Expenses need not be tendered in criminal cases. Attendance of witnesses how It has been doubted whether in all cases, as well as in those within the last-mentioned statute, a witness may not lawfully refuse to obey a subpoena on a criminal prosecution, as well as a civil suit, unless he has a tender of his reasonable expenses; but the better opinion seems to be, that witnesses making default on criminal prosecutions are not exempted from attachment, on the ground that their expenses were not tendered at the time of the service of the subpoena: although the court would have good reason to excuse them for not obeying the summons, if in fact they had not the means of defraying the necessary expenses of the journey. (a) Formerly the law provided no means for reimbursing the witnesses on criminal prosecutions; but by stat. 7 G.4. c. 64. § 22, 23., remunerated in the expenses of witnesses in certain cases of misdemeanor, as well as in all felonies, may be allowed. (See this subject fully considered, ante, tit. Costs.) criminal cases. Protection of witness from arrest. Attendance of witnesses on proceedings before justices out of sessions. (A.) A person subpoenaed as a witness, or bound over by recogniz ance, either to prosecute or give evidence, or attending voluntarily for the bona fide purpose of giving evidence, is privileged from arrests during the necessary time occupied in going to the place where his attendance is required, in staying there for the purpose of such attendance, and in returning from that place. Meekins v. Smith, H. Bl. 636. And in allowing witnesses time sufficient for these purposes, the court are always disposed to be liberal. If a witness under these circumstances be arrested, the court out of which the subpoena issued, or the judge of the court in which the cause has been or is to be tried, will, upon application, order him to be discharged. With respect to proceedings before justices out of sessions, the GEORGE the fourth, by the grace of God, of the united kingdom of (a) At York Summer assizes, 1820, Bayley J. ruled, that an unwilling witness, who required to be paid before he gave evidence, could not demand it. He said, "I fear I have not the power to order you your expenses." And on asking the bar if any one recollected an instance, Scarlett answered, "It is not done in criminal cases.' MS. In The King v. Cooke (an indictment for a conspiracy, removed into the K. B. by certiorari), a witness called by the defendant stated, before he was examined, that at the time he was served with a subpons, no money was paid him; he therefore asked that the judge would order the defendant to pay him his expenses before he was examined. Park J., having consulted with Garrow B., said they were of opinion that the judge had no power in a criminal case to order a defendant to pay a witness his expenses, although subpoenaed, and though the indictment came to be tried as a civil record. 1 Carr. & P. 521. , , the you do in your proper persons appear before our justices assigned to our reign. day of the To Mr. A. W. day of in the A Subpoena Ticket. year of BY virtue of his majesty's writ of subpoena to you directed, and at the at the day of inhabitants of the parish of - day of C. (B.) Condition of a Recognizance to appear and give Evidence, in a Case where the King is a Party. of the peace to be holden at THE condition of this recognizance is such, that if the above-bound A. W. shall personally appear at the next general quarter sessions in and for the said county, and then and there give such evidence as he knoweth, upon a bill of indictment to be exhibited by A. I., of yeoman, to the grand jury, against A. O., late of in the said county, yeoman, for the feloniously taking and carrying away the property of ; and in case the said bill be found a true bill, then if the said A. W. shall then and there give evidence to the jurors that shall pass on the trial of the said A. O. upon the said bill of indictment, and not depart thence without leave of the court, then his recognizance to be void, otherwise of force. (C). Precept to Constable to summon a Witness in case of an Information before a Justice. To the constable of WHEREAS information and complaint [upon oath or in writing, if the statute so requires] hath been made before me, G. T. esquire, one of his majesty's justices of the peace for the said county, against A. B., of labourer, that [set forth the substance of the charge], and that L.M., of· (B.) (C.) (D.) Declarations of rated inhabi in the noon of the same day, to be examined, and to testify in the County of WHEREAS information [on oath or in writing, if } required by the statute] hath been made before me, J. P., esquire, one of his majesty's justices of the peace for the said at of at the hour of the in the day noon of the same day, to testify your knowledge concerning the premises. Herein fail you not. Given under my hand and seal, the day II. Confessions and Admissions, and herewith of Examinations aud Depositions before Justices of the Peace. In Rex v. Hardwicke, 11 East, 578., it was decided that the declarations of a rated inhabitant of either parish, concerning the tants on trial of facts in issue, are admissible in evidence on the trial of appeals, appeals. not only against himself, but also against the other rated inha bitants of his parish. And it is by no means necessary, in order to make such declarations evidence, that he should first be called as a witness and refuse to be examined. Rex v. Whitley Lower, T.53. G. 3. 1 M. & S. 636. Confession of prisoner. Express. All the rated inhabitants are considered as parties to the appeal, and therefore their declarations are evidence; if what they have said is mere idle conversation, it will have but little weight. Per Ld. Ellenborough C. J. S. C. and MS. be In Rex v. Hardwicke (above mentioned), Bayley J. said,-"I do not think that in ordinary cases magistrates should give any weight to mere declarations of this kind: though there may occasions when the declaration of such a party would have great weight, as if a person having gained a settlement by hiring and service were to become a lunatic, the master refuses to be examined, you may in that case give evidence of his declaration." MS. (a) Confession is twofold, either expressed or implied. An express confession is, where a person directly confesses the crime with which he is charged; which is the highest conviction that can be. 2 Haw. c. 31. § 1. (a) These decisions were before the passing of the stat. 54 G. 3. c. 170. ante, p. 1032., by which rated inhabitants may be examined as witnesses for or against their own parish. But quære whether this makes any difference. In Woolway ▼ Rowe, 1 Adol. & Ell. 114., it was held that declarations respecting the subject. matter of a cause, by a person who at the time of making them had the same interest in such matter as one of the parties now has, are admissible in evidence against that party, though the maker is alive, and might be called as a witness. But it is usual for the court, especially if it be out of clergy, to advise the party to plead and put himself upon his trial, and not presently to record his confession, but to admit him to plead. 2 Hale, 225. An implied confession is where a defendant in a case not capital Implied. doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and desiring to submit to a small fine; which submission the court may accept of if they think fit, without putting him to a direct confession. 2 Haw. c. 31. § 3. It seems that the confession of the defendant himself, whether Defendant's taken on an examination before justices of peace in pursuance of confession may the statutes of Ph. & M. upon a bailment or commitment for be given in evifelony, or in discourse with private persons, hath always been allowed to be given in evidence against the party confessing, but not against others. 2 Haw. c. 46. § 3. A free and voluntary confession of guilt made by a prisoner, whether in the course of conversation with private individuals, or under examination before a magistate, is admissible in evidence as the highest and most satisfactory proof, because it is fairly presumed that no man would make such a confession against himself, if the facts confessed were not true. Gilb. Ev. 123. Lambe's case, 2 Leach. 554. 4th edit. (a) And the highest authorities have now established, that a confession, if duly made, and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence aliunde. Wheeling's case, in note 1 Leach, 311. Rex v. Eldridge, Russ. & Ry. C. C. R. 440. Rex v. Faulkner, ibid. 481. (b) But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. (c) Before (a) Mr. Justice Blackstone, and Mr. Justice Foster, entertained a different opinion. (See Fost. 243.) The former, in the fourth volume of his Commentaries, p. 357., says, in speaking of confessions made to persons not in authority as magistrates: 5:-"Even in cases of felony at common law, they are the weakest and most suspicious of all testimony, very liable to be obtained by artifice, false hopes, promise of favour, or menaces, seldom remembered accurately, or reported with precision; and incapable in their nature of being disproved by other negative evidence." (b) But an admission will not conclude the prisoner, if it turn out that the fact admitted is otherwise in point in law. Thus, in a case before Le Blanc J. at York, the prisoner, on a trial for bigamy, had confessed the first marriage, but it appeared that it was void for the want of the consent of the guardian of the woman, and the prisoner was acquitted. 2 Stark. Ev. 654. note (x), 2d edit. So, onļa trial for setting fire to a ship, where an objection was taken that the ownership (in point of law) had not been properly stated in the indictment, it was contended that the statement of the prisoner as to who were the owners, would aid the objection; but on argument before the twelve judges, all reliance on such statement (upon the suggestion of Lord Tenterden) was abandoned. Rer v. Philp, Mood. C. C. R. 271. (c) It is a mistaken notion that evidence of confessions obtained by promises or threats, is to be rejected from regard to public faith. Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving the highest credit, because it is presumed to flow from the strongest sense of guilt; and therefore it is admitted as proof of the crime to which it refers: but a confession forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, dence. Confessions suf ficient for con viction without proof aliunde. Must be free and voluntary. What is a pro or inducement, such as to exclude a con any confession can be received in evidence, it must be ascertained with certainty, that such confession was neither obtained by threats nor promises, but was perfectly free and voluntary, without any menace, or undue terror imposed upon the prisoner (2 East's P. C. 657.): for, says Ld. Hale, I have often known the prisoner disown his confession upon his examination, and hath sometimes been acquitted against such his confession. 2 Hale, 284, 285. A prisoner was in the custody of A., a constable: B., another constable, coming into the room, A. left it, and the prisoner immediately made a confession to B.: Patteson J. held, that, if the prisoner was in custody as an accused party, A. must be called to prove that he had held out no inducement to the prisoner to confess before the confession made to B. was receivable in evidence ; but that it would be otherwise if the prisoner was not then in custody on any charge, but merely detained as an unwilling witness. Rex v. Swatkins, 4 C. & P. 540. As to what shall be considered as a threat or promise; it has mise, or threat, been held that a confession induced by saying, " Unless you give me a more satisfactory account, I will take you before a magistrate,” cannot be received in evidence. So also saying to the prisoner that it would be worse for him if he did not confess, or that it would be better for him if he did, is sufficient to exclude the confession, according to constant experience. Rex v. Thompson, O. B. Dec. sess. 1783. 1 Leach, 291. 2 East, P. C. 659. fession. So where a girl, accused of poisoning, was told by her mistress that if she did not tell all about it that night, a constable would be sent for in the morning to take her before a magistrate, and then made a statement, Bosanquet J. held that it was inadmissible. Rex v. Richards, 5 C. & P. 318. Thomas Cass was indicted at the O. B. in Feb, sess. 1784, for stealing, on the 4th of the same month, an iron bar, the property of Edward Meux, esq. It was the bar of a window belonging to a public house in High Street, Bloomsbury, and the prisoner, on pretence of drinking a pint of beer, contrived to take it away. On going the ensuing evening to the same house, the publican, suspecting that he was the person who had stolen the bar, sent for a constable, by whom on the charge given, he was taken to the watch-house, where he remained all night. On the next morning, the constable, as he was taking him to the magistrate, called with him at the publican's house, and in the conversation which took place, the publican said, “I am in great distress about my irons; if you will tell me where they are, I will be favourable to you." In consequence of which the prisoner confessed that he had taken the property, and told him where it was; but there being no other evidence, Gould J. told the jury they must acquit the prisoner; for that the slightest hopes of mercy held out to a prisoner to induce him to disclose the fact, was sufficient to invalidate a confession. 1 Leach, 293. notis. that no credit ought to be given to it: and therefore it is rejected. Warwick- |