insured against fire, and upon which a memorandum was indorsed stating, that the goods insured had been removed from the house described in the policy to another house mentioned in the memorandum. In this house, so mentioned in the memorandum, the prisoner was charged with having committed the felony. The policy was properly stamped, but the memorandum had no stamp; and upon this circumstance, an objection was taken on behalf of the prisoner, that it was essentially necessary to show, in support of the charge, that there subsisted a legal effective contract; and that, by the express provisions of the stamp acts, the memorandum in question, not being stamped, could not be given in evidence, or be good or available in any manner whatever. The point being reserved for the consideration of the twelve Judges, was argued before them; and the conviction was held to be wrong.(g) As to other points repecting the proof and effect of public and private documents, since they are of rare occurrence in criminal proceedings, it is thought more advisible to refer the reader to the general Treatises on the Law of Evidence, than to encumber this work with any notice of them. (q) Gillson's case, 2 Leach, 1007. Russ. & Ry. C. C. R. 138. Ante, p. 567. Lord Ellenborough, Mansfield, C. J., Wood, B., Grose, J., and Heath, J., were of opinion the conviction was right. The Lord Chief Baron, Thompson, B., Lawrence, J., Le Blanc, J., Chambre, J., and Graham, B., were of the contrary opinion. CHAPTER THE FOURTH. OF CONFESSIONS AND ADMISSIONS.-OF EXAMINATIONS BEFORE MAGISTRATES.-AND OF DEPOSITIONS. Confessions sufficient for conviction without proof aliunde. SECTION L Of Confessions and Admissions. 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 magistrate, 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. (a) And the highest authorities have (a) Gilb. Ev. 123. Lambe's case, 2 Leach, 552, 4th edition. Mr. J. Blackstone, and Mr. J. 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, promises of favour, or menaces, seldom remembered accurately, or reported with precision; and incapable in their nature of being disproved by other negative evidence." A distinction may be properly made in the weight to be attached to confessions. If a confession be reduced into writing, either by the prisoner, or by some one else, and read over to him, and it be clearly shown that the confession was the spontaneous and voluntary act of the prisoner, such a confession would be entitled to great consideration. But if a confession were proved by a witness, and rested upon his capability of understanding what was said by the prisoner, his competency to remember the very words used, and his fidelity and accuracy in relating them to the jury, it ought to be received with very great caution. "For," as has been well observed, (Greenleaf's Evid. 247) "besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear, to make an untrue confession. The zeal, too, which so generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition in the persons engaged in pursuit of evidence to rely on slight grounds of suspicion, which are exaggerated into sufficient proof, together with the character of persons necessarily called as witnesses in cases of secret and atrocious crime, all tend to impair the value of this kind of evidence, and sometimes lead to its rejection where in civil actions it would have been received. The weighty observation of Mr. J. Foster is also to be kept in mind that "this evidence is not in the ordinary course of things, to be disproved by that sort of nega tive evidence by which the proof of plain facts may be and often is confronted." Fost. 243. Mr. B. Parke has on several now established, that a confession, if duly made, and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence aliunde. (b) Occasions observed that "too great weight ought not to be attached to evidence of what a party has been supposed to have said; as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say." Earle v. Picken, 5 C. & P. 542, note. So where one of two witnesses called to prove the same statement of the prisoner to his wife, said that the words were, "keep yourself to yourself, and don't marry again;" and the other, "keep yourself to yourself, and keep your own counsel." Alderson, B., said, "One of these expressions is widely different from the other. It shows how little reliance ought to be placed on such evidence." Rex v. Simons, 6 C. & P. 540. 2 (b) Wheeling's case, in note 1 Leach, 311. Rex v. Eldridge, Russ. & Ry. C.C.R. 440. Rex v. Falkner, ibid., 481. In Greenleaf's Evid. 251, it is observed, "in each of the English cases usually cited in favour of the sufficiency of this evidence, there was some corroborating circumstance. Wheeling's case seems to be an exception, but it is too briefly reported to be relied on. In the United States the prisoner's confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction; and this opinion certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases, and it seems countenanced by approved writers on this branch of the law," citing Guild's case, 5 Halst. 163, 185. Long's case, 1 Hayw. 524 (455). Hawk. P. C. c. 46, s. 36. The whole statement in 1 Leach, 311, of Wheeling's case is that" it was determined that a prisoner may be convicted on his own confession, when proved by legal testimony, although it is totally uncorroborated by any other evidence." This statement may mean that where the commission of a felony is proved by independent evidence, a prisoner may be convicted on his confession, though there be nothing to corroborate that confession as to his being the party who committed such felony; and the manner in which Wheeling's case is introduced rather leads to the inference that that is the meaning of the statement. In Rex v. Eldridge, on an indictment for stealing a mare, it appeared that the mare was seen on the 9th of October in the afternoon in the possession of one of the prosecutor's servants, who was taking it towards one of his fields, but neither that servant nor the prosecutor were called as witnesses: the mare was not found in the prosecutor's possession on the 11th of October. The prisoner had the mare in his possession on the 13th, and sold her under her value. A full confession before a magistrate was proved, and the prisoner convicted. The Judges held "that there was sufficient evidence to confirm the confession." It is to be observed, that independently of the confession the case was complete, with the exception of proving that the mare was put in the prosecutor's field by his servant. See Rex v. Yend, 6 C. & P. 176, ante, p. 122, and Rex v. Fellows, ante, p. 123. In Rex v. Falkner and Bond, on an indictment for robbing one Halliday, he was called on his recognizances but did not appear, and the prisoner, Falkner, had been desirous to send a message to Halliday to keep him from appearing. The only other evidence was that Bond had confessed the offence to the constable who apprehended him, and that both the prisoners, on hearing the depositions read over to them, which contained the charge, had admitted that they were guilty; the depositions charged the prisoners with robbing Halliday of certain quantities of copper. The prisoner was found guilty, and the Judges held the conviction right, but no reason is stated for the decision. If the depositions were read in evidence at the trial, as they might be if the prosecutor was kept away by means of the prisoners, the case does not seem in any degree to support the position in the text. In Rex v. White and Langdon, Russ. & Ry. 508, on an indictment for stealing oats, the prosecutor proved that he had sometimes more, sometimes less than 300 quarters of oats in his granary, the door of which had been fastened with a padlock, and was found by the prosecutor unhinged and drawn back, on the 24th of December. At half-past two o'clock that morning, two men were seen by a witness coming from the prosecutor's yard, each of them having a sack on his back, but the witness did not say that the men were the prisoners. White on the same day was in possession of some bags of oats, of the same kind as those in the granary of the prosecutor, who could not, however, swear that he had lost any of his oats; each prisoner made an explicit confession of the offence which were proved, and the prisoners found guilty; and the Judges held the conviction right. In Rex v. Tippet, Russ. & Ry. 509, which was an indictment for stealing oats from the same prosecutor, the same evidence was given as in the preceding case, with the addition that the prisoner was under ostler in the prosecutor's stables, and a confession by the prisoner of his having stolen the oats in company with the prisoners in the preceding case was put in, and the prisoner convicted; and seven of the learned Judges (all who met on the occasion) were of opinion that the conviction was right, as there was not only the Must be free But a confession, in order to be admissible, must be free and and voluntary. 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) "The object of the rule relating to the exclusion of confessions is to exclude all confessions which may have been procured by the prisoner being led to suppose that it will be better for him to admit himself to be guilty of an offence, which he really never committed." (d) In determining, therefore, whether a confession be admissible or not, "the only proper question is, whether the inducement held out to the prisoner was calculated to make his confession an untrue one." (e) A confession can never be received in evidence, where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and, therefore, excludes the declaration, if any degree of influence has been exerted. (f) It is a question for the Court, and not for the jury, to decide whether, under the particular circumstances of the case, the confession be admissible. (g) confession but the evidence of the prosecu- without any proof of the person being killed? I doubt whether he could." (c) It is a mistaken notion that evidence of confessions obtained by promises or threats, are 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, that no credit ought to be given to it; and therefore it is rejected. Warickshall's case, cor. Eyre & Nares, Barons, 1 Leach, 263. Three men were tried and convicted for the murder of Mr. Harrison, of Campden, in Gloucestershire. One 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). (d) Per Littledale, J., in Rex v. Court, 7 C. & P. 486, post, p. 846. (e) Per Coleridge, J., in Rex v. Thomas, 7 C. & P. 345, post, p. 845. (f) 2 Stark. Ev. 36. (9) Rex v. Nute, post, p. 832. It is submitted, however, that it is a question for the jury whether they believe the witness gives a true account of what the prisoner said, and also whether the prisoner made the statement voluntarily, or was prevailed upon to make it by any inducement used by the witness, although the witness may have denied that he used any inducement what The general principle on which the decisions on this subject seem to have proceeded, seems to be this: that if, under the circumstances, there be reasonable ground for presuming that the disclosure was made under the influence of any promise or threat of a temporal nature, the evidence ought not to be received. (g) As to what shall be considered as a promise, or inducement, Promises and saying to the prisoner that it would be better for him if he did inducements. confess, is sufficient to exclude the confession. (h) So a confession induced by saying, "I am in great distress about my irons; if you will tell me where they are, I will be favourable to you," cannot be given in evidence. (i) Where the prosecutor asked the prisoner, on Jones' case. finding him, for the money he, the prisoner, had taken out of the prosecutor's pack, but before the money was produced said, "he only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased;" upon 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 held, that the evidence was inadmissible. (j) So, where a prisoner being in custody, said to the officer who had Confession by the charge of him, "If you will give me a glass of gin, I will tell prisoner when you all about it," and two glasses of gin were given to him, and he drunk. made a confession of his guilt, Best, J., considered it as very improperly obtained, and inadmissible in evidence. (k) But where a prisoner made a statement to a constable in whose custody he was, but he was drunk at the time; and it was imputed that the constable had given him liquor to cause him to be so, and it was objected that what the prisoner said under such circumstances was not admissible: Coleridge, J., said, "I am of opinion, that a statement being made by a prisoner while he was drunk, is not, therefore, inadmissible against him; and that to render a confession inadmissible, it must either be obtained by hope or fear. This is matter of observation for me, upon the weight that ought to attach to this statement, when it is considered by the jury." () (h) 2 East, P. C. c. 16, s. 94, p. 659. (i) Cass's case, 1 Leach, 293, note (a). (j) Jones's case, Russ. & Ry. C. C. R. 152, but see Rex v. Griffin, ibid., 151, post, p. 863. (k) Rex v. Sexton, MS. Chetw. Burn. tit. Confession, p. 1086, Doyl. & Wms. The authority of this case has been qustioned in several books. Deac. Cr. Law, 424, Rosc. Cr. Evid. 37, Joy, 17, and it seems very justly. In the first place the offer to confess was volunteered on the part of the prisoner; secondly, there was no promise or threat at all used by the constable, nor was the prisoner in any way led to believe that by confessing he would escape from the charge, or be let out of custody; thirdly, there was no inducement to state anything but the truth. In 1 Burn's J. Doyl. & Wms. 1081, notc (a), it is said, "the authority of this decision seems doubtful; for it is not every hope of favour (1) Rex v. Spilsbury, 7 C. & P. 187. In a note to this case, 1 Phill. Ev. 465, it is observed, "The facts of the case as reported do not warrant the marginal note, which is as follows:- Semble, if a constable give him (the prisoner) liquor to make him drunk, in the hope of his saying something, that will not render the statement inadmissible, but it will be matter of observation for the Judge in his summing up.' It is not to be inferred from the case that a confession-so immorally, not to say criminally, extorted-would be received." The principle, however, on which the decision turned would seem to warrant the marginal note, as the mere giving liquor without any inducement in words could not operate as an inducement either by exciting hope of escape or fear of punishment. It is to be observed, also, that in all the cases where confessions have been excluded there has been an anticipation |