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lowed to be proved at the trial of a prisoner, however careful a magistrate might be that a prisoner should not be entrapped into a confession, an over-zealous constable might defeat the humane provisions of the law, by so practising on the hopes and fears of a prisoner just before he came into the magistrate's presence, as to make him, when before the magistrate, appear to make an uninfluenced and voluntary confession, when every sort of trick had been made use of. I will not on this ground allow this confession to be read. But we have not the confession of the prisoner ; we have only the officer's recollection of it, put into writing when the prisoner was not present, and in the language of the officer, and not in the words used by the prisoner. If a confession be not taken in writing, we must be content with the recollection of the witness who proves it, because we cannot have any more certain account of it. I will receive nothing as a confession in writing that was not taken down from the mouth of the prisoner in his own words, nothing that he says that has any relation to the subject being omitted, nor any thing added except explanations of provincial expressions or terms of art. The reading this paper to the prisoner, and his acknowledgment that it was correct, does not remove the objection. By the change of language, a very different complexion might be given to the story from what it had when it came from the mouth of the prisoner, and which he might not discover when it was read over to him. The lower orders of men have but few words to convey their meaning, and they know as little of expressions that they are not in the habit of using, as if they belonged to another language. I will not receive this paper in evidence, and I hope that I shall not find a police officer again employed in preparing, either the deposition of witnesses, or the confessions of prisoners. - Alderson, counsel for the prosecution, then said, that Dallas C. J. had refused to receive, at a former assizes at Norwich, a confession, because it was not in the prisoner's own words.

But 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; she then made a statement, which was held to be not admissible in evidence. Next day, a constable was sent for, and as he was taking her to the magistrate, she said something to him, he having held out no inducement to her to do so.- Bosanquet J, held, that this was receivable, as the former inducement ceased on her being put into the hands of the constable : Rex v. Richards, 5 C. & P. 318.

Again, where a prisoner, who had made a confession to a constable in consequence of a promise held out, was taken before a magistrate, who, knowing what had taken place, cautioned the prisoner against making any confession before him, but the prisoner, notwithstanding, did make a confession to the magistrate,

- Ld. Denman held, that the second confession was receivable, though it did not appear that the magistrate told the prisoner that his first confession could have no effect, and he therefore might have acted under an impression, that having once acknowJedged his guilt, it was too late to retract. Rex v. Howes, 6 C.

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Confessions It has been said that a prisoner ought not to be questioned by elicited by

a magistrate ; and in the case of Rex v. Wilson, Holt, N. P.C. 597. questions.

cor. Richards C. B. (see tit. Eramination, post, Vol. III. (Criminal Law,) p. 203.), the prisoner's statement was on this account rejected as inadmissible : but Mr. Starkie, in his Treatise on Eridence

, part iv., observes, that by the statute of Phil. & Mar. (repealed and substantially re-enacted by stat. 7 G. 4. c. 64.), the magis. trate is to take the examination of the prisoner ; and he cites a case where Mr. Justice Holroyd admitted the prisoner's examination to be read against him, notwithstanding this objection And in a still later case, Rex v. Ellis, 1 Ry. & Mood. 432, Mr. Justice Littledale held that the examination of the prisoner takes before the committing magistrate was admissible, though it a peared that part of it had been elicited by questions put by the magistrate. So a confession obtained without threat or promise from a boy fourteen years of age, by questions put by a police officer in whose custody the boy was, on a charge of felony

, va held rightly received. Rex v. Silvester Thornton, 1 Ry. & Mod C.C.R. 27., ante, p.1085. So in Rex v. Merceron, 2 Stark. N. P.C.

366., it was proposed, in the course of the evidence for the proše On examination cution, to prove what had been said by the defendant in his est as witness on mination before a committee of the house of commons, which the compulsory pro- defendant had been compelled to attend ; and on the

defendant it was objected, that since this statement had been made under a compulsory process from the House of Commons, an under the pain of incurring punishment as for a contempt of the house, the declarations were not voluntary, and could not be at mitted for the purpose of criminating the defendant ; overruled the objection and admitted the evidence. So in Rex Walker (cited by Gurney B. in 6 C. & P. 162.), on an indictme for forging a will, an affidavit was given in evidence which he been made by one of the prisoners in a suit in Ioctors' Com mons, and the prisoner was convicted and executed. And where? prisoner had been examined upon oath, on a charge against another person, Parke J. received evidence of that examination, as a c* fession, observing, that upon that, as upon every other occae the prisoner might have refused to answer any question having tendency to expose him to a criminal charge; and not having de so, his examination was evidence against him.

Rex v. Hope Greenwood's Col. Stat. 138. So in Rex v. Tubby, 5 C. & P. 34 Vaughan B. admitted in evidence a statement made by the soner on oath, at a time when he was not under suspicion. $ a witness answers questions to which he might have demurret subjecting him to penalties, his answers may be used against for all legal purposes; and therefore in an action on 5 G. 26. $21., the defendant's examination before the commissioners' allowed to be given in evidence, to shew that by his own confes he had concealed the property of the bankrupt. Smith v. Beatis

1 Campb. 30. (See also Stockfleth v. De Tastet, 4 Campb. 10. Examination on But the account given by a prisoner charged as such befi* oath of party magistrate ought not to be upon oath ; and if the prisoner has charged not admissible.

sworn, his statement cannot be received. Rex v. Smith, 18 N. P. C. 242. (See this case and the law as to examinations by gistrates generally, tit. Eramination, Vol. III. (Criminal Law,)p?

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And where the examination of a prisoner before the magistrate
previous to his committal, purported to have been taken on oath,
Mr. Justice Le Blanc refused to admit evidence to shew that, in
fact, the examination was not on oath. Ibid. S. P. Rex v. Rivers,
7 C. & P. 177., ruled by Park J.

Where a prisoner, being mistaken for a witness, was sworn, but
the stake being discovered, the deposition, which had been com-
menced, was destroyed, and the prisoner, subsequently, after a
caution from the magistrate, made a statement, Garrow B. received
that statement. Rex v. Webb, 4 C. & P. 564. But where several
persons (one of whom was the prisoner) were summoned before
the committing magistrate touching the poisoning of one Elizabeth
Davis, and no person was specifically charged with the offence, but
the prisoner was sworn and made a statement, and at the con-
clusion of the examination he was committed for trial; Gurney B.
held that this statement was not receivable on an indictment for
administering the poison. Rex v. Lewis, 6 C. & P.161.

It has been determined by the opinions of all the judges that Discoveries in although confessions improperly obtained are not admissible, yet consequence of that any facts which have been brought to light in consequence of confessions. such confessions may be received in evidence. 1 Phil. Ev. 108. Thus, where a prisoner was indicted as an accessory after the fact, for having received property, knowing it to be stolen, and had, under promises of favour, made a confession; and in consequence of it the property had been found in her lodgings, concealed between the sackings of her bed : it was held that the fact of finding the stolen property in her custody might be proved, although the knowledge of it was obtained by means of an inadmissible confession. Rex v. Warickshall, 1 Leach. 263. O. B. 1783.: S.P. Mosey's case, 1 Leach. 265.(n.) 0. B. 1784. So where a prisoner indicted for stealing a number of diamonds and pearls had been improperly induced to make a confession, from which it appeared that he had disposed of part of them to a certain person ; it was held allowable on the part of the prosecution to call that person to prove that he had received the property from the prisoner. Lockhart's case, 1 Leach, 386. As far as these cases go, there can be no difficulty

as to the propriety of their decisions, because the bare facts of the s property being found in the possession of the prisoner in the one

case, and of his dealing with it as his own in the other, would, unconnected with any confession, have been clear evidence in support of the prosecution. But the cases have gone further than this, for it has been held that, on a prosecution for receiving stolen goods, where a confession had been improperly drawn from a prisoner, in the course of which he described the place where the goods were concealed, evidence might be given that he did so describe the place, and that the goods were afterwards found there. Grant's case and Hodge's case, 2 East. P. C. 658. In this case it is clear that the bare fact of finding the goods would be no evidence against the prisoner, unless coupled with a part of the improperly obtained confession. And some have accordingly doubted whether any part of such a confession can be used for such a purpose. Thus in the case of Richard Harvey, Lord Eldon C. J. said, that where the knowledge of any fact was obtained from a prisoner under such a promise as excluded the confession itself from being given in eviVOL. I.

4 A

dence, he should direct an acquittal ; unless the fact itself prored would have been sufficient to warrant a conviction without any confession leading to it; and he so directed the jury in that case. At Bodmin Summer assizes, 1800. 2 East. P. C. 658. See also Mosey's case, 1 Leach. 265., in note to Warickshall's case. But the more established rule, according to later practice and later autho. rities, is, that so much of the confession as relates strictly to the fact discovered by it may be given in evidence; for the reason of rejecting extorted confessions is the apprehension that the prisoner may have been induced to say what is false ; but the fact discovered shews that so much of the confession as immediately relates to it is true. Rex v. Butcher, 1 Leach. 265.; n. (a) to Warickshall's ease, 2 East. P. C. c. 16. s. 91. p.658. Thus it is proper, and it is now the common practice, to leave to the consideration of the jury, where a confession has been improperly obtained, the fact of the witness having been directed by the prisoner where to find the goods, and his having found them accordingly; but not the acknorledgment of the prisoner having stolen or put them there, which is to be collected or not from all the circumstances of the case.

2 East. P. C. c. 16. s. 94. p. 658. Acts done in So it has been determined, after consideration by all the judges

, consequence of that although confessions improperly obtained cannot be received a confession.

in evidence, yet that any acts done afterwards may be given in evidence, notwithstanding they were done in consequence of such

confession. Warickshall's case, i Leach. 265. Declarations

And from a decision in a late case, Rer v. Griffin, Russ. & Ry. accompanying c. C. R. 151., it should seem that what the prisoner sats, at the such acts. time such acts are done, may also be received in evidence

. In that case the prisoner was charged with stealing a guinea and two promissory notes. It appeared in evidence that one of the notes was a bank of England note for 51., and the other a Reading bank note for the like sum. The prosecutor told the prisoner he had better confess. Ir. Justice Chambre held, that although the prosecutor could not be allowed to prove a confession made after this admonition, he might be permitted to give evidence that the prisoner brought to him a guinea and a 51. Reading bank note, ukich he gare up to the prosecutor as the guinea and one of the notes that had been stolen from him. The note thus produced the prosecuior could not identify, otherwise than by its corresponding with the stolen note in the sum for which it was given, and in being a note of the same bank. Upon a conviction and a case reserved, the majority of the judges, Lord Ellenborough, Mansfield C. J. Moe donald C.B., Heath J., Grose J., Chambre J., and Wood B., agreed

with Mr. Justice Chamhre in thinking the conviction right and the Not admisible, evidence admissible

. (a) But where a prisoner was indicted for late except when

ceny, and had been induced by a promise from the prosecutor 69 confi. med.

confess his guilt; and after that confession he carried the officer to a particular house as and for the house where he had disposed of the property, and pointed out the

person to whom he had delivered'it; that person, however, denied knowing any thing about

(a) Lawrence and Le Blanc Js. were of a contrary opinion, that the production of ihe money was alone admissible, and not his saying at the time be produced one of the notes that it was one of the notes stolen from the prosecutor." (And see Rer v. Jones, Russ. f. fig. C.C. R. 153. antè, p. 1081.)

it, and the property was never found; it was held by the twelve judges that not only the confession, but the fact of the prisoner's carrying the officer to the house as above mentioned was inadmissible in evidence. The confession, it was said by their Lordships, was excluded, because being made under the influence of a promise it could not be relied on, and the acts of the prisoner, under the same influence, not being confirmed by the finding of the property, were open to the same objection: The influence which might produce a groundless confession might also produce groundless conduct. Rex v. Jenkins, Russ. & Ry. C. C. R. 492.

A man's confession is only evidence against himself, and not Confession eviagainst his accomplices. Tong's case, Kelyng. 18. Hevey's case, dence against 1 Leach, 232. And where the confession was made before a ma- the party con gistrate in the presence and hearing of the accomplice, who did not fessing only, deny it, Mr. Justice Holroyd held, that these circumstances in the hearing were not evidence against the latter, and said that it had been of an accomso ruled by several of the judges in a similar case which had been plice, who did tried at Chester. Rex v. Appleby, 3 Stark. N.P.C. 33. (a) So riot deny it. in Melen v. Andrews, Mood. & Malk. 336., which was an action for maliciously laying an information against the plaintiff before two magistrates, under stat. 7 & 8 G. 4. c. 30., after the information and the deposition of the defendant Andrews had been read, and it had been shewn on cross-examination that Melen had cross-examined Andrews, and had commented on his evidence, it was proposed for the defendant to inquire of the same witness what Checketts, another party examined on the same occasion, but not a party on this record, had stated ; claiming to be entitled to do so on the ground that it was said in Melen's presence, who had the opportunity of cross-examining the witness, and observing on his testimony; a privilege which he used with reference to Andrews. But J. Parke J. rejected the evidence, and observed, “ I think it is safer to refuse it, and to hold that the deposition of a witness, taken in a judicial proceeding, is not evidence on the ground that the party against whom it is sought to be read was present, and had the opportunity of cross-examining. It clearly would not be admissible against a third person, who merely happened to be present, and who, being a stranger to the matter under investigation, had not the right of interfering; and I think the same rule must apply here. It is true that the plaintiff might have cross-examined, or commented on the testimony; but still, in an investigation of this nature, there is a regularity of proceeding adopted which prevents the party from interposing when and how he pleases, as he would in a common conversation. The same inferences, therefore, cannot be drawn from his silence, or his conduct in this case, which generally may in that of a conversation in

(a) In an action of assault, the defendant offered evidence of what was said by the magistrate before whom the matter had been investigated, in the presence of both plaintiff and defendant; but Best C. J. refused to admit it; and he observed, that what was said by the defendant to the plaintiff was evidence, but not. what was said by a third person ; or if they drew any answer from the plaintiff, that made it evidence: And his lordship said, he remembered Gibbs C. J. making the same distinction : Child v. Grace, 2 Carr. & P. 193. As to when the de clarations of one conspirator are evidence against all his comrades, see tit. To.spiracy, Vol. III. (Criminal Law,) p. 180.

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