Page images

Party may not fapub the

bis testimony; but a conviction before a magistrate, purporting to set out the deposition of a witness, is not evidence for this purpose;' because the recital of the deposition may be erroneous, and the variance between it and the subsequent evidence of the witness, may be attributable to such incorrectness, rather than to an incongruity of the two statements of the witness.

A party cannot impeach the credibility of his own witness; yet, where the first witness, called for a defendant, disproved the fact relied on in the defence, it was held that the defence was not thereby concluded, but that the defendant might prove the fact by other witnesses: the impeachment of the first witness, in such case, is incidental, not direct.

In weighing the conflicting testimony of witnesses, it ought not to excite surprise that witnesses of fair reputation should differ in minute points in the relation of facts. An exact accordance in the narration of minute particulars would rather create suspicion and tend to evince previous contrivance and conspiracy. The nonagreement of witnesses, therefore, in points not essential, is no impeachment of their credibility. If venial discrepancies in testimony are met with, relating to positive facts, much more are they to be expected, when witnesses depose rather as to the impression made upon their minds, than as to facts. This often happens on trials arising cut of quarrels, or disrecpectful conduct to superiors. The words actually employed, independent of deportment, voice and gesture, must

(1) 1 Phil. 301. (2) Rayo. Ambrose, 5 D. & R. 629.

Trifing disagreements in testimony.

often very imperfectly convey an adequate conception of the matter which it is important for the court to be informed of, and incumbent on them to decide on. This variance in evidence (it may be termed a distinction, arising from the predisposition of the minds of witnesses to be impressed by or to retain facts,) is particularly likely to predominate, when, by the lapse of considerable time, and probably from the witness's having participated in conversations relative to the affair in issue, the impression, at first loosely admitted, becomes confused, if not Warped by the preference which a witness may, without any culpable feeling, entertain for one side or the other.



The confession of a prisoner in a criminal case Confessions and is received in evidence upon the presumption that a person will not make an untrue statement, or admission militating against himself: but as there may not unfrequently be motives of hope and fear operating to this end, and because the confession itself is in many cases liable to misconstruction, or to be mis-reported from ignorance, inattention or malice, statements by prisoners are often excluded from being received in evidence by the law, and should always be received with caution by the judge.

Voluntary confessions of prisoners, whether offect of, made before apprehension or after, whether on a judicial examination or after confinement, whether reduced into writing or not, if satisfactorily proved, become evidence, and if direct and positive, are sufficient to convict, without

any corroborating circumstances. Any threat or promise, or hope of pardon, held out or sanctioned by a magistrate, or other person in authority, or concerned in the charge, will prevent the admission of any consequent confession. A confession made in hope of being thereby permitted to turn king's evidence, is not a voluntary confession, and, therefore, inadmissible.? The law presumes that, under a threat or promise a prisoner may confess himself guilty of that of which he is innocent, and, therefore, it excludes his confession; but if confession, though extorted, lead to the disclosure of facts, the presumption of the law which excluded the confession, ceases; since the result shows that the prisoner was not led to accuse himself falsely : it is no objection to the admission of evidence, that it was discovered in consequence of information obtained by hope of pardon. A prisoner who had made a confession to a constable in consequence of a promise, was taken before a magistrate, who, knowing what had taken place, cautioned him against making any confession before him; the prisoner, notwithstanding, did make a confession to him, which confession was admitted in evidence against the prisoner, though it did not appear that the magistrate told the prisoner that his first confession would have no effect, and he might, therefore, have acted under an impression that after having once acknowledged his guilt, it was useless to retract. A confession resulting from the state of a prisoner's mind, acted on by the suitable and appropriate exhortation of a chaplain, when regularly made before a magistrate, after due caution as to its probable result, and of the futility of relying on any expected favor from it, has been received, and, accompanied by corroborating proof, sentence of death and execution has followed. The same evidence might have been admitted on a military trial; and equally so, if the confession had been made to an officer or other person. It should clearly appear that the exhortation to tell the truth, by whom ever made, was unaccompanied by any hope of favour as connected with the charge being held out or implied. A prisoner being in custody on a charge of murder, a fellow prisoner pressed him to tell “ how he murdered the boy.” The prisoner put his fellow on oath not to reveal what he told him, and then made a statement of the circumstances; it was held that this statement was admissible against the prisoner confessing." A confession obtained without either threat or promise, by questions put by a police officer, is admissible in evidence, although he had, of bis own authority, locked up the prisoner (a boy) without food for several hours :: and where a constable gave liquor to a prisoner for the purpose of obtaining a confession, and he confessed whilst under the effects of intoxication, it was held receivable, however little it might weigh with a jury.*

must bo

(1) 1 Phil. 112. I Leach, 349.
(2) 2 Leach, 637. (3) Rex r. Jenkins. Russ and Ry. 492.
(4) Rex v. Howes, 6 C. & P. 404.

nood not be

If a prisoner, who is committed on a charge Letter of of felony, ask the turnkey of the gaol to put a admitted

[ocr errors]

(1) Rex v. Gilliam, cor. by the twelve judges.
(2) Rex v. Shaw, 6 C. & P. 372.
(3) Rex v. Thornton, Ry. M. C. C. R. 27.
(4) Rex v. Spilsbury, 7 C. & P: 187.

against him.

by prisoi er
against him;

letter into the post, addressed to the prisoner's father, and the turnkey promise to do so; and instead of that, on receiving the letter, he conveys it to the visiting magistrates of the gaol, who forward it to the prosecutor, this letter is

evidence against the prisoner, notwithstanding Evidence given the manner in which it was obtained. The

evidence which a person gave before a committee of the house of commons, was afterwards admitted against him on a trial for misdemeanour : but, more recently, it was held that the balance sheet of a bankrupt, given on oath under his commission, was not admissible against him, upon a charge for concealing his effects.

The testimony of a person on a previous trial, on a subject corected with the charge, and also answers in chancery,* may be given in evidence, but a confession of a prisoner on oath cannot be received against him.”

It is a general rule that the whole of adand confessiour missions or confessions must be taken to

gether, that what is given in evidence may be neither more nor less than what the prisoner intended. Thus, if a person, in making an admission against his own interest, refers to a written paper, without which the admission is not complete, the contents of the paper ought to be shewn before the statement can be used as evidence against the party. Or, if a person says,

General rule as to adminsins

(1) Rex v Derrington, 2 Carr. and P. 418.
(2) Rex o. Merceron, ? Stark. 306.
(3) Rexo. Britton, 1 M. & Ro. 297.

(4) 1 Phil. 92. (5) Ib. 114. See the opinion of the judge advocate general as to the inadmissibility of matter urged in his defence by an officer at a court of enquiry, as evidence against him, before a court martial,

page 471.

« EelmineJätka »