the address of the county attorney is not shown in the transcript, nor are any of the portions of it to which objection was made settled in any way by the court. The record merely shows the objections of defendant without any record to which the objections can apply. If appellant desires to have such questions reviewed in this court, the record should show what actually took place, so that there may be no uncertainty as to what the facts in question were. Furthermore, inasmuch as the text of the county attorney’s address is not before us, we are unable to determine the connection in which the remarks in question were used. It is universally recognized that a single statement or remark, standing alone, apart and separate from the con[408] neetion in which it was used, cannot be accurately interpreted. Oftentimes remarks, when separated from the context, are construed to convey ideas just the opposite of those expressed. If the statements were made as set forth in these several objections, we cannot give them a proper construction without the con text, and therefore are unable to say that such remarks were in any way prejudicial to the interests of the defendant.
[13,14] It is also contended by defendant that in connection with the alleged improper remarks of counsel above discussed, and from evidence contained in the record of unfair methods employed by him in obtaining admissions and confessions from defendant without permitting him to have the benefit of advice of counsel or otherwise advising him as to his rights, and in permitting others to use improper methods in obtaining such admissions and confessions, misconduct on the part of counsel is shown prejudicial to the rights of defendant, and that thereby defendant was deprived of that fair and impartial trial guaranteed him by the Constitution and laws of the state of Montana. The alleged improper methods referred to were the persuasion and inducements which were brought to bear upon defendant to secure from him a statement of the truth in connection with the matter. There is no question but that the so-called “third degree” methods can be carried to the extreme, and when so employed are reprehensible. In this case we do not say that extreme “third degree” methods were used, but, as testified to by Mr. Kaufman, he held out to the defendant certain inducements and strong persuasive arguments in order to secure a statement, particularly as to the location of the money. The statements made having been admissions as hereinbefore pointed out, all the facts and circumstances connected with the making of the statements were admissible in evidence as bearing upon the weight to be given to the statements, and the record discloses that these facts and circumstances were thoroughly brought out. The impropriety of the inducements merely went to the weight of the evidence, and were for the jury to consider in [409] determining that question, but such impropriety would not constitute a ground for a new trial. The acts that were done cannot be undone, and the facts in regard to such alleged impropriety would be the same upon another trial as upon the trial that has already been had. The interests of defendant in this respect were as fully protected on the trial as he could rightfully demand, and as well as they could be protected on another trial, if granted. There is nothing in this matter whereby it can be said that defendant was deprived of the fair and impartial trial guaranteed him by the Constitution and laws of this state.
[15] Defendant insists that a new trial should he granted on the ground of newly discovered evidence, which newly discovered evidence is set forth in the record by stipulation. As this matter is covered by stipulation, it is safe to assume that the allegations therein made are correct. It appears from this stipulation that after the trial and sentence of defendant it was discovered that Mrs. Agnes Watkins had disclosed to her husband the circumstances of seeing defendant go into the Kleinschmidt building and his strange actions, including the fact that he went into the building with the package, and came out without the package, and as a result of this disclosure her husband and one Frank Smith went to the building and found the money. The money was divided, and a considerable portion of it spent by the Watkinses. Smith, with his share of the money, disappeared, and has never been found. The Watkinses were charged with larceny, and pleaded guilty to the charge. From this stipulation it appears that defendant reaped no profit from the larceny with which he was charged. Inasmuch as the court gave him the maximum sentence in the penitentiary of from seven to fourteen years, without knowledge of the facts revealed by this stipulation, it is contended that, while this newly discovered evidence would not have any effect upon the result of the trial as to whether or not the defendant should be found guilty, yet it would probably have the result of reducing- the sentence. However that [410] may be, which is merely a presumption, yet this court cannot invade the province of the district court in imposing sentence upon him who has been convicted of a crime. That is a matter exclusively within the absolute discretion of the trial court. So far as we know, no case has ever been reversed because the sentence was excessive. If, in view of the newly discovered evidence defendant or his counsel deems the sentence excessive, then his remedy is to appeal to executive clemency, and not to this court. In our view of the case, the newly discovered evidence fits in perfectly with the statement of defendant that he left the money in the Edeinschmidt building, supplemented by the testimony of Agnes Watkins that she observed his actions at the time, and conclusively establishes the guilt of defendant. As suggested in the forepart of this opinion, error prejudicial to defendant must be shown before a new trial can be ordered, and the record fails to show any such error.
The motion to dismiss the appeals is denied, and the judgment and order are affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.