by the better reasoning as it appears to us. The only reason for excluding a confession in any event is that the circumstances under which it was made disclose that the confession was prompted by some inducement, whether of hope or fear, sufficient to induce a reasonable person, under the circumstances of the confessing party, to make such confession without regard to its truth or falsity. In other words, if the circumstances are such as that the prospect of bettering his situation by speaking even falsely would appeal to the confessing party, as a reasonable person, as the better alternative to remaining quiet, then the confession ought not to be received; and it is therefore immaterial whether the confession was actually made in response to inducements held out by an officer or by some third person in the presence of the officer, for any reasonable person would naturally presume that an inducement held out in the presence of an officer, and not repudiated by him, received such officer's sanction or approval.

While we do not approve of all that is said in Territory v. McClin, or in Territory v. Underwood, above, we do agree with the result reached in each case, and, with the limitations which we have suggested, agree with the following portion of the opinion taken from the McClin Case: "In regard to the person by whom the inducements were offered, it is very clear that, if they were offered by the prosecutor, or by an officer having the prisoner in custody, or by a magistrate, or, indeed, by one having authority over him or over the prosecution itself, or by a private person in the presence of one in authority, the confession will not be deemed voluntary and will be rejected." Under this view of the case the testimony of the father of the defendant, as to certain statements made by him to the defendant in the presence of the officers, which statements, it is contended, operated as an inducement to the defendant to make the confessions, should have been considered by the court in determining whether the confessions were induced under such circumstances as would exclude them; and, if then the confessions were admitted, such statements might be considered by the jury along with other testimony in determining the weight to be given to such confessions. If, in submitting to the jury the question of the admissibility in evidence of the confessions, the court had been pursuing the proper course, which it did not, still, in excluding from the jury, by the instructions complain. ed of, the testimony of the father of the defendant as to the statements made by him, the defendant was prejudiced.

The principle of law which rejects a confession made by one accused of crime, when made under circumstances which indicate that some inducement was held out to the accused which would be sufficient to induce a reasonable person, in a like situation, to

speak out regardless of the truth or falsity of his statement, rather than remain silent, is based upon the unreliability of such testimony; the probability of the statements being untrue. The principle itself had its origin in a spirit of consideration shown to accused persons, and is the expression of a natural reaction from the harshness and rigor prevailing in the administration of the criminal law a century and more ago. A confession belongs merely to a class of admissions, consisting, generally speaking, of a direct acknowledgment of guilt by one charged with a crime, and, because of the danger of its untrustworthiness, is governed by a special rule applicable only, however, to its admissibility, and, when that rule is satisfied, it is to be treated as any other admission. These principles have been generally accepted; but the confusion has arisen from an apparent effort on the part of courts to establish a hard and fast rule for defining the test by which the admissibility of confessions is to be governed. Manifestly this could not be done, for the reason that every case must be governed by its own surrounding facts and circumstances. The only fair test, if such it can 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. In their desire to get away from the ancient doctrine that a confession by the accused would be received even though procured by torture, many of the courts have gone to the opposite extreme, and have held that any threat or promise made, any fear engendered in the mind of the accused, or any hope of bettering his condition held out to him, however slight, would exclude a confession made in consequence thereof, irrespective of the question whether in fact such threat, promise, fear, or hope could, or in all human probability did, influence the accused to make a false confession. And so we find many instances wherein courts have simply sacrificed justice and common sense upon the altar of mere sentimentality. It is unnecessary here to review the decisions in the cases cited by appellant. Those cases, together with the cases and other authorities cited by the attorney general, fairly illustrate the great difference of opinion which has prevailed. It is worthy of note, however, that there appears to be a tendency now manifested quite generally to apply the principles here mentioned. In 1 Wigmore on Evidence, c. 23, the entire subject is treated and the cases cited.

Certain testimony was introduced by the state as to statements made by the defendant respecting a certain mask. A motion was made to strike out the testimony, but the motion was denied. While we doubt very much

whether the defendant could have been prejudiced, the evidence appears to be irrelevant and immaterial, and these are sufficient reasons for its exclusion.

For the reasons here given, the judgment and order are reversed, and the cause is remanded, with directions to the district court to grant the defendant a new trial. Reversed and remanded.

SMITH, J. I concur.

BRANTLY, C. J. I concur in the result.

(13 Idaho, 477)

LINDSAY v. OREGON SHORT LINE R. CO. (Supreme Court of Idaho. June 14, 1907.) 1. CARRIERS - EXPULSION OF PASSENGER

PLEADING COMPLAINT.

Under the provisions of subdivision 2, § 4168, Rev. St. 1887, the complaint must contain a statement of the facts constituting the cause of action in ordinary, concise language, and in an action for damages it is sufficient under our statute to allege in general terms that the injury complained of was occasioned by negli gence of the servant or employé of the carrier in charge of the train.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1464.]

5. SAME.

In this case a husband with his sick wife entered the train. He was ejected therefrom, and his wife was carried on the train. His anxiety and mental suffering was the proximate result of the unwarranted act of the servant, which was the direct and sole cause of such suffering.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1487.]

6. HUSBAND AND WIFE-INJURIES TO WIFEACTION-JOINDER OF PARTIES.

Under the provisions of section 4093, Rev. St. 1887, the husband must be joined with the wife when she has a cause of action for personal injuries, and, if the husband has a separate and distinct cause of action for personal injuries to himself, he is not bound to join his cause of action with that of his wife.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 767.]

7. SAME-INSTRUCTIONS.

The refusal to give certain instructions reviewed and held not error.

8. SAME.

The giving of certain instructions reviewed, and held not error.

(Syllabus by the Court.)

Appeal from District Court, Bear Lake County; Alfred Budge, Judge.

Action by George E. Lindsay against the Oregon Short Line Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

P. L. Williams, F. S. Dietrich, and D. Worth Clark, for appellant. A. B. Gough and J. C. Rich, for respondent.

SULLIVAN, J. This action was brought to recover damages on account of the alleged wrongful expulsion of the respondent from one of the appellant's passenger trains at Deweyville, Utah, on or about the 19th day of August, 1905. The respondent alleges, among other things, that in the morning of that day he with his wife, who was ill, went to the station at Deweyville for the purpose of taking passage upon appellant's passenger train for his home at Montpelier, Idaho; that he had a ticket which entitled him to passage on that train; that he boarded the train, and, as he approached the door of one of the coaches thereof, the brakeman thereon, an agent and employé of the appellant company, did "maliciously, wantonly, willfully, negligently, and wrongfully" order respondent off of said train, and placed himself between respondent and the door of said coach and refused to permit him to enter said coach, or any coach; that he took hold of respondent's shoulder, and turned him from said door and commanded and thus compelled him to leave said train; that respondent's wife was a passenger on said train, and was in a feeble, weak, and helpless condition, and required his care and attention, of which fact he informed said brakeman. General damages in the sum of $975 and special damages in the sum of $25 were prayed. Demurrer to the complaint was overruled and an answer was filed, denying generally the allegations of the complaint. The cause was tried by the court with a jury, and a verdict was rendered in favor of the respondent for the sum of $300, and a judgment entered thereon. An order denying a new trial was made, and this appeal is from that order.

The first error assigned is that the court erred in overruling the demurrer to the complaint. It is contended by counsel for appellant that it is necessary in such an action as this to allege that the servant was acting within the scope of his employment. Subdivision 2, § 4168, Rev. St., provides that the complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language. It is alleged in the complaint that certain wrongful acts

were committed by the brakeman, the agent and employé of the defendant company, on Its train. It is sufficient under our practice act to allege in general terms that the injury complained of was occasioned by the negligence of the servant or employé of the carrier in charge of the train. 15 Ency. Pl. & Pr. 1132; 6 Cyc. 547, 627. The allegation is sufficient.

Under other assigned errors the theory of the appellant is that the respondent voluntarily left the train at the suggestion of the brakeman, notwithstanding the fact that he had a ticket which entitled him to passage, and that his sick wife was on the train, who greatly required his care and attention. The said brakeman testified that he did not eject the respondent from the train, but the testimony of the respondent himself and two other witnesses convinced the jury that the brakeman did expel the respondent from the train. The defendant himself testified as follows: "I picked up my baggage, and started to follow my wife into the car, and, as I started to go in. the brakeman slid in front of me, and put his hand on my shoulder and whirled me around, and says, 'Here, you had better get off.'" The sick wife testified as follows: "I heard loud talking on the outside of the coach, in the vestibule thereof, and there and then heard some person say, 'You had better get off this train.'" Another witness testified as follows: "The brakeman demanded him to get off and demanded him several times. Then Mr. Lindsay got off." We think that the action of the brakeman fully justified the respondent in getting off the train rather than waiting until he was kicked off or forcibly put off.

It is contended by counsel for the appellant that the brakeman had no authority to expel a passenger, and for that reason was acting outside of his authority, if he had expelled him, and the company would not be liable therefor. There is nothing in this contention, for the correct doctrine on this point is laid down in 3 Thompson on Negligence, 3176; Patterson on Railway Accidents. 111; 6 Cyc. p. 561. As stated in the last cited authority, it is the duty of the carrier to afford protection for its passengers, and, if it has in its employ a brakeman who ejected a passenger from a train who was entitled to ride, the company is certainly llable.

There was certain evidence introduced as to the anxiety of the respondent on account of the condition of his wife. Counsel for appellant contend that this is not a legitimate item of damages; that damages cannot be recovered for mental distress and anxiety in this case, and cites a number of authorities sustaining that position. There is a clear distinction drawn in the cases as to what anxiety and mental suffering a plaintiff who is expelled or ejected by a common carrier may recover for, and we

think the correct rule in cases like the one at bar is clearly stated in Moore on Carriers, p. 887, as follows: "Where a person has been wrongfully and unlawfully expelled or ejected by the carrier from a train or car, he may recover in an action against the carrier the amount of the fare to the place to which he was entitled to be carried, damages for the loss of time occasioned by the delay, and any other pecuniary loss necessarily caused thereby and proven to be a proximate result of the ejection, and a reasonable compensation for the indignity, humiliation, wounded pride, and mental suffering involved in and resulting from such wrongful expulsion." Sutherland, in his work on Damages (volume 3 [4th Ed.] } 943), states the rule as follows: "We conceive the correct rule to be that mental suffering or nervous shock may be recovered for whenever it is the natural and proximate result of the wrong done, if such wrong gives the injured party a cause of action." See, also, 8 Am. & Eng. Enc. of Law, (2d Ed.) p. 669, and 5 Am. & Eng. Enc. of Law, p. 707. If the plaintiff had a right of action for being expelled from the train on which he had taken his sick wife, we think it is clear that he can recover for his anxiety and mental suffering on account of thus being separated from her. The unwarranted acts of the servant of the appellant was the direct and sole cause of such separation. As bearing on this question, see Vogel v. McAuliffe, 18 R. I. 791, 31 Atl. 1; Alabama G. S. R. R. Co. v. Sellers, 9 South. 375, 93 Ala. 9, 30 Am. St. Rep. 17. In Procter v. Railroad, 62 Pac. 306, 130 Cal. 20, it was held that a woman might recover for mental distress for being separated from her baggage. If this is the correct rule, we think that a husband might be entitled to recover for mental distress for being put off from a train on which he was traveling with his sick wife, and it is suggested by counsel for respondent that a man's wife ought to sustain as close and sacred relation to him as a woman's baggage to her.

Supplemental answer was filed in this case, in which was set forth in substance res adjudicata, and in support of that plea upon the trial the appellant offered in evidence the judgment roll in the case of George E. Lindsay and Wife v. Oregon Short Line Railroad Company, in which case a judgment had been rendered for the defendant. It appears that that was an action prosecuted by the plaintiffs to recover damages on account of the physical injury and pain and agony suffered by Mrs. Lindsay. This action arose from the fact of the unlawful ejection of the husband from the train, for which unlawful act this action is prosecuted by the husband himself. It is contended that but one wrongful act is involved, and the damages being community property, plaintiff could not split his cause of action

and bring one action on account of damages to Mrs. Lindsay and then bring another action for his own wrongful expulsion from the train. It is made necessary by our statute for the husband to join with the wife in an action for damages for personal injuries to herself where the proceeds recovered is community property, and it is conceded that whatever could have been recovered, if anything, in that action would have been community. Section 4093, Rev. St. 1887. The wife, under that section, could not sustain her action to recover for personal injuries without joining her husband with her. This action the husband has brought on his own account for injuries sustained by himself, and the wife is not a proper party plaintiff in this action. The other action referred to, which was brought for injury to the wife, required judgment, if any, to run to both husband and wife, and in the case at bar the wife is not the necessary party. The wife, if she has a cause of action for personal injuries, must join her husband in the action. The husband, if he has a cause of action, need not join the wife in order to have judgment rendered in his favor. The court did not err in rejecting said judgment roll as the defendant's res adjudicata was not well taken or pleaded.

Other assignments of error go to the refusal of the court to give certain instruc tions requested by counsel for the appellant, to the effect that the acts complained of must not only have been wrongful and negligent under the pleading, but that they must have been willfully wrong. We do not think there is anything in this contention, as we are clearly of the opinion that under the allegations of the complaint the defendant might recover for ordinary negligence.

The refusal to give certain other instructions requested by counsel for the appellant is assigned as error; but, after an examination of these instructions, we are satisfied that the court did not err in refusing to give such instructions. The giving of certain instructions by the court is assigned as error. We think that the court correctly stated the law in those instructions, and that there was no error in giving them.

Counsel for appellant insist that the court instructed the jury in substance that they might award punitive damages to the appellant. We hardly think that the instructions taken as a whole go to that extent, and we think there was no prejudicial error in giving those instructions, and from the small amount of the verdict rendered it does not indicate that the jury gave any punitive damages, and we think the evidence fully justified the amount of the verdict rendered. The judgment is affirmed, with costs in favor of the respondent.

AILSHIE, C. J., concurs.

(13 Idaho, 457)

J. B. MULLEN & CO. v. MOSLEY, Sheriff. (Supreme Court of Idaho. June 6, 1907.) 1. REPLEVIN-GAMBLING DEVICES.

Replevin will not lie to recover gambling devices known as "slot machines," the same being incapable of use for any purpose, except in violation of the anti-gambling law. Act Feb. 6, 1899; Sess. Laws 1899, p. 389.

2. SAME.

A litigant will not be heard in a court of justice to wage his action against an officer of the law over the right of possession of an instrument or device designed and intended only for use in the commission of crime.

3. CONSTITUTIONAL LAW-DUE PROCESS OF LAW.

The act of February 6, 1899 (Laws 1899, p. 389), commonly known as the "anti-gambling law," is not in conflict with section 13 of article 1 of the state Constitution, as depriving the citizen of his property without due process of law. [Ed. Note. For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 778.]

4. GAMING-SEIZURE OF GAMBLING DEVICES. Section 4 (Laws 1899, p. 390) of the antigambling act, which authorizes the summary seizure and destruction of gambling devices, is a constitutional and legitimate exercise of the police power of the state for the suppression and prevention of crime and the protection of the public morals and welfare of the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24. Gaming, § 109.] 5. SAME.

The police authorities of the state may be properly invested with power and authority to seize and destroy public nuisances, and to seize such instruments and devices as are designed and intended for use in the commission of crime.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gaming, § 109.]

6. CONSTITUTIONAL LAW-DUE PROCESS OF LAW-PROPERTY.

A "slot machine,” incapable of use for any purpose except in violation of the penal provisions of the anti-gambling law, is not property within the meaning and protection of section 13, art. 1, of the state Constitution, which be deprovides that "no person shall prived of life, liberty or property without due process of law."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10. Constitutional Law, § 778.] 7. SAME-POLICE POWER.

The police power of the state extends to everything necessary or essential to the due and ample protection of the public morals, and the maintenance of the peace and quiet of the state, as well as to the protection of life and property, and, in the exercise of that power, the state may authorize its officers to summarily abate and destroy nuisances and those things specifically designed and prepared for the com

mission of crime.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Constitutional Law, § 148.] 8. NUISANCES-GAMBLING DEVICES.

Gambling itself was a nuisance at common law, and is a crime under the statutes of this state, and the machines, instruments, and devices designed and intended for carrying on such nuisance and crime are themselves nuisances. (Syllabus by the Court.)

Appeal from District Court, Ada County; Geo. H. Stewart, Judge.

Action by J. B. Mullen & Co. against D.

H. Mosley, sheriff. Judgment for defendant, and plaintiff appeals. Affirmed.

Hawley, Puckett & Hawley, for appellant. C. F. Koelsch and R. P. Quarles, for respondent.

AILSHIE, C. J. This action was commenced by the plaintiffs to recover a number of "slot machines" from the defendant, who was then sheriff of Ada county. The cause was determined in the district court on an agreed statement of facts, and judgment was entered against the plaintiffs and in favor of the defendant for his costs. The plaintiffs have appealed from the judgment.

It is stipulated, among other things, as follows: "That on or about the 23d day of March, 1905, plaintiff was and now is the owner of the following described personal property, to wit: Six (6) Mills' slot machines, numbered 8,592, 6,171, 12,232, 8,392, 751 and 661, respectively, one (1) Wattling machine and two Gable slot machines of the value, if of any value at all, of one hundred and twenty-five ($125.00) dollars. That said defendant came into the possession of said property lawfully. That before the commencement of this action, to wit, on the 20th day of January, 1906, plaintiff demanded the possession of said property from the defendant, but to deliver the same, or any part thereof, defendant refused and still refuses, and withholds the possession thereof from the plaintiff, to his damage, if to his damage at all, in the sum of one ($1.00) dollar. That said property above described are gambling devices, and were devised, and are designed and constructed for the sole and only purpose of playing games of chance for money, and are not adapted to any other use or for any other purpose, and are devised and adapted solely, entirely, and only to the betting of money, at which money is lost or won, and are not capable, susceptible, or fitted to be devoted or used in, or for any other purpose or purposes. That at the time said machines were originally seized by Constable A. Anderson, and for some days prior thereto, said maIchines were all being used for the sole purpose of playing games of chance at which money was bet and won or lost, in Boise, Ada county, Idaho. That on the 22d day of October, 1904, information in writing and under oath was presented to W. C. Dunbar, a duly elected, qualified, and acting justice of the peace in and for Boise Precinct No. 2, Ada county, Idaho, as such justice of the peace, that gambling devices, to wit, the slot machines mentioned and described herein, were within the city of Boise, Ada county, Idaho, and within the jurisdiction of said justice of the peace, and were then and there in operation, and used as such gambling devices, and particularly described said machines, and the places where the machines were then situate. That thereupon said Dunbar, as and acting as such justice of the peace, thereafter issued warrants, directed

to the sheriff or any deputy sheriff or constable of said county, commanding that the said gambling devices, the said slot machines. mentioned and described herein, and other slot machines, be seized and brought before him in his office in Boise, in said county and state, to be dealt with according to law, and thereafter placed the said warrants in the hands of A. Anderson, a duly elected, qualified, and acting constable of said precinct, who under and by virtue of said warrants seized said slot machines and brought the same before said justice of the peace, to be dealt with as directed by the statutes in such case made and provided."

It is further stipulated that after the machines were brought before the justice of the peace, and after an inspection thereof by the justice and his ascertainment that they were gambling devices, and designated for the purpose of playing games of chance, the justice made his order, commanding and directing that the machines be publicly destroyed; that prior to the destruction thereof an action was commenced in the district court for the recovery of the machines by the Mills Novelty Company against the justice of the peace, W. C. Dunbar, and that it was thereupon stipulated and agreed that during the pendency of the action in claim and delivery the property should be delivered to and held by the sheriff of the county. The case of the Mills Novelty Company v. Dunbar was heard and determined in the district court, and thereafter upon appeal to the Supreme Court (83 Pac. 932, 11 Idaho, 671), and the judgment was in favor of the defendant. Upon the determination of that case this action was commenced by these plaintiffs against the sheriff, claiming the specific articles herein enumerated. The order for the destruction of these machines was had in conformity with and under the provisions of sections 1 and 4 of the act approved February 6, 1899. (Sess. Laws 1899, pp. 389, 390), and known as the "anti-gambling law." Those sections are as follows:

"Section 1. Every person who deals, plays or carries on, opens or causes to be opened, or who conducts, either as owner, employé, or lessee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, or any game played with cards, dice, or any other device, for money, checks, credit or any other representative of values, is guilty of a misdemeanor and is punishable by fine not less than two hundred dollars or imprisonment in the county jail not less than four months."

"Sec. 4. Whenever any judge or justice of the peace shall have knowledge or shall receive satisfactory information that there is any gambling table or gambling device, adopted or devised and designed for the purpose of playing any of the games of chance prohibited in section 1 of this act, within his district or county, it shall be his duty to forthwith issue his warrant, directed to the