Herrera

Defendant Herrera was convicted of rape upon one Victoria Gomez, a girl of fourteen years.

The first ground of the appeal is that the defendant was not permitted to show, prior to it having beeln offered in evidence, that an alleged confession was secured under such circumstances as to make it involuntary. The statement related by a witness as made by the defendant was not a confession, but an admission, therefore it was unnecessary for the prosecution to have laid any foundation for its admission.

The gist of the statement which the witness testified defendant made was that upon the morning of the day on which the offense was committed he was so drunk that it would have been possible for him to have killed a man and not remember it. This does not amount to a confession. When the statement of guilty conduct is such that it does not involve a criminal intent, or where it constitutes facts amounting to justification or excuse for the defendant’s acts, it is an admission rather than a confession. (People v. Weston, 169 Cal. 393 [ 146 Pac. 871 ]; People v. Fowler, 178 Cal. 657 [ 174 Pac. 892 ]; People v. Wilkins, 158 Cal. 530 [111 Pac. 612]; People v. Le Roy, 65 Cal. 613 [ 4 Pac.…