Confessions made after a former one unduly obtained. benefit of confessing. The judges were of opinion that the confessions had been properly received, and that the conviction was right; upon the ground, it is understood, that there were no temporal hopes of benefit or forgiveness held out; and that such hopes, if referrible merely to a future state of existence, are not within the principle on which the rule for excluding confessions obtained by improper influence is founded. And the prisoner was executed, (See also Rex v. Nute, infrà.) If a confession has been obtained from the prisoner by undue means, any statement afterwards made by him under the influence of that confession cannot be admitted as evidence: 2 East, P. C. c. 16. § 94. p. 658. Rex v. White, 1 Phil. Ev. 104. In the case of Rex v. Sarah Nute (MS. C. C. R.), the prisoner was suspected of setting fire to an outhouse; her mistress pressed her to confess, and told her among other things, if she would repent and confess, God would forgive her, but she concealed from her that she would not forgive her herself: she confessed. The next day another person in her mistress's sight, though out of her hearing, told her, her mistress said she had confessed, and drew from her a second confession. Ld. Eldon C.J. (C.P.) allowed the confessions in evidence, and the prisoner was convicted. The jury, on having the confessions put to them, said they thought the first confession made under a hope of favour here, and the second under the influence of having made the first. On a case reserved, the judges held these points were not for the jury, but if Ld. Eldon agreed with the jury, which he did, the confessions were not receivable; but many of them thought the expressions not calculated to raise hope of favour here, and if not, the confessions were evidence. The King v. Sexton, MS. The prisoner, with two others, was tried before Mr. Justice Best, at the Summer assizes for the city of Norwich 1822, for burglary. Whilst the prisoner was in custody be 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." Two glasses of gin were given to him, and he made a confession of his guilt. The officer left the prisoner, and afterwards wrote down from recollection what the pri soner said to him. What the officer wrote was read over to the pri soner before the committing magistrate, who told the prisoner that the offence imputed to him affected his life, and that a confession might do him harm. The prisoner said, that what had been read to him was the truth, and signed the paper.- Best J. There are two objections to the admissibility of this evidence. The confession was very improperly obtained by the officer. (See ante, p. 1081, and note (a).) Police officers must not be permitted to tamper with pri soners to induce them to make confessions; no kind of tampering is so dangerous as the giving them spirituous liquors. Had the magistrate known that the officer had given the prisoner gin, he would, no doubt, have told the prisoner that what he had already said could not be given in evidence against him, and that it was for him to consider whether he would make a second confession. If the prisoner had been told this, what he afterwards said would be evidence against him; but for want of this information, he might think that he could not make his case worse than he had already made it, and under this impression might sign the confes sion before the magistrate. If a confession so obtained were al 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 acknowledged his guilt, it was too late to retract. Rex v. Howes, 6 C. & P. 404. Confessions elicited by questions. On examination as witness on compulsory pro cess. Examination on oath of party charged not admissible. It has been said that a prisoner ought not to be questioned by a magistrate; and in the case of Rex v. Wilson, Holt, N. P. C. 597. cor. Richards C. B. (see tit. Examination, 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 Evidence, 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 taken before the committing magistrate was admissible, though it appeared 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, was held rightly received. Rex v. Silvester Thornton, 1 Ry. & Mood. 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 prosecution, to prove what had been said by the defendant in his examination before a committee of the house of commons, which the defendant had been compelled to attend; and on the part of the defendant it was objected, that since this statement had been made under a compulsory process from the House of Commons, and under the pain of incurring punishment as for a contempt of the house, the declarations were not voluntary, and could not be admitted for the purpose of criminating the defendant; but Abbott J. overruled the objection and admitted the evidence. So in Rer v. Walker (cited by Gurney B. in 6 C. & P. 162.), on an indictment for forging a will, an affidavit was given in evidence which had been made by one of the prisoners in a suit in Doctors' Commons, and the prisoner was convicted and executed. And where a prisoner had been examined upon oath, on a charge against another person, Parke J. received evidence of that examination, as a confession, observing, that upon that, as upon every other occasion, the prisoner might have refused to answer any question having a tendency to expose him to a criminal charge; and not having done so, his examination was evidence against him. Rex v. Howarth, Greenwood's Col. Stat. 138. So in Rex v. Tubby, 5 C. & P. 530Vaughan B. admitted in evidence a statement made by the pri soner on oath, at a time when he was not under suspicion. So if a witness answers questions to which he might have demurred as subjecting him to penalties, his answers may be used against him for all legal purposes; and therefore in an action on 5 G. 2. c. 30. § 21., the defendant's examination before the commissioners was allowed to be given in evidence, to shew that by his own confession he had concealed the property of the bankrupt. Smith v. Beadnell, 1 Campb. 30. (See also Stockfleth v. De Tastet, 4 Campb. 10.) But the account given by a prisoner charged as such before a magistrate ought not to be upon oath; and if the prisoner has been sworn, his statement cannot be received. Rex v. Smith, 1 Stark. N. P. C. 242. (See this case and the law as to examinations by ma gistrates generally, tit. Examination, Vol. III. (Criminal Law,) p.208.) 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 mistake being discovered, the deposition, which had been commenced, 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 conclusion 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.) O. 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 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 evi Acts done in a confession. dence, he should direct an acquittal; unless the fact itself proved So it has been determined, after consideration by all the judges, consequence of that although confessions improperly obtained cannot be received 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, 1 Leach. 265. Declarations accompanying such acts. And from a decision in a late case, Rex v. Griffin, Russ. & Ry. C. C. R. 151., it should seem that what the prisoner says, at the 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 5l., and the other a Reading bank note for the like sum. The prosecutor told the prisoner he had better confess. Mr. Justice Chambre held, that although the pro secutor could not be allowed to prove a confession made after this admonition, he might be permitted to give evidence that the pri soner brought to him a guinea and a 51. Reading bank note, which he gave up to the prosecutor as the guinea and one of the notes that had been stolen from him. The note thus produced the prosecutor 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. Moc donald C.B., Heath J., Grose J., Chambre J., and Wood B., agreed with Mr. Justice Chambre in thinking the conviction right and the Not admissible, evidence admissible. (a) But where a prisoner was indicted for lar ceny, and had been induced by a promise from the prosecutor to 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 de livered it; that person, however, denied knowing any thing about except when confi. med. (a) Lawrence and Le Blanc Js. were of a contrary opinion, that the production of the 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 Rex v. Jones, Russ. & Ry. C. C. R. 153. antè, p. 1081.) |