So also, in Rex v. Jones, before Chambre J. at Winchester Lent ass. 1809, upon an indictment for stealing money to the amount of 11. 8s., 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. 6d. 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 (b), has been held inadmissible. Hall'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 larceny, "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.

(b) 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, Stark. Ev. pt. iv. p. 23.

Confessions

made to persons after promises of favour by other parties.

Where a witness stated that he had said to one of the prisoners, "You had better split, and not suffer for all of them," Patteson J. rejected the evidence of what was aftewards said by that prisoner to this witness. Rex v. Thomas, 6 C. & P. 353.

On the trial of an indictment against a servant, before Parke B., for a misdemeanor in attempting to set fire to her master's house, it appeared that the prisoner was a girl of thirteen, and domestic servant to the prosecutor, who kept a beer-house. His wife lived with him, and took her share in the management of the house. After the attempt to set the house on fire was discovered, the prisoner came into the room where her mistress was, in the absence of the prosecutor, and her mistress said to her, "Mary, my girl, if you are guilty, do confess; it will perhaps save your neck; you will have to go to prison if William H. (another person suspected, and whom the prisoner had charged) is found clear; the guilt will fall on you." She made no answer. The mistress then said, "Pray tell me if you did it?" The prisoner then confessed. It was contended, on the part of the prosecution, that the prosecutor's wife had no authority, real or apparent, over the prosecution, so as to hold out any hope which could influence the prisoner, so as to make a false statement, in order that her life might be spared, and therefore that her confession was admissible; and Rex v. Hardwick, 1 Phil. Ev., and Rex v. Row, C. C. R. 153. (see post, 1083.) were cited. The confession was received in evidence, and the prisoner having been convicted, the question as to its admissibility was reserved for the consideration of the judges. At a meeting of ten judges, Jan. 16. 1836, it was held that the conviction was wrong. H. T. 1836. MS. Rex v. Maria Anne Upchurch, Huntingdon Summer assizes, 1835.

In Rex v. Dunn, 4 C. & P. 543., Bosanquet J. said, "Any person telling a prisoner that it will be better for him to confess, will always exclude any confession made to that person. Whether a prisoner's having been told by one person that it will be better for him to confess will exclude a confession subsequently made to another person is very often a nice question; but it will always exclude a statement made to the same person."

In a case where hopes of favour had been given, and the prisoner refused before the magistrates to confess, except upon conditions, Mr. Justice Buller observed, that there must be very strong evidence of an explicit warning by the magistrate not to rely on any expected favour on that account, and it ought most clearly to appear, that the prisoner thoroughly understood such warning before his subsequent confession could be given in evidence: 2 East, P. C. 658. So where the committing magistrate told the prisoner that, if he would make a confession, he would do all he could for him; and after his committal the prisoner made a statement to the turnkey, who held out no inducement, and gave no caution; J. Parke J. said, he thought the evidence ought not to be received, after what the committing magistrate had said to the prisoner, more especially as the turnkey had not given any caution: Rex v. Cooper, 5 C. & P. 535. But in a case tried before Mr. Justice Bayley (Rex v. LinWhen such are gate, 1 Phil. Ev. 105.), where it appeared that the prisoner, on being taken into custody, had been told by a person who came to assist the constable, that it would be better for him to confess, but

admissible.

7*

that, on his being examined before the committing magistrate on the following day, he was frequently cautioned by the magistrate to say nothing against himself, a confession under these circumstances before the magistrates, was held to be clearly admissible. In a still later case, it appeared that a constable told the prisoner he might do himself some good by confessing; the prisoner afterwards asked the magistrate if it would benefit him to confess; on which the magistrate said he could not say it would, and the prisoner declined confessing; but afterwards in his way to prison, he made a confession to another constable; the judges were unanimous in holding, that the confessions were admissible in evidence, on the ground that the magistrate's answer was sufficient to efface any expectation which the constable might have raised: Rex v. Rosier, 1 Phil. Ev. 105. And where persons having nothing to do with the apprehension, prosecution, or examination of the prisoner, advised him in the presence of the constable who had him in custody, to tell the truth, and consider his family; it was held that such admonition was no ground for excluding a confession made an hour afterwards to the constable in prison: Rex v. Row, Russ. & Ry. C. C. R. 153. Nor is it any objection to a confession made before a magistrate, that the prosecutor, who was present, first desired the prisoner to speak the truth, and suggested that he had better speak out, provided the magistrate or his clerk immediately checked the prosecutor, desiring the prisoner not to regard him, but to say what he thought proper: Rex v. Edwards, 1 Phil. Ev. 104. So where the counsel for the prisoner objected to a confession before a committing magistrate, and offered to prove that the wife of the constable had told the prisoner, some days before the commitment, that it would be better for him to confess, Mr. Baron Wood over-ruled the objection, and admitted the confession : Rex v. Hardwick, Phil. Ev. 105.

In the case of Rex v. Eliz. Gibbons (1 Carr & P. 97.), who was indicted for the murder of her bastard child, a surgeon was called to prove certain confessions made by the prisoner to him. He stated that he had held out no threat or promise to induce her to confess; but a woman who was present, said that she had told the prisoner she had better tell all; and then the witness made certain confessions to the surgeon. It was thereupon objected by the counsel for the prisoner, that as the confession was made after an inducement held out, it could not be received in evidence: but Mr. Justice Park, before whom the trial took place, after consulting with Mr. Baron Hullock, held that as no inducement had been held out by the surgeon, to whom the confession was made, and the only inducement had been held out by a person having no authority, it must be presumed that the confession to the surgeon was a free and voluntary one. If the promise had been held out by a person having any office or authority, as the prosecutor, constable, &c., the case would be different: but here some person, having no authority of any sort, officiously says, you had better confess. No confession follows, but sometime afterwards, to another person, the prisoner, without any inducement held out, confesses. learned judge added, that he and Mr. Baron Hullock had not the least doubt that the evidence was admissible. The same law was afterwards laid down by Mr. Baron Hullock, in the case of Rex v. Tyler and Finch (1 Carr. & P. 129.), where the counsel on the

The

part of the prosecution was about to prove a confession of the prisoner Finch made to a constable, and the counsel for the prisoners proposed to shew that the prisoner Finch, being locked up alone in a room at a public house, was told by a man that the other prisoner had told all, and he had better do the same to save his neck; and that on this, he confessed. But the learned Baron held, that as the promise (if any) was by a person wholly without authority, the subsequent confession to the constable, who had held out no inducement, must be considered as voluntary, and was therefore evidence.

The result of these cases seems to be, that a confession is not inadmissible, although made after an exhortation, or admonition, or other similar influence, proceeding at a prior time from some one who has nothing to do with the apprehension, prosecution, or examination of the prisoner: for a promise made by a person who interferes without any authority of this kind, is not to be presumed to have such an effect on the mind of the prisoner as to induce him to confess.

The above cited cases of Rex v. Lingate and Rex v. Rosier further appear to establish the proposition, that if the impression that a confession is likely to benefit him has been removed from the mind of a prisoner, what he says will be evidence against him, although he has been advised to confess. Accordingly, in Rer v. Clewes, 4 C. & P. 221., a prisoner charged with murder was visited by a magistrate, who told him that if he was not the man who struck the fatal blow, he would use all his endeavours and influence to prevent any ill consequence from falling on him, if he would disclose what he knew of the murder. The magistrate wrote to the secretary of state, who returned an answer that mercy could not be extended to the prisoner; which answer was communicated to the prisoner, who afterwards sent for the coroner, and desired to make a statement to him. The coroner cautioned him, and added, that no hopes or promise of pardon could be held out to him.- Littledale J. ruled that a confession subsequently made by the prisoner to the coroner, was admissible; for that the conversation with the magistrate after he received the secretary of state's letter, and the caution given by the coroner, must be taken to have completely put an end to all the hopes that had been held out. (See also Rex v. Richards, post, p. 1087. Rex v. Howes, ibid.)

It is no objection that the confession was made under a mistaken supposition that some of the prisoner's accomplices were in custody: not even though some artifice has been used to draw him into that supposition; Rex v. Burley, 1 Phil. Ev. 104.

In a case reserved for the opinion of the twelve judges, a person of the name of Miller, the chief officer of the police at Liverpool, stated, that on the 18th of November, the prisoner, a boy of fourteen years of age, was apprehended by his directions, without any warrant, between twelve and one o'clock, and that he was carried to the police-office about one o'clock. The magistrates were then sitting at a very short distance, and continued sitting till between two and three, and till the business presented to them was finished; but the prisoner was not carried before them, be cause the police officer was engaged elsewhere. The officer or dered the prisoner to bridewell on his own authority, between four

and five o'clock; and between five and six o'clock, he told the prisoner, that in consequence of the falsehoods the prisoner had told, and the prevarications he had made, there was no doubt but he had set the premises on fire; and he therefore asked him if any person had been concerned with him, or induced him to do it? The prisoner said he had not done it. The police officer replied, that he would not have told so many falsehoods as he had, if he had not been concerned in it, and he again asked him if any body had induced him to do it? The prisoner then began to cry, and made a full confession. In speaking of the falsehoods the police officer referred to an examination of the prisoner he had himself made. The prisoner was taken before he had dined, and had had no food from the time he was apprehended till after his confession. The learned judge thought it deserved consideration, whether a confession so obtained, when the detention of the prisoner was perhaps illegal, and when the conduct of the officer was calculated to intimidate, was admissible in evidence, and reserved the point for the opinion of the judges. In Trinity term 1824, the judges met and considered this case, and the majority of the judges present, viz. Abbott Ld. C. J., Alexander C. B., Graham B., Park J., Burrough J., Garrow B., Hullock B., held the confession rightly received, on the ground that no threat or promise had been used. Best C. J., Bayley J., Holroyd J., were of the contrary opinion. Rex v. Sylvester Thornton, Ry. & Mood. C. C. R. 27.

In another case (Rex v. Derrington, 2 C. & P. 418.), where the prisoner, while in gaol, asked the turnkey if he would put a letter into the post for him, and after his promising to do so, the prisoner gave him a letter addressed to his father, and the turnkey, instead of putting it into the post, gave it to the visiting magistrates of the gaol, who gave it to the prosecutor; it was held by Mr. Baron Garrow, that the letter so obtained, was admissible in evidence; and the learned Baron said, he remembered making an objection, when at the bar, to evidence under the same circumstances before Mr. Justice Gould, who overruled it.

Where, on a prisoner being brought up for examination, the magistrates told him that his wife had already confessed the whole, and that there was enough against him to send a bill before the grand jury, upon which the prisoner immediately made a confession; the reception of the confession was objected to, on the ground of its having been made upon a threat; but Parke J. overruled the objection, saying, that he rather considered it as a caution. Rex v. Wright, Lewin C. C. 48.

Where a prisoner, charged with arson, was told "that there was a very serious oath laid against her by B. B., who had sworn that she had set fire to O.'s rick," a confession afterwards made by the prisoner was received by Gurney B. in evidence. Rex v. Long, 6 C. & P. 179.

In the case of Rex v. Gilham, reserved for the opinion of the Rex v. Gilham. twelve judges, and argued before them in Easter term 1828 Confession ob(1 Mood. C. C. 186.), the prisoner had been tried and convicted tained by the for murder, principally upon the evidence of his own confessions influence of reto the gaoler and the mayor. These confessions the prisoner had ligious perbeen induced to make by the previous exertion of religious persuasion on the part of the chaplain of the gaol, and under the influence of his representations of the Christian necessity and

suasion.