it is no ground for excluding a confession, that it was induced by the admonitions of a clergyman as to the religious duty of confession; for such admonitions could scarcely tend to produce falsehood, the danger of which is the only reason for excluding confessions at all; and the hopes and fears which the law contemplates, are hopes of temporal advantage, and fears of punishment in this world, not considerations relating to pardon or suffering in another state of being (z).

And discoveries made, or acts done, in consequence of a confession unduly obtained, may always be given in evidence, with so much of the prisoner's statement as led to those discoveries or acts, without his acknowledgment of guilt (a). Thus where a prisoner's statement was inadmissible in evidence, but described a lantern as being in a particular place, or stolen property to be in the sacking of his bed, which proved to be fact, it was held that a witness might be examined whether the prisoner had said anything about the lantern, and whether in consequence thereof it was searched for and found (b); for declarations of an accused accompanying his acts are evidence, though inadmissible as a confession (c). A letter given to the gaoler by a prisoner to put into the post for his father, has been received as evidence against him (d); but the practice of obtaining evidence in such a manner is open to observation.

Confessions only Evidence against Party confessing; Exception.] -Confessions, oral or written, are only evidence against the party confessing, not against others indicted with him (e), unless they were present

many applications of prosecutor's relatives and neighbours, amounting to threats and promises, was held not receivable. In R. v. Wild (1835), id. 452, a person wholly unauthorized called on a party who was just arrested for murder, to kneel down by his side, and tell him the truth. What he said was held admissible, but the mode in which it was obtained disapproved.

But, in Reg. v. Sarah Taylor, 8 C. & P. 733 (1839), Patteson, J.-It is the opinion of the judges that evidence of any confession is receivable, unless some inducement has been held out by some person in office or authority, ["Office" applies to magistrates, gaolers, constables, &c.; "authority," to parties having power over prisoner, as master, &c.]

L.'s house had been on fire. Prisoner, a female servant of L., was sent for into the parlour, where W., a person not in office or authority, said to pri

soner, in the presence of the wife of L., "You had better tell how you did it." She made an answer;-but it was rejected by Patteson, J., because Mrs. L., prosecutor's wife and prisoner's mistress, was present; and, as she expressed no dissent, must be taken to have sanctioned the inducement, which inducement must be taken as if it had been held out by a person in authority over the prisoner. S. C.

(2) R. v. Gilham, 1 Mood. C. C. R. 186; R. v. Clewes, 4 C. & P. 221.

(a) Warwickshall's case, 1 Leach, 265; and see 2 Stark. Ev. 27, 2nd ed. R. v. Jenkins, R. & Ry. 492.

(b) Warwickshall's case; R. v. Gould, 9 C. & P. 364.

(c) R. v. Griffin, R. & Ry. 151, see 2 Stark. Ev. (2nd ed.) 28.

(d) R. v. Derrington, 2 C. & P. 418. (e) 1 Hale, 585; 2 Hawk. c. 46, s. 3; but a letter from a prisoner read as a confession, must be read without omis

when he made his statement, and by any word, or act, may be fairly considered as expressing assent to its truth (ƒ). For the mere silence of a party charged with an offence, while another person making a confession in his hearing implicates him as a sharer in it, does not make that confession evidence against him (f); as it is not to be presumed that a prisoner, in the presence of a magistrate, would dare to interrupt the person under examination as he might have done in ordinary conversation (ƒ); nor does it seem that the conviction of a principal, founded on a confession made by him in the presence of a party afterwards indicted as accessory after the fact, can be evidence against the latter, to establish per se that that conviction of the principal was proper on the merits, or to prove more than the fact of that conviction (g).

Whole Statement or Conversation must be proved.]-The prisoner is always entitled to have the whole of any paper produced against him, and the whole of any conversation, to part of which the prosecutor examines, submitted to the jury (h). And though the prosecutor is at liberty to show that any part of the statement so made is false, either by direct proof, or by showing facts with which it is incompatible, yet, if there be nothing to impugn it in the case, the jury ought to give weight to the whole, and acquit, if its statement so adduced warrants such acquittal (i).

SECTION VIII.

OF CONFINING EVIDENCE TO A SINGLE FELONY, viz. ELECTION BY PROSECUTOR.

CONFUSION has frequently arisen from want of a clear understanding

sions, though it mention the names of the other prisoners, R. v. Fletcher, 4 C. & P. 250; R. v. Clewes, id. 225. So a witness who speaks to a conversation, in which the prisoner said something which implicates another prisoner, he must not omit the name of that other prisoner, but must give the conversation exactly as it occurred, R. v. Hearne and others, id. 215; R. v. Walkley, 6 C. & P. 175. In both cases the judge will tell the jury that the letter, or the declaration of the one prisoner, is not evidence against any one but himself.

This rule prevails, even though the

prisoner might have cross-examined. Per J. Parke, J., Melen v. Andrews, M. & Malk. 336, 2 C. & P. 193, S. C.

(f) R. v. Appleby, 3 Stark. C. N. P. 33, per Holroyd, J.; Kelynge, Resol. 5, in R. v. Tong, p. 17, 18; Gilb. Ev. 124. See R. v. Hevey, 1 Leach, 235; Child v. Grose, 3 C. & P. 193; Finden v. Westlake, M. & Malk. 461.

(g) See by twelve judges in R. v. Turner and others, 1 Lewin's Crown R. 119; 1 Mood. C. C. 347, S. C.; R. v. Thomas Reilly, 1 Leach, 454, note.

(h) The Queen's case, 2 Brod. & Bing.

297.

(i) R. v. Jones, 2 C. & P. 630.

of the practice of calling on the prosecutor, who has preferred various charges of felony, to elect that precise charge on which he will proceed, and offenders have sometimes altogether escaped punishment, from the mere circumstance that they have committed several offences so connected, that it was impossible entirely to sever one from the others. It is, therefore, important to ascertain precisely what the rule is, and in what manner it ought to be applied in practice. The only rule of law, strictly speaking, on this subject, is, that all evidence must be relevant to the issue; and, therefore, it is not competent to the prosecutor to blacken the general character of the prisoner by showing that he committed a crime for which he is not indicted (k), and which forms no part of the transaction which is the subject of inquiry.

Election by Prosecutor of one of several Felonies charged.]—We have seen that, in point of law, the joinder of several felonies in one indictment is not liable to objection; and, in fact, every count purports on the face of it to contain a distinct charge (7); however, in trials for felonies, as soon as it distinctly appears from the prosecutor's opening, or at any other part of the trial, that the matters charged constitute technically or actually separate felonies (m), it has been the practice for judges, in their discretion (n), to confine the prosecutor's evidence to a single transaction, lest the prisoner should be surprised or embarrassed in his defence by a variety of charges. But the principle on which this practice rests is entirely forgotten, when this discretion of the court is applied to prevent the full proof of one connected transaction involving the felony charged, because in such transaction another felony is involved, which must also appear in proof if the whole transaction is sifted. Accordingly, the better considered and more recent decisions all show that the prosecutor may prove everything necessary to elucidate a single charge, although in so doing he must show other felonies as a medium of proof. Thus, where the prosecutor, suspecting the prisoner, had put marked money into his till, and caused him to be watched; the prosecutor was suffered to prove several visits to the till by the prisoner, several inspections of the till consequent upon those visits, and the several results of those inspections, viz. that the money was each time reduced. It was objected that the prosecutor should have been confined to proof of a single felony. But the court of king's bench refused to stay the judgment on that ground, saying that the judge had a discretion to allow evidence of several felonies when they formed part of one

(k) See R. v. Edwards, post. (1) Ante, p. 190.

(m) R. v. Dunn, 1 Mood. C. C. 146. (n) Seé R. v. Galloway, p. id. 334.

transaction (o); and Mr. Justice Holroyd mentioned a case (p), in which, at a trial for robbery effected by a threat of a shocking accusation, he allowed evidence of an attempt by the prisoner at another time to obtain other property of the prosecutor; and the judges, on the point being stated to them, agreed that he was warranted in receiving the proof. Evidence even of three distinct burglaries, when necessary to the history of one, has been received, and the admission of the proof had the high sanction of Lord Ellenborough's approval (q). And where a number of articles are found in the prisoner's possession, the mere probability that he stole them at different times, is no ground for requiring the prosecutor to confine his evidence to one of them, if nothing shows that they might not have been stolen at once (r). And though, on an indictment for a felonious receiving, if it distinctly appear that articles were received at different times, the prosecutor may be required to elect on which act of receiving he will found his case, he may still give evidence of the other receivings as proof of guilty knowledge (s).

The prosecutor may, as it seems, be called on to make this election, at any part of the trial; but if the judge refuse the prisoner's request that he may do so, it will not invalidate the conviction. This was the opinion of all the judges in a case where the same parties were charged in one count as principals in larceny, and in another as receivers. though they were equally divided in opinion whether or not, in point of discretion, the prosecutor should have been put to his election (t).

More than one Indictment against the same Party.]—Again, where a person was separately indicted for offences of a nature totally distinct, as shooting at a keeper, and night poaching, the prosecutor was not put to his election to abandon either indictment; the evidence was received at the trial of the latter without directing abandonment of, or acquittal on, either (u). So where the subject-matter of one untried indictment was material to be proved as part of the facts of another (x). In one case, where the very corpus delicti, for which an outstanding indictment was found, e. g. stealing a coat of a gamekeeper, was pro

(0) R. v. Ellis, 6 B. & C. 145; 9 D. & R. 174, S. C.; and are so much mixed as not to be separated without inconvenience, Reg. v. Hinley, 2 M. & Rob. 524, Maule, J.

(p) R. v. Egerton, R. & Ry. 375. (q) R. v. Wylie, 1 New R. 91. In R. v. Trueman, 8 C. & P. 727, there were five counts in arson. Each charged the firing the house of a different owner. Evidence that the five houses were in a

posed as part of the proof to corroborate a prosecution pending against the same prisoner for night poaching on the same occasion, the evidence was rejected unless the prosecutor would consent to an acquittal of the larceny (y).

Proving other Utterings of forged Notes, &c. to prove “guilty Knowledge."]-It is now completely settled that on an indictment for uttering forged notes or counterfeit coin, the prosecutor may give evidence of other utterings of similar notes or coin, though they are not charged on the record, as evidence of guilty knowledge (z). It is reported, indeed, that in one instance, Vaughan, B., refused to admit evidence of an uttering for this purpose, it being the subject of a distinct indictment (a); but in another case, the same learned judge allowed the evidence to be given, on the counsel for the prosecution abandoning the other indictment, though the prisoner had pleaded to it at the time, and the jury were sworn to try it (b). This interposition must be regarded as a mere exercise of judicial discretion; for it is impossible to point out any rule of law on which the evidence could be rejected.

The practice of confining the evidence to a single transaction, is limited to felonies. In misdemeanours, several distinct offences, as assaults and libels, if charged separately in the indictment, may all be proved at the trial (c).

A jury is not to be charged to inquire concerning a previous conviction of the prisoner, nor shall any statement of it, though part of the indictment, be read to them, till after they have convicted him of the charge before them; except when evidence to his character is given (d).

(y) R. v. Westwood, 4 C. & P. 447; but the authority of this case was denied in R. v. Edwards, Berks Assizes, 26 Feb. 1839, by Patteson, J., stating the opinions of the other judges, MS. Tyr.

(z) R. v. Ball, R. & Ry. 132.

(a) R. v. Smith, 2 C. & P. 633. Denied by Patteson, J., as in note (m); and see R. v. Page, Shrewsbury Summ. Ass. 1837, Lord Abinger.

(b) R. v. Moss, Hereford Summer Assizes, 1827.-In a subsequent case at Stafford, the same learned judge proposed to reserve the point; but the evidence was not pressed, and the prisoners were convicted without it. On that occasion, it was also contended that the prosecuting counsel could not abandon the indictment charging the uttering

which he purposed to prove; and the learned judge proposed to reserve this point in case the evidence should be pressed, and the prisoner's counsel persist in his objection. Supposing the doctrine carried to this extent, the greatest inconvenience would follow; for either the examining magistrate must take on himself to decide on which case of uttering, perhaps out of several, the prisoner must ultimately be tried; or he must bind over persons to prosecute, who by the act of preferring indictments in obedience to their recognizance, would be actually affording the prisoner the certain means of escape, by striking out all evidence of his guilty knowledge.

(c) Ante, p. 190; 2 Campb. 132. (d) Ante, p. 494.