Page images
PDF
EPUB
[ocr errors]
[ocr errors]

in the year

you do in your proper persons appear before our justices assigned to keep the peace in our county of

and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, at the general quarter sessions of the peace, to be holden at in and for the said county, on

the day of

at the hour of ten in the forenoon of the same day, to testify the truth, and give evidence on behalf of the inhabitants of the parish of

in the said county, against A. O. in a case of bastardy. And this you are in nowise to omit, nor any of you to omit, on pain of one hundred pounds. Witness the day of

in the

year of our reign.

C.
A Subpæna Ticket.
To Mr. A. W.
By virtue of his majesty's writ of subpoena to you directed, and

herewith shewn to you, you are personally to be before his majesty's justices of the peace for the county of

at the general quarter sessions of the peace to be holden for the said county at -, in the said county, on

the

day of next, to testify the truth, and to give evidence on behalf of the inhabitants of the parish of

in the said county, against A. O., in a case of bastardy. And this you are not to omit, upon pain of one hundred pounds. Dated this

day of
By the court,

C.
(B.) Condition of a Recognizance to appear and give Evidence,

in a Case where the King is a Party. THE condition of this recognizance is such, that if the above-bound

A. W. shall personally appear at the next general quarter sessions of the peace to be holden at

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 to wit.

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 -
in the said county, yeoman, is a material witness to be examined
touching the matters alleged in or concerning the said information, or
some of them : These are therefore to require you to summon the said
L. M. to be and appear before me at

in the said county,
the
day of

at the hour of

(B.)

[ocr errors]

(C.)

}

on

7

what you
under my

(D.)

in the

noon of the same day, to be examined, and to testify his knowledge concerning the premises ; and be you then there to certify

have done in the premises. Herein fail you not. Given hand and seal, the

day of

in the year

(D.) Summons of a Witness. To L. M. of 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 county, against A. B. of

labourer, that (here set forth the substance of the charge] ; and whereas also it appears to me that you are a material witness to be examined concerning the same : These are therefore to require you personally to be and appear before me in the said county, on

the day of at the hour of

in the

- noon of the same day, to testify your knowledge concerning the premises. Herein fail you not. Given under my hand and seal, the - day of in the year of the reign of

at

[ocr errors]

II. Confessions and admissions, and herewith of

@raminations aud Depositions before Justices of

the peace. Declarations of In Rex v. Hardwicke, 11 East, 578., it was decided that the rated inhabi- 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.
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.

In Rer 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

be 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 exa. mined, you may in that case give evidence of his declaration."

MS.(a) Confession of Confession is twofold, either expressed or implied. prisoner. An express confession is, where a person directly confesses the Express. 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. S. c. 170. ante p. 1032., by which rated inhabitants may be examined as witnesses for or against their own parish. But quere whether this makes any difference. In Foulaity". Rowe, 1 Adol. f EU. 114., it was held that declarations respecting the subjects matter of a cause, by a person who at the time of making them had the surge 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

dence. 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, Confessions sufwhether in the course of conversation with private individuals, or ficient for conunder examination before a magistate, is admissible in evidence as

viction without the highest and most satisfactory proof, because it is fairly pre

proof aliunde. sumed 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. Č. R. 440. Rex v. Faulkner, ibid. 481. (b)

But a confession, in order to be admissible, must be free and Must be free voluntary: that is, must not be extracted by any sort of threats or

and voluntary. 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: -“ 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."

(6) 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, onla 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, 1 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 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,

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. Ć. 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 imme. diately 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. What is a pro

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 gire or inducement,

me a more satisfactory account, I will take you before a magistrati," such as to exclude a con

cannot be received in evidence. So also saying to the prisoner fession.

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, 0. B. Dec. sess. 1783. Leach, 291. 2 East, P. C. 659.

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. Rer v. Richards, 5 C. & P. 318.

Thomas Cass was indicted at the 0. 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. Worrack shall's case, cor. Eyre and Nares Bs. I Leach, 263. Three men were tried and convicted for the murder of Mr. Harrison, of Campden, in Glaucestershire 03 of them, under a 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 appeared that Mr. Harrison was alive. Ibid. note (a).

So also, in Rex v. Jones, before Chambre J. at Winchester Lent ass. 1809, upon an indictment for stealing money to the amount of 12. 88., the property of John Webb, a private in the Somerset militia, it appeared that the prosecutor asked the prisoner, on finding him, for the money he had taken out of his, the prosecutor's pack, but, before the money was produced, told the prisoner, when in the custody of a constable, that “ he only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased :" in consequence of which the prisoner took 11s. 6 d. out of his pocket, and said it was all he had left of it. A majority of the judges, on case reserved, held the evidence inadmissible. R. & R. C. C. R. 152. (But see Rex v. Griffin, post, p. 1090.)

So where a prisoner being in custody, said to the officer who had the charge of him, “ If you will give me a glass of gin, I will tell you all about it,” and two glasses of gin were given him, and he made a confession of his guilt, Best J. considered it as very improperly obtained, and inadmissible in evidence. Rex v. Sexton, post, p. 1086. (a)

A confession made by the prisoner with a view and under the hope of being thereby permitted to turn king's evidence (6), has been held inadmissible. Hall's

's case, 2 Leach, 559. note. Indictment for administering arsenic to Eliza Bates, with intent to murder her. It appeared that the surgeon who was called in saw the prisoner, and said to her, “ You are under suspicion of this, and you had better tell all you know;" and after this she made a statement to the surgeon.-Mr. Justice J. Parke, having conferred with Mr. Justice Littledale, held, that evidence of this statement was inadmissible. Rex v. Kingston, 4 C. & P. 387.

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, Parke and Taunton Js. held the confession inadmissible. Rex v. Enoch, 5 C. & P. 539.

Where a constable said to a prisoner charged with Jarceny, “ It is of no use for you to deny it; for there are the man and boy who will say they saw you do it ;" a confession made after this was rejected by Gurney B. Rex v. Mills, 6 C. & P. 146. So where the words were,

“ It would have been better if you had told at first," the same learned judge rejected the statement. Rex v. Walkley, 6 C. & P. 175.

In

(a) The authority of this decision seems doubtful; for it is not every hope of favour held out to a prisoner that will render a confession afterwards made by him inadmissible: the promise must have some reference to his escape from the charge. Thus where a man and his wife were in prison in separate rooms, on a charge of stealing and receiving, and the constable said to the man, “ If you will tell where the property is, you shall see your wife,” Patteson J. held that a confession made afterwards was admissible. Rex v. Lloyd, 6 C. & P. 393. Rex v. Spilsbury, 7 C. & P. 187., the prisoner made a statement to a constable in whose custody he was, being drunk at the time, and it was imputed that the constable had given him liquor to cause him to be so. Coleridge J. received evidence of the statement, observing that to render a confession inadmissible, it must either be obtained by hope or fear; but that it would be a matter of observation for him, as a judge, in summing up, upon the weight that ought to attach to such a statement when it was considered by the jury.

(6) Where a person had been admitted king's evidence, and confessed, and, upon the trial of his accomplices, refused to give evidence, he was convicted upon his own confession. Rex v. Burley, Slark. Ev. pt. iv. p. 23.

« EelmineJätka »