whatever you do say will be taken down in writing and may be given in evidence against you, at your trial. You must clearly understand that you have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any admission or confession of guilt, but whatever you now say may be given in evidence against you upon your trial, notwithstanding such promise or threat."

2. Whatever the accused then says in answer thereto shall be taken down in writing in the FORM T in SCHEDULE ONE, (1) or to the like effect, and shall be signed by the justice and kept with the depositions of the witnesses and dealt with as hereinafter mentioned.

The caution contained in this Article is two-fold. In the first part of it, the accused is told that he is not bound to say anything, but that whatever he does say will be written down and may be given in evidence against him at his trial; and, in the second part, he is told that he must clearly understand that he has nothing to hope from any promise of favor and nothing to fear from any threat which may have been held out to him to induce him to make any admission or confession of guilt.

Although the second part of the caution is only of importance in cases where some previous promise of favor or threat has, in fact, been held out, (2) it is better, in all cases to give both parts of the caution, as the justice may not have the means of knowing whether a previous promise of favor or threat has been held out or

not.

The object of giving the caution contained in the above Article is to enable the prosecution to give in evidence upon the trial of the accused, any confession or admission that he may afterwards make, notwithstanding any previous promise of favor or threat that may have been held out to him.

The statement made by the accused person before the justice may if necessary, upon the trial of such person, be given in eviddence against him, without further proof thereof, unless it is proved that the justice did not in fact sign it. (Code, Art. 689).

(1) For Form T, see p. 237, post,

(2) R. v. Sansome, 1 Den. C. C. 545; 19 L. J. M. C. 143.

When the form prescribed by the above Article 591, is followed, the prisoner's statement purporting to be attested by the signature of the examining justice thus makes proof of itself, under Article 689. But, when the prescribed form has not been followed, the caution, the prisoner's statement, and the justice's signature may still be proved by the justice, or his clerk, or by some person who was present at the examination. (1)

592.-Evidence of Confession or Admission.— Nothing herein contained shall prevent any prosecutor from giving in evidence any admission or confession, or other statement made at any time by the person accused or charged, which, by law, would be admissible.

A confession must, in order to be admissable, be entirely free and voluntary. When it is obtained from the accused by the flattery of hope or the torture of fear, it comes in so questionable a shape, when it is to be considered as evidence of guilt, that no reliance can be placed upon it, and no credit should be given to it. Take the following case as an example :

Three men were tried and convicted of the murder of a Mr. Harrison. One of them, under promise of pardon, confessed himself guilty of the fact. The confession, therefore, was not given in evidence against him; and a few years afterwards it turned out that Mr. Harrison was still alive. (3)

The confession will not be admissible, if it be procured by a threat to take the defendant before a magistrate unless he give a more satisfactory account. (4) or by a threat to send for a constable for that purpose; (5) or by saying. Tell me where the things are, and I will be favourable to you ;" (6) or by saying, You had better split, and not suffer for all of them;" (7) or by

(1) R. v. Boyd, 19 L. J. M. C. 141; R. v. Hearn C. & M. 109.

(2) Gibb. Ev. 123; R. v. Eldridge, R. & R., C. C. R., 440.

(3) 2 Hale, 285; R. v. Warringham, 2 Den. 447; Warwickshall's case, 1 Leach, 263.

(4) R. v. Thompson, 1 Leach, 29.

(5) R. v. Richards, 5 C. & P. 318.

(6) R. v. Cass, 1 Leach, 293. See also R. v. McCafferty, 25 S. C., N. B. 396. (7) R. v. Thomas, 6 C. & P. 353.

saying,

It would have been better if you had told at first ;" (1) or by saying, "You had better tell me the truth. It will be better for you." (2)

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 majority of the judges held that the evidence was inadmissible. (3)

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. (4) And this is clearly so where such hope is the reasonable result of a communication from, or the conduct of a person in authority. (5)

The inducement must refer to a temporal benefit. Hopes which are referable to a future state merely are not within the principle which renders a confession obtained by improper influence inadmissible. (6)

Thus, where a prisoner, under fourteen years of age, was arrested on a charge of murder, and was spoken to by a man who was present at the time of the arrest, as follows: "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, it was held admissible. (7)

It was, in a recent case, held by A. L. Smith, J., that, although a person who is suspected of a crime may, before he is charged or is in custody, be asked what he has to say in answer to or explanation of the matter, yet, after he is in custody, the police have no

(1) R. v. Walkley, 6 C. & P. 175.

(2) R. v. Fennell, 50 L. J. M. C. 126.

(3) R. v. Jones, R. & R. 152; R. v. Parratt, 4 C. & P. 570.

(4) R. v. Hall, 2 Leach, 559.

(5) R. v. Gillis, 11 Cox, 69.

(6) R. v. Gilham, R. & R., C. C. 186.

(7) R. v. Wild, 1 Mood. C. C. 452.

right to ask him questions, and an admission or confession obtained in that way is inadmissible in evidence. (1)

When the prisoner has been duly cautioned by the magistrate, in pursuance of Article 591, anything said by him, thereupon, will be admissible in evidence against him on his trial, although, at some time previous to such caution by the magistrate, there may have been a promise or threat held out to him to induce him to confess. (2)

Before the passing of the Canada Evidence Act, 1893, it was held in the case of a prisoner indicted for arson, that his deposition taken on oath at a previous enquiry, before the Fire Commissioners into the cause of the fire, was admissible as evidence against him. (3)

But sec.

5, of the Canada Evidence Act, 1893, now provides that No person shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, etc.; provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him, other than a prosecution for perjury in giving such evidence."

What a prisoner has been overheard to say to another, or to himself is equally admissible; though it is a species of evidence to be acted on with much caution, as being liable to be unintentionally misrepresented by the witnesses. (4)

In all cases, the whole confession should be proved; for it is a general rule, that the whole of the account which the party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received without receiving at the same time his contemporaneous assertion of a fact favorable to him. (5)

DYING DECLARATIONS.-When the death of a person is the subject of a criminal charge the declarations made before death by the

(1) R. v. Gavin, 15 Cox, 656.

(2) R. v. Bate, 11 Cox, 686.

(3) R. v. Coote, L. R., 4 P. C., 599; 42 L. J. P. C., 45.

(4) R. v. Simmons, 6 C. & P., 540.

(5) Taunt, 245; Queen's Case, 2 B & B., 294.

deceased person concerning the cause and circumstances of the death are admissible in evidence for or against the accused, if the declaration were made by the deceased with a full consciousness and belief, without hope,--of approaching death. (1)

The dying declarations of a felo de se were held to be good evidence against a person indicted for assisting the deceased in his self-murder; and the majority of the judges were of opinion that this evidence would of itself be sufficient to convict, although the testimony of the accomplice, if living, would not, unless corroborated by other evidence. (2) This case is no infringement of the general rule that a man's own confession is, as such, no evidence against his accomplice; for an accomplice is admissible as a witness against his fellows, and a dying declaration made by a person who, if alive, would be admissible as a witness, is admissible as evidence where the death of the deceased is the subject of the charge, and the cause of the death the subject of the dying declaration. (3) For form of Dying Declaration, see p. 142 ante.

593.—Evidence for the Defence.-After the proceedings required by section 591 are completed the accused shall be asked if he wishes to call any witnesses.

2. Every witness called by the accused, who testifies to any fact relevant to the case, shall be heard, and his deposition shall be taken, in the same manner as the depositions of the witnesses for the prosecution.

Under this Article the magistrate is obliged to take, at the preliminary investigation, the depositions of any witnesses that the prisoner may wish to examine as well as those of the witnesses for the prosecution.

This, however, does not authorize the magistrate to try the case; nor does it give the defendant the right, for instance, in a prosecution for publishing a libel, to prove, at the preliminary

(1) Kerr's Mag. Acts, 28; R. v. Jenkins, 11 Cox, 250; R. v. Goddard, 15 Cox, 7; R. v. Smith, 16 Cox, 170; R. v. McMahon, 18 Ont. R. 502; R. v. Mitchell, 17 Cox, 503.

(2) R. v. Twickler, 1 East, P. C. 354.

(3) Arch. Cr. Pl. & Ev. 21 Ed. 274.