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will be immaterial, unless the opposite party have been misled by it, but it ought to be shown that the document admitted and that produced are the same.2

A subsequent chapter on Inspection has been unavoidably anticipated in some measure by these remarks on the admission of documentary evidence; but it has been thought desirable, as far as possible, to classify the different kinds of legal admissions in one chapter.

Finally, it is to be observed that the whole of a statement containing an admission is to be received together. It will not be inadmissible, because portions of it contain hearsay; but the fact will be matter of commentary by the judge to a jury, and he will also remind them that it is their duty to consider the whole statement, although an omission in this respect will not vitiate a verdict, if it appear that the whole admission has been otherwise brought fairly before them.4

The present chapter contains now, it is believed, the fundamental and most practical principles of the law of admissions, as a branch of legal evidence. But there is no part of the law in which the principles are more subtle, and the illustrations more numerous. It is hardly possible to exhaust or reconcile all the decisions; but it has been carefully attempted to select and elucidate such as are practically most important.

1 Field v. Flemming, 5 Dowl. 450. 2 Clay v. Thackrah, 9 C. & P. 47. 3 1 Phill. 309.

4 Beckham v. Osborne, 6 M. & G. 771.

CHAPTER XVI.

ON CONFESSIONS.

As in civil controversies the admissions of parties are received against their makers, so in criminal trials the confession of a prisoner is held to be evidence against him of a very high nature. But since a person charged with a crime may be induced by his situation either to criminate himself untruly, under the influence of excitement and terror, or trusting to a promise of forgiveness by a prosecutor, or other person who may be presumed to have a power of pardoning, it has long been the policy of the criminal law to reject evidence of every confession or statement by a prisoner, which has been made under the pressure of any species of physical or moral duress. Whenever, therefore, at a criminal trial there appears to be ground of reasonable suspicion that a confession of guilt has been elicited from a prisoner by a threat of punishment, in the event of a refusal to confess, or of forgiveness on condition of confessing, the court will inquire strictly into the preliminary and antecedent circumstances of the statement which is to be tendered, and will not receive it unless it appear to have been the free and voluntary declaration of the prisoner. The rule, as now recognised is the following :

XLVII. The statement of a prisoner as to the circumstances of a crime with which he is charged is evidence against himself, unless it have been elicited from [EV.]

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him by a person who had at the time, actually or presumably, power to forgive; and who, in that capacity, induced the prisoner to confess, by holding out to him an offer, or prospect of, forgive

ness.

Such is the existing rule, as confirmed by the latest decisions; but it is right to observe that it must be regarded as still comparatively unsettled, and in a state of transition. There appears to be a growing conviction in the minds of many learned judges that it has been extended too far; and that it has been made the technical instrument of excluding much valuable and unobjectionable evidence. The tendency, therefore, seems to be rather towards a contraction than an extension of the rule; and the latest authorities are remarkable for the strong language in which the judges have reprobated even the principle of it.1

In R. v. Baldry,2 Lord Campbell, C. J. said: "The rule seems to be this :-If there be any worldly advantage held out to the accused to be obtained by confession, or any harm threatened to him if he refuses to confess, any statement made by him in consequence of any such inducement must be rejected. The reason for this rule I take to be, not that the law supposes that what is said after such inducement is false, but that the prisoner may have said something under a bias, and that it is not a purely voluntary confession." And Pollock, C.B. in the same case, said :-"By the law of England every confession to be used against a prisoner must be a voluntary confession. Every inducement held out by a person in authority will render a confession inadmissible; and the cases have gone very far as to who are persons in authority."

Accordingly, a confession will be inadmissible when it has been obtained by any threat or promise of favour

1 See R. v. Baldry, 21 L. J. 130,M. C.

2 Ibid.

held out by a prosecutor or his wife;' by the prisoner's master or mistress when the crime has been committed against either of them, but not otherwise;2 by the attorney of such person in authority; by a constable, or any one acting under a constable; 3 and especially by a magistrate.*

But the inducement must be held out by a person who is in authority, and who has presumably power to forgive. Accordingly, where a maid servant was indicted for child murder, a confession elicited from her by her mistress was held admissible, because the crime was in no way connected with the management of the house, and there was, therefore, no probability that the mistress or her husband would prosecute in it.5 even when a confession is elicited by an inducement held out by a non-resident daughter of a prosecutor, it appears that she is not a person in authority competent to hold out an inducement, and that the confession is admissible.6

So

But if the inducement be made in the presence of a person in authority, such as a prosecutor, or one who is likely to be a prosecutor, who stands by and does not object, his silence is treated as a tacit acquiescence in the inducement, and the confession will be rejected.7

When the inducement is held out by a person who has no authority in the matter, a confession will not be inadmissible. Thus, when a prisoner's neighbours, who were not connected with the prisoner, advised her to tell the truth for the sake of her family, the confession was received.8

When the inducement has been once held out by a person in authority, no subsequent confession to such

1 R. v. Spencer, 7 C. & P. 776.

2 R. v. H. Moore, 21 L. J. 199, M. C.

3 R. v. Enoch, 5 C. & P. 535.

4 R. v. Drew, 8 C. & P. 140.

5 R. v. H. Moore, 21 L. J. 199, M. C.
R. v. Sleeman, 23 L. J. 19, M. C.
18, M. C.

1 R. v. Luckhurst, 23 L. J.
3 R. v. Rowe, R. & R. 153;

R. v. Taylor, 8 C. & P. 733.

person will be admissible, unless it appear clear that the impression, which it was calculated to make, has been removed from the mind of the prisoner. If the judge discovers that a confession has been improperly received, he will strike it from his notes, and direct the jury that it is to have no weight with them.2

Great uncertainty still prevails as to the precise words which are sufficient to exclude a confession. But a confession will generally be excluded if a prisoner be told that it will be better for him if he confess ; or worse for him if he do not confess:3 and the following are instances of inducement where a subsequent confession has been rejected:

"If you do not tell me who your partner was I will commit you to prison."

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"Tell me where the things are, and I will be favourable to you." "95

"If you are guilty, do confess; it will perhaps save your neck; you will have to go to prison; pray tell me did it."

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"If you do not tell me all about it, I will send for a constable."

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"You had better tell all you know." 8

In a recent case at Taunton (Spring Assizes, 1855), Erle, J. held that these last words addressed by a constable to a prisoner did not exclude a subsequent confession; apparently on the ground that the inducement held out no distinct prospect of a temporal benefit. "It would have been better if you had told at first." 9

12 Russ. Cr. 833-5.

2 R. v. Garner, 2 C. & K. 920. 32 East P. C. 659.

R. v. Parratt, 4 C. & P. 570.
5 R. v. Cass, 1 Lea. C. C. 293, n.

6 R. v. Upchurch, R. & M. 465.
7 R. v. Richards, 5 C. & P. 318.
8 6 C. & P. 353.

9 R. v. Walkley, 6 C. & P. 175.

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