W told the jury, "If you believe that the prisoner really bought and paid for this cloth, as he says he did, you ought to acquit him, but if, from his selling it so very soon after it was lost, at the distance of eight miles, you feel satisfied that the statement of his buying it is all false, you will find him guilty." Higgins case, 3 C. & P. 603. So where a prisoner, charged with murder, stated in his confession that he was present at the murder, which was committed by another person, and that he took no part in it, Littledale, J., left the confession to the jury, saying, "It must be taken altogether, and it is evidence for the prisoner as well as against him; still the jury may, if they think proper, believe one part of it and disbelieve another. Clewes's case, 4 C. & P. 225. See also Steptoe's case, 4 C. & P. 397, S. P. In a recent trial for murder, the counsel for the prosecution said he would treat the statements of the prisoners before the magistrates as their defence, and show by evidence that they were not consistent with truth; Greenacre's case, 8 C. &. P. 36; and this course is frequently adopted in practice. Confessions of matters void in point of law, or false in fact.] An admission on the part of a prisoner is not conclusive, and if it afterwards appear in evidence that the fact was otherwise, the admission will be of no weight.(1) Thus, upon an indictment for bigamy, where the prisoner had admitted the first marriage, and it appeared at the trial that such marriage was void, for want of consent of the guardian of the woman, the prisoner was acquitted. 3 Stark. Ev. 1187, 1st ed. So on an indictment for setting fire to a ship, with intent to injure two part owners, it was held that the prosecutor could not make use of an admission by the prisoner that these persons were owners, if it appeared that the requisites of the shipping acts had not been complied with. Philp's case, 1 Moody, C. C. 271. Confessions inferred from silence or demeanor.] Besides, the proof of direct confessions the conduct or demeanor of a prisoner on being charged with the crime, or upon allusions being made to it, is frequently given in evidence against him. Thus, although neither the evidence nor the declaration of a wife is admissible against the husband on a criminal charge, yet observations made by her to him upon the subject of the offence, to which he gives no answer or an evasive reply, are receivable in evidence as an implied admission on his part. Smithers's case, 5 C. & P. 332; Bartlett's case, 7 C. & P. 832. So *evidence of [*57] a prisoner's demeanor on a former occasion is admissible to prove guilty knowledge; Tatershall's case, and Phillips's case, post, p. 91, 92. Mr. Phillipps after remarking that a confession may in some cases be collected or inferred from the conduct and demeanor of a prisoner, on hearing a statement affecting himself, adds, "as such statements frequently contain much hearsay and other objectionable evidence, and as the demeanor of a person upon hearing a criminal charge against himself is liable to great misconstruction, evidence of this description ought to be regarded with much caution." And see ante, pp. 15, 17. A deposition of a witness, or the examination of another prisoner taken before the committing magistrate, is not admissible in evidence merely because the party affected by it was present, and might have had an opportunity of cross-examining or commenting on the evidence; neither can any inference be drawn, as in other (1) Alton v. Gelmonton, 2 N. Hamps. 521. Eng. Com. Law Reps. xiv. 476. * Id. xix. 357. y Id. xix. 440. * Id.xxxiv. 281. 2 Eng. C. C. 271. Eng. Com. Law Reps. xxiv. 345. • Id. xxxii. 759. cases, from his silence. Appleby's case, 3 Stark. N. P. 33,a Melen v. Andrews, M. & M. 336, ante, p. 53; Turner's case, 1 Moody, C. C. 347; Swinnerton's case, 1 Carr. & M. 593.8(1) Confessions taken down in writing.] Where a confession has been taken in writing the document must be produced. In Swatkins' case, 4 C. & P. 548, a constable wrote down what the prisoner said, and having read it over to him, the latter put his mark to it. The paper was put in and read by the clerk of assize. A written examination will not exclude proof of a confession made previously or subsequently to the prosecutor or any other person. M'Carty's case, Macnally on Ev. 45; and see Reason's case, ante, p. 34. The mode of introducing confessions.] For the purpose of introducing a confession in evidence, it is unnecessary, in general, to do more than negative any promise or inducement held out by the person to whom the confession was made. 1 Phill. Ev. 409, 9th ed. In a trial for murder, it was proposed to give in evidence a statement of the prisoner, made in prison, to a coroner for whom the prisoner had sent. It, however, appeared that previous to this time, Mr. Clifton, a magistrate, had had an interview with the prisoner, and it was suggested, on behalf of the prisoner, that he might have told the prisoner that it would be better for him to confess, and that therefore the counsel for the prosecution was bound to call him. Littledale, J., "As something might have passed between the prisoner and Mr. Clifton respecting the confession, it would be fair in the prosecutors to call him, but I will not compel them to do so. However, if they will not call him, the prisoner may do so if he chooses." Clewes' case, 4 C. & P. 221. So where a prisoner being in the custody of two constables on a charge of arson, one B. went into the room, and the prisoner immediately asked him to go into another room, as he wished to speak to him, and they went into another room, when the prisoner made a statement; it was urged that the constables ought to be called to prove that they had done nothing to induce the prisoner to confess, and Swatkins' case, post, p. 58, was relied upon. Taunton, J., "A confession is presumed to be voluntary, unlesss the contrary is shown, and as no threat or promise is proved to have been made by the constables, it is not to be presumed." Having consulted [*58] Littledale, J., *his lordship added, we do not think, according to the usual practice, that we ought to exclude the evidence, because a constable may have induced the prisoner to make the statement, otherwise we must in all cases call the magistrates and constables before whom, or in whose custody the prisoner has been." Williams' case, Glouc. Spr. Ass. 1832, 2 Russ. by Greaves, 870. But if there be any probable ground to suspect that an officer, in whose custody a prisoner has previously been, has been guilty of collusion in obtaining a confession, such suspicion ought to be removed in the first instance by the prosecutor calling such officer. Upon an indictment for arson, it appeared that a constable who was called to prove a confession, went into a room in an inn, where he found the prisoner in the custody of another constable, and as soon as he went into the (1) Letters addressed to a party and found in his possession, are not evidence against him of the matters therein stated, unless the contents have been adopted or sanctioned by some reply or statement or act done on his part, and shown by other proof. Commonwealth v. Eastman, 1 Cushing, 189. Eng. C. L. Reps. xiv. 152. • Id. xxii. 329. f2 Eng. C. C. 347. room the prisoner said he wished to speak to him, and motioned the other constable to leave the room, which he did, and left them alone. The prisoner immediately made a statement. The witness had not cautioned the prisoner at all, and nothing had been said of what had passed between the constable and the prisoner before the witness entered the room. It was contended that the other constable must be called to show that he had used no inducement to make the prisoner confess. Patteson, J., "I am inclined to think the constable ought to be called. This is a peculiar case, and can never be cited as an authority, except in cases where a man being in the custody of one person, another who has nothing to do with the case comes in, and the prisoner motions the first to go away. I think, as the witness did not caution the prisoner, it would be unsafe to receive the statement. It would lead to collusion between constables. Swatkins' case, 4 C. & P. 548.i In order to induce the court to call another officer in whose custody the prisoner has been, it must appear either that some inducement has been used by, or some express reference made to, such officer. A prisoner, when before the committing magistrate, having been duly cautioned, made a confession, in which he alluded to a confession which he had previously made to Williams, a constable. It was submitted that Williams ought to be called to prove that he had not used any inducement. Littledale, J., " Although I do not think it necessary that a constable in whose custody a prisoner has been, should be called in every case, yet, as in this case, there is a reference to the constable, I think he ought to be called." Williams was then called, and proved that he did not use any undue means to obtain a confession; but he had received the prisoner from Marsh, another constable, and the prisoner had made some statement to Marsh. It was then urged that Marsh should be called. Littledale, J.: "I do not think it is necessary that a constable should be called, unless it appear that some promise was given or some express reference was made to the constable. There was a distinct reference made to Williams, and, therefore, I thought he must be called, but there is no reference to Marsh. It does not appear either that any confession was made to Marsh. It only appears that a statement was made that might either be a confession, a denial, or an exculpation." Warner's case, Glouc. Spr. Ass. 1832, 2 Russ. by Greaves, 871 Statute 7 Geo. 4, c. 64.] The foregoing pages relate only to the confessions and admissions made, by persons charged with offences, to third persons, and not made i Eng. Com. Law Reps. xix. 520. to magistrates during the examinations directed to be taken by statute. Those examinations, formerly taken under the 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10, are now governed by the 7 Geo. 4, c. 64.(1) That statute enacts, s. 2, "That the two justices of the peace before they shall admit to bail, and the justice or justices before he or they shall commit to prison any person arrested for felony, or on suspicion of felony, shall take the examination of such person, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, and the two justices shall certify such bailment in writing; and every such justice shall have authority to bind by recognizance all such persons as know or declare any thing material touching any such felony or suspicion of felony, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county palatine, or great sessions, or sessions of the peace at which the trial thereof is intended to be, then and there to prosecute or give evidence against the party accused: and such justices and justice respectively shall subscribe all such examinations, bailments, and recognizances, and deliver or cause the same to be delivered, to the proper officer of the court in which the trial is to be, before or at the opening of the court." Before the above statute, the justices had no power to take the examination of persons charged with misdemeanors; but now, by sect. 3, "every justice of the peace before whom any person shall be taken, on a charge of misdemeanor or suspicion thereof, shall take the examination of the person charged, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, before he shall [*60] commit to prison or require bail from the person so *charged, and in every case of bailment shall certify the bailment in writing; and shall have authority to bind all persons by recognizance, to appear to prosecute or give evidence against the party accused, in like manner as in cases of felony, and shall subscribe all examinations, informations, bailments and recognizances, deliver or cause the same to be delivered, to the proper officer of the court in which the trial is to be, before or at the opening of the court, in like manner as in cases of felony." The fourth section relates to the duty of coroners upon inquisitions in putting in writing the evidence of the witnesses, and binding them over. It contains, however, no provision for taking the examination of parties charged with or suspected of causing the death of the person on whose body the inquisition is held; although, as observed in 2 Russ. by Greaves, 874, n. (g), "it seems to have been taken for granted in several cases that the coroner had the same authority to take the examination of a prisoner as a magistrate." See Roche's case, post, p. 59, Reed's case, post, p. 62, and Brogan's case, post, p. 64. By the 7 G. 4, c. 38, s. 1, commissioners for trying offences committed at sea, or a justice of the peace, may take examinations touching offences committed within the jurisdiction of the Admiralty, and may commit the parties charged. Time of taking examinations.] The proper time for taking the examination of a prisoner is after the witnesses have been examined, and he has heard what they have deposed against him. 2 Russ. by Greaves, 874, citing Fagg's case,a 4 C. & P. 566; Bell's case, 5 C. & P. 162, and Spilsbury's case, 7 C. & P. 187.o b (1) As to examinations under the statute, see The People v. Restell, 3 Hill, 289. a Eng. Com. Law Reps. xix. 530. b Id. xxiv. 256. • Id. xxxii. 487. Mode of taking examinations-questioning the prisoner.] Where an examination (taken under the statute of P. & M.) was offered in evidence, and the magistrate who took it stated that he had examined the prisoner to a considerable extent, in the same manner as he was accustomed to examine a witness, Richards, C. B. rejected the examination, saying that it was irregular in the magistrate to examine a prisoner in such a manner. Wilson's case, Holt, 597. But the contrary was held by Mr. Justice Holroyd. Stark. Ev. App. part iv. p. 52, 1st ed. And it was ruled the same way at the Old Bayley, on an indictment for murder. Jones' case, 2 Russ. 649 (v). In a late case also, Mr. Justice Littledale held the decision of Holroyd, J., to be correct, and admitted an examination partly elicited by questions put by the magistrate. Ellis's case, Ry. & Moo. N. P. 432. See also Thornton's case, 1 Moody, C. C. 27; ante, p. 42, and Rees's case, 7 C. & P. 569. Bartlett's case, Id. 832.h It is conceived, however, that while a magistrate may fairly put questions to a prisoner to explain or elucidate some portion of his statement, he ought not by interrogating the prisoner in the first instance to extract a confession; neither ought he, on the other hand, to dissuade him from confessing. Green's case, 5 C. & P. 312. The proper course of proceeding was laid down by Lord Denman, C. J., in a recent case. "A prisoner is not to be entrapped into making any statement, but when a prisoner is willing to make a statement, it is the duty of magistrates to receive it; but magistrates before they do so ought entirely to get rid of any impression that may have before *been on the prisoner's mind, [ *61 ] that the statement may be used for his own benefit; and the prisoner ought also to be told that what he thinks fit to say will be taken down, and may be used against him on his trial." Arnold's case, 8 C. & P. 621.*(1) Mode of taking examinations must not be upon oath.] The examination of a prisoner must not be taken upon oath. Where the examination of a prisoner was produced, commencing-"The examination of A. B., taken on oath before," &c., Le Blanc, J., rejected it, and would not permit evidence to be given that no oath had, in fact, been administered, saying, that he could not allow that which had been sent in under the hand of a magistrate to be disputed. Smith's case, 1 Stark. N. P. 242.1 So Park, J., rejected an examination of the prisoner, concluding "taken and sworn before me," and signed by the magistrate, and would neither allow the magistrate's clerk to prove that, in fact, it was not sworn, nor would he receive parol evidence of what the prisoner said. River's case, 7 C. & P. 177. So also where the magistrate returned that the prisoner was sworn. Parke, B., in the presence of Bosanquet, J., held that proof could not be received, that, in point of fact, the prisoner was not sworn. Pikesley's case, 9 C. & P. 124 But where the prisoner, being mistaken for a witness, was sworn, but the mistake being discovered, the deposition, which had been commenced, was destroyed, and the prisoner subsequently, after a caution from the magistrate, made a statement, Garrow, B., received that statement. Webb's case, 4 C. & P. 564.° And where a prisoner had been examined upon oath, on a charge against another person, Parke, J., received evidence of his examination, as a confession, observing that upon that, as upon every other occasion, the prisoner might have refused to (1) People v. Smith, 1 Wheeler's C. C. 54. The prisoner is not bound to answer, but if he submits to answer, and answers falsely, the prosecutor may disprove it, and it will be taken strongly against the prisoner. Case of Goldsby et al., 1 Rogers' Rec. 81. Eng. Com. Law Reps. iii. 192. • Id xxi. 483. 12 Eng. C. C. 27. Id. xxxii. 759. i Id. xxiv. 335. na Id. xxxviii. 67. J Id. xxxiv. 556. * Id. ii. 374. Id. xxxii. 633. 1 Id. xxxii. 486. |