a confession before a magistrate (who before 1848 exercised inquisitorial as well as judicial functions, 1 Steph. Hist. Cr. L. 221), or before any other person, unless it be shown affirmatively on the part of the prosecution that it was made without the defendant's being induced to make it by any promise of favour, or by menaces, or undue terror, it shall not be received in evidence against him. 2 Hale, 285: R. v. Thompson [1893] 2 Q. B. 12; 17 Cox, 641 (C. C. R.); and see generally on this question, R. v. Baldry, 2 Den. 430. "If it proceeds from remorse or a desire to make reparation for the crime, it is admissible; if it flows from hope or fear exacted by a person in authority it is inadmissible. On this point the authorities are unanimous." R. v. Thompson [1893] 2 Q. B. at p. 15, Cave, J. Therefore a confession will be inadmissible if it be said to the defendant that it will be better or worse for him if he do or do not confess; 2 East, P. C. 659; or if the confession be procured by a threat to take the defendant before a magistrate if he do not give a more satisfactory account; R. v. Thompson, 1 Leach, 291: R. v. Parralt, 4 C. & P. 570; or to send for a constable for that purpose; R. v. Richards, 5 C. & P. 318 R. v. Hearn, C. & Mar. 109; or by saying, "Tell me where the things are, and I will be favourable to you;" R. v. Cass, 1 Leach, 293, n.; or, "You had better tell all you know;" R. v. Kingston, 4 C. & P. 387; or, "You had better tell where you got the property;" R. v. Dunn, 4 C. & P. 543; or, "You had better split, and not suffer for all of them; R. v. Thomas, 6 C. & P. 353; or, "It would have been better if you had told at first; R. v. Walkley, 6 C. & P. 175; or, "I should be obliged to you if you would tell us what you know about it; if you will not, of course we can do nothing;" R. v. Partridge, 7 C. & P. 551; or, "It will be best for you if you tell me how it was transacted; R. v. Warringham, 2 Den. 447; or, "It might be better for you to tell the truth and not a lie;" R. v. Bate, 11 Cox, 686; or, "You had better tell the truth, it may be better for you;" R. v. Fennell, 7 Q. B. D. 147; 50 L. J. (M. C.) 126; or, "You had better tell me all about the corn that is gone; R. V. Rose, 68 L. J. (Q. B.) 289; 18 Cox, 717, C. C. R. Where the prosecutor asked the defendant for the money which he had taken, and, before it was produced, said, "I only want my money, and if you give me that you may go to the devil if you please," upon which the defendant took part of the money from his pocket, and said that was all he had left, a inajority of the judges held that the evidence was inadmissible. R. v. Jones, R. & R. 152. 19 In R. v. Broun [1903] 68 J. P. Rep. 15, on a trial for murder, the prosecutor proposed to put in evidence answers given by one of the prisoners a soldier to a commanding officer of military police. The officer had come to the barracks of the prisoner's regiment, and a parade of the regiment was ordered. The prisoner was arrested and taken to the guard-room, where the officer asked him certain questions on suggestion of the superintendent of police. After the prisoner had answered a few questions, the superintendent stopped the officer from asking more, and arrested the prisoner. Wills, J., held that the answers were admissible, as the officer had held out no threat nor inducement, and there was no compulsion, and nothing to force the prisoner-a position in which he would be likely to make an untruthful answer. The prisoner made a confession which was inadmissible in evidence in consequence of its having been made after a promise held out by the person to whom it was made. That person, shortly after the confession so made to her, sent for a neighbour and informed him of the confession, and he then had an interview alone with the prisoner, and asked her questions upon the subject, but he held out no inducement, and she then made a confession to him. It was held that this second confession was so connected with the promise held out by the person to whom the first confession was made as to be inadmissible. R. v. Rue, 13 Cox, 209, Denman, J., after consulting Kelly, C.B. Where a prisoner was told by a constable at 10 o'clock a.m. that it would be better for him to tell the truth, an admission by the prisoner to another constable after 6 o'clock in the evening of the same day was not allowed to be given in evidence, although the second constable had, before the prisoner made the admission, cautioned him not to say anything to criminate himself, for that anything he would say would hereafter come in evidence against him. This decision proceeded on the ground that the caution given by the second constable might not have had the effect of removing the expectation which might have been raised by the language of the first constable. R. v. Doherty (1), 13 Cox, 23, per Whiteside, C.J.: R. v. Doherty (2), 13 Cox, 24, per Fitzgerald, B. A confession, made with a view, and under a hope, of being thereby permitted to turn Queen's evidence, or of obtaining a pardon or reward, has been held inadmissible. R. v. Hall, 2 Leach, 559; R. v. Blackburn, 6 Cox, 333, Talfqurd, J. And it is clearly so where such hope is the reasonable result of a communication from, or the conduct of, a person in authority. R. v. Gillis, 11 Cox, 69. See R. v. Burley, 2 Stark. Ev. (3rd ed.), 53: R. v. Boswell, C. & Mar. 584. But cf. R. v. Dingley, 1 C. & K. 637. To exclude a confession made under the influence of a promise or threat, the promise or threat must be of a description which may be presumed to have had such an effect on the mind of the defendant as to induce him to confess; and therefore an exhortation, admonition, promise or threat, proceeding at a prior time from some one who has no concern in the apprehension, prosecution, or examination of the prisoner, but interferes without any authority, will not be sufficient to render a confession inadmissible. R. v. Row, R. & R. 153: R. v. Hardwick, 1 Phil. Ev. (7th ed.), 111: R. v. Gibbons, 1 C. & P. 97: R. v. Tyler, ld. 129: R. v. Clewes, 4 C. & P. 221. It seems that there was at one time a difference of opinion among the judges on this point-whether a confession made to a person who has no authority, after an inducement held out by that person, is receivable or not. R. v. Spencer, 7 C. & P. 776. It has, however, been long settled that evidence of any confession is receivable, unless there has been some inducement held out by some person in authority, and that if a person not in any office or authority held out to the accused party an inducement to confess, this will not exclude a confession made to that party. R. v. Taylor, 8 C. & P. 733: R. v. Moore, 2 Den. 526; 21 L. J. (M. C.) 199, C. C. R. It is immaterial whether the inducement is held out by the person in authority or in his presence without his dissent by a third person. Thus, where such a person held out an inducement in the presence of the prosecutor's wife, who expressed no dissent, the confession was held not to be receivable. R. v. Taylor, ubi supra. And see R. v. Hewett, C. & Mar. 534 : R. v. Garner, 1 Den. 329; 2 C. & K. 920; 18 L. J. (M. C.) 1: R. v. Luckhurst, Dears. 245; 23 L. J. (M. C.) 18. So where the prisoner was taken by the constable to an inn, and the innkeeper, in the constable's hearing, held out an inducement to him to confess, and the prisoner, in the constable's hearing, made a confession to the innkeeper, which the constable was called to prove, Alderson, B., thought the evidence inadmissible. R. v. Pountney, 7 C. & P. 302. And see R. v. Dunn, 4 C. & P. 543: R. v. Slaughter, Id. 544 n.: for the fact of the constable being present and not dissenting from what was said places the expressions used on the same footing as if they had been used by the constable. R. v. Laugher, 2 C. & K. 225, Pollock, C.B. Where one of two defendants charged with larceny said to the other (a constable, and the owner of the property, W., being present), "You had better tell Mr. W. the truth," neither the policeman nor W. saying anything, a confession made thereupon by the other defendant was held admissible. R. v. Parker, L. & C. 42; 30 L. J. (M. C.) 144. Where a girl, being apprehended for the murder of her child, was left by the constable in the custody of a woman, who told her she had better tell the truth, otherwise it would lie upon her and the man would go free, upon which she made a confession : Parke, J., and Taunton, J., held this confession not receivable, as it was made in consequence of an inducement held out to the prisoner by a person who had her in custody. R. v. Enoch, 5 C. & P. 539. A woman in custody on a charge of murder was placed in a room alone with E. to be searched. E. was a "searcher" of female prisoners, but had no other duties or authority in the gaol. Whilst the search was being made, the prisoner said, "If I tell the truth, shall I be hung?" to which E. answered, “No, nonsense, you will not be hung." It was held that a statement made by the prisoner to E. immediately afterwards was not receivable. R. v. Windsor, 4 F. & F. 361. And confessions obtained from a servant through hopes and threats held out by the wife or by the relations and neighbours of her master aud prosecutor (or, in the case of an offence committed against several persons in partnership, by the wife, etc., of any of them, R. v. Warringham, 2 Den. 447, n.), have been held inadmissible by all the judges. R. v. Simpson, 1 Mood. C. C. 410: R. v. Upchurch, Id. 465. This, however, does not apply to a case where the charge against the servant has no relation to the persons or property of the master or his family: e.g., to a case of child murder or concealment of birth. R. v. Moore, 2 Den. 522; 21 L. J. (M. C'.) 199. The inducement must refer to a temporal benefit; for hopes which are referable to a future state merely are not within the principle which excludes confessions obtained by improper influence. R. v. Gilham, 1 Mood. C. C. 186. Where the inducements merely amount to a moral exhortation and do not refer to a temporary benefit, the confession is admissible. Thus where the defendant being in custody on a charge of setting fire to her master's farm-building, her master's married daughter said to her, "I am very sorry for you; you ought to have known better; tell me the truth, whether you did it or no; the defendant replied, "I am innocent;" whereupon the other said, "Don't run your soul into more sir, but tell the truth; a confession thereupon made by the defendant was held admissible. R. v. Sleeman, Dears. 249; 23 L. J. (M. C.) 19 (C. C. R.). And see 3 Russ. Cr. (6th ed.) 493. So where one of the prisoner's employers, having called him up into his private room, said, "I think it right that I should tell you that, besides being in the presence of my brother and myself, you are in the presence of two police officers; and I should advise you that, to any questions that may be put to you, you will answer truthfully, so that if you have committed a fault you may not add to it by stating what is untrue; " and having shown a letter to him, which he denied having written, added, “Take care; we know more than you think we know," and the prisoner thereupon made a confession; it was held that such confession was admissible. R. v. Jarvis, L. R. 1 C. C. R. 96; 37 L. J. (M. C.) 1. So where the mother of a little boy in custody on a criminal charge said to him and another little boy also in custody on the same charge, in the presence of the mother of the latter and of the policeman, "You had better, as good boys, tell the truth," whereupon both boys confessed, it was held that the confession was admissible. R. v. Reeve, L. R. 1 C. C. R. 362; 37 L. J. (M. C.) 92. In that case, as well as in R. v. Jarvis, supra, the inducements do not seem to refer to a temporal benefit, but merely to amount to a moral exhortation, as in R. v. Sleeman (ante, p. 333). So, where a prisoner under fourteen years of age, charged with murder, was told by a man, who was present when he was apprehended, "Now, kneel down, I am going to ask you a very serious question, and I hope you will tell me the truth, in the presence of the Almighty," and the prisoner in consequence made a statement, this was held (strictly) admissible. R. v. Wild, 1 Mood. C. C. 452. But where a constable, after having asked the prisoner what he had done with the stolen property, said, “You had better not add a lie to the crime of theft," Gaselee, J., refused to receive a statement thereupon made by the prisoner in evidence. R. v. Shepherd, 7 C. & P. 579. The only proper questions are, whether the inducement held out to the prisoner was calculated to make his confession an untrue one, and whether the inducement continued to operate at the moment of the confession; if not, it will be admissible. Thus, where a prisoner asked of a witness with whom he was in conversation whether he had better confess, and the witness replied that he had better not confess, but he might say what he had to say to him, for it should go no further, a statement thereupon made by the prisoner was held admissible. R. v. Thomas, 7 C. & P. 345. It is no objection to the admissibility of a confession, that it was made under a mistaken supposition that some of the defendant's accomplices were in custody, even though it were created by artifice, with a view to obtain the confession. R. v. Burley, 1 Phil. Ev. (7th ed.), 111. A statement made by a prisoner when drunk has been held admissible, even though the liquor was given him in the hope that he would make admissions. R. v. Spilsbury, 7 C. & P. 187. And a letter given by a defendant to the gaoler to put into the post is evidence against him. R. v. Derrington, 2 C. & P. 418. But where the prosecution tendered in evidence a letter written by the prisoner while in custody, to his wife, and given by him to a constable to post, who detained it, Kelly, C.B., refused to admit it, apparently upon the ground that the letter belonged in reality to the wife, who could not have been called upon to produce it had it reached her hands as it was intended by the prisoner to do. R. v. Pamenter, 12 Cox, 177. If the promise, or menace, etc., take place previously to the prisoner's being brought before the magistrate, the court will, in general, refuse to admit the confession to be given in evidence, unless it appear that the prisoner was undeceived by the magistrate, and cautioned by him not to expect the favour, or not to regard the menaces held out to him; 2 East, P. C. 658 and see R. v. Lingate, 1 Phil. Ev. (7th ed.), 414 : R. v. Arnold, 8 C. & P. 621: 1 Taylor Ev. (7th ed.) 570. But where (before 11 & 12 Vict. c. 42) a defendant having been told by a constable that he might do himself some good by confessing, afterwards asked the magistrate if it would benefit him to confess, and the magistrate saying he could not say it would, the defendant then declined to confess, but afterwards, when going to prison, made a confession to the constable, the judges held the confession to be admissible, because the answer of the magistrate was sufficient to remove any expectation which the constable might have caused. R. v. Rosier, 2 Phil. Ev. (7th ed.) 112. See R. v. Green, 5 C. & P. 312: R. v. Clewes, 4 C. & P. 221: R. v. Richards, 5 C. & P. 318: R. v. Howes, 6 C. &. P. 404 : R. v. Dingley, 1 C. & K. 637. The only questions in these cases really are,-was any promise of favour, or any menace or undue terror made use of, to induce the prisoner to confess? and if so, was the prisoner induced by such promise or menace, etc., to make the confession attempted to be given in evidence? If the judge be of opinion in the affirmative upon both these questions, he will reject the evidence. If, on the contrary, it appears to him, from the circumstances, that, although such promises or menaces were held out, they did not operate upon the mind of the prisoner, but that his confession was voluntary notwithstanding, and he was not biassed by such impression in making it, the judge will admit the evidence. See 2 East, P. C. 658 R. v. Thompson [1893] 2 Q. B. 12: R. v. White, 1 Phil. Ev. (7th ed.) 406: and R. v. Nute, 1 Burn's J. 973 (30th ed.), citing 1 Burn's J. 688 (24th ed.). Questions to prisoners by police constables.]—By the law of this country no person ought to be made to criminate himself, and no police officer has any right, until there is clear proof of a crime having been committed, to put searching questions to a person for the purpose of eliciting from him whether an offence has been perpetrated or not. If there is evidence of an offence a police officer is justified, after a proper caution, in putting questions to a suspected person in order to ascertain whether or not there are fair and reasonable grounds for apprehending him. Even this course should be very sparingly resorted to. R. v. Berriman, 6 Cox, 388, Erle, J. The admissibility of answers to such questions put by the police before arrest must depend in each case upon the whole of the circumstances. R. v. Miller, 18 Cox, 54, Hawkins, J. In R. v. Kershaw, 18 T. L. R. 357; 37 L. J. Newsp. 120, Bucknill, J., after consulting Wills, J., admitted statements by a boy accused of murder made in answer to questions put by the father of the deceased in the presence of a constable. Where they are taken down in writing and voluntarily signed by the accused they are admissible. R. v. Goddard, 60 J. P. 491. Where a constable said to the prisoner, who was suspected of the murder of her child, that "if she did not tell him where it was she might get herself into trouble, and that it would be the worse for her," a statement thereupon made by her to the constable was rejected. R. v. Coley, 10 Cox, 536, Mellor, J. But a statement made to a constable, after he had told the defendant the nature of the charge against him and that he need not say anything to criminate himself, but that what he did say would be taken down, and used as evidence against him, was held to be admissible. R. v. Baldry, 2 Den. 430; 21 L. J. (M. C.) 130 (C. C. R.); overruling R. v. Drew, 8 C. & P. 140, Coleridge, J.: R. v. Morton, 2 M. & Rob. 514: R. v. Furley, 1 Cox, 76, Maule, J. and R. v. Harris, Id. 106, Maule, J. Where a constable in the course of a conversation between himself and the prisoner respecting the subject-matter of the charge and immediately before apprehending the prisoner said to the prisoner, "I must know more about it," it was held that the use of this expression by the constable did not render a statement thereupon made by the prisoner inadmissible. R. v. Reason, 12 Cox, 228, Keating, J., after consultation with Quain, J. It has been held in Ireland that answers given by a prisoner to a constable who has taken him into custody, and has given him no caution, are admissible in evidence against the prisoner on his trial. R. v. Johnston (1864), 15 Ir. Com. Law R. 60 (C. C. R.), which appears to overrule R. v. Bodkin, 9 Cox, 403 (Ir.). Where a constable said to the prisoner, who was suspected of having stolen the prosecutrix's purse, "Now is the time for you to take it back to her" (the prosecutrix), it was held that the use of these words by the constable did not render inadmissible a statement subsequently made to him by the prisoner, as the words imported no promise or threat to the prisoner to induce him to confess. R. v. Jones, 12 Cox, 241 (C. C. R.). |