CHAPTER THE FOURTH.

OF CONFESSIONS AND ADMISSIONS, p. 477.— OF STATEMENTS OF THE ACCUSED BEFORE MAGISTRATES, p. 538 — AND OF DEPOSITIONS, p. 549.

SEC. I.

Of Confessions and Admissions.1

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)

A confession, if duly made and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence aliunde. (b)

A confession is obviously not conclusive evidence against a prisoner, and when it involves matter of law as well as matter of fact, is to be received with more than usual caution. Thus on an indictment for setting fire to a ship with intent to defraud Greenfell and Eddy, being part-owners of the ship, a declaration of the prisoner that Greenfell and Eddy were part-owners was received in evidence; but it was objected that the bill of sale, under which Greenfell and Eddy claimed, was invalid in point of law; and it was held that, if by reason of the invalidity of the document evidencing the transfer of their shares, their legal title to them could not be established, the declaration of the prisoner could not be relied upon for that purpose. (c) So where, on an indictment for bigamy, the prisoner had confessed the first marriage, but it appeared that the marriage was void for want of the consent of the guardian of the woman, the prisoner was acquitted. (d)

(a) Confessions must be Free and Voluntary.

But a confession, in order to be admissible, must be free and 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, (e) because

(b) Wheeling's case, in note, 1 Leach, 311. R. v. Eldridge, R. & R. C. C. R. 440. R. v. Falkner, ibid. 481. R. v. White and Langdon, R. & R. 508. R. v. Tippit, R. & R. 509. R. v. Burton, Dears. C. Č. 282. R. v. Tuffs, 5 C. & P. 167. In R. v. Edgar, Monmouth Spr. Ass. 1831, MSS. C. S. G., the prisoner was indicted for obtaining money of a friendly society by false pretences; the rules of the society had not been enrolled, but the prisoner, who was a mem ber of the society, had acted under them, and it was contended that he had thereby admitted their validity, and the position in the text was cited as a stronger decision; on which Patteson, J., said Could a man be convicted of murder on his confession alone, without any proof of the person being killed? I doubt whether he could.' In R. e. Sutcliffe, 4 Cox, C. C. 270, where a robbery had been committed on a moonlight night, Cresswell, J., left the case to the jury on confessions of the prisoner, though the prosecutor swore the prisoner was not one of the men who robbed him. The remark on this case is that the prosecutor might he in error; the prisoner must know whether he was guilty or not. In Ireland on the authority of these cases it has been held that a confession although extra judicial is sufficient without independent proof of the crime to sustain a conviction. R. v. Sullivan, 16 Cox, C. C. 347. It seems doubtful

whether in England the mere confession, if extra judicial, by a prisoner would be sufficient in itself to warrant a conviction. In the United States the prisoner's confession when the corpus delicti is not otherwise proved, has been held insufficient for his conviction. Greenleaf's Evid. 251, Guild's case, 5 Halst. 163, 185. Long's case, 1 Hayw. 524 (455). 2 Hawk. P. C. c. 46, s. 36.

(c) R. v. Philp, R. & M. C. C. R. 263. (d) Anonymous, 3 Stark. Ev. 894, note (m), cor. Le Blanc, J.

(e) 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, Eyre and Nares, BB., 1 Leach, 263. Three men were tried and convicted for the murder of Mr. Harrison, of Campden, in Gloucestershire. One of them, under

under such circumstances the party may have been influenced to say what is not true, and the supposed confession cannot safely be acted upon. (ƒ)

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. (g) 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.' (h)

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. (i) 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. (j)

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. (i)

There is a simple test by which the admissibility of a confession may be decided. Is it proved affirmatively by the prosecution that the confession was free and voluntary? that is, was it preceded by any inducement to make a statement held out by a person in authority? If so, and the inducement has not clearly been removed before the statement was made, evidence of that statement is inadmissible. (k)

(b) What Promises and Inducements will exclude Confessions.

As to what shall be considered as a promise or inducement, saying to the prisoner that it would be better for him if he did confess is sufficient to exclude the confession. (kk) Where, on an indictment

the 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).

(f) Per Lord Campbell, C. J., R. v. Scott, D. & B. 47.

(g) Per Littledale, J., in R. v. Court, 7 C. & P. 486, post, p. 480. But in R. v. Baldry, 2 Den. C. C. 430, Lord Campbell, C. J., said, 'The reason is, not that the law supposes that the statement will be false, but that the prisoner has made the confession under a bias, and that, therefore, it would be better not to submit it to the jury.' But see Lord Campbell's dictum, R. v. Scott, supra.

for robbery, a witness stated that he had said to one of the prisoners, "You had better split, and not suffer for all of them,' the statement of the prisoner was rejected. (1) One of a firm who employed the prisoner, having called him up into the private counting-house of the firm, in the presence of another of the firm and two officers of police, said, I think it is right that I should tell you that, besides being in the presence of my brother and myself, you are in the presence of two officers of the police; and I should advise you that to any question that may be put to you you will answer truthfully, so that if you have committed a fault you may not add to it by stating what is untrue;' and having shewn a letter to him which he denied to have written, added, 'Take care; we know more than you think we know.' The prisoner thereupon made a confession. Held that these words did not import an inducement or threat, and that evidence of the confession was admissible. (m)

If a person advise a prisoner to be sure to tell the truth, and he then makes a statement, such statement is admissible. on the ground that such advice cannot be supposed to induce the prisoner to confess that he is guilty of a crime of which he is really innocent. (n)

Upon an indictment for murder, it appeared that the prisoner, who was a boy of the age of fourteen, was taken into custody by Mr. Wragg, not a constable, and on the same night was in the parlour of the inn, to which he was taken; several persons, neighbours, but no constable, were in the room, and had been asking him questions about the children, whom he was charged with drowning. One Clark, who was present when Wragg took the prisoner up, and who was not a constable, stated, 'I told him to kneel down and tell the truth. Wragg took him into Adams' parlour, and began to question him how the children came to get into the pit; whether they fell in, or were put in; he said he should not tell anything about it. Wragg asked him if he would tell any one else, if he would go out of the parlour; the prisoner said nothing; Wragg then went out. I said to the prisoner, "Now kneel you down by the side of me, and tell me the truth." I believe this was the first thing. He did kneel down. I said, I was going to ask him a very serious question, and I hoped he would tell me the truth in the presence of the Almighty.

(1) R. v. Thomas, 6 C. & P. 353, Patteson, J. By such a statement as that made by the witness the prisoner might be induced to suppose that he would be more mercifully dealt with if he confessed, and that he might therefore be induced to confess himself guilty of an offence he never committed. See the Reporter's note, ibid. There are many similar cases to the above one: Moody's case, 2 Crawf. & D. C. C. Joy, 12. R. v. Walkley, 6 C. & P. 175. R. v. Mills, 6 C. & P. 146, and MSS. C. S. G. R. v. Shepherd, 7 C. & P. 579. R. v. Kingston, 4 C. & P. 387.

(m) R. v. Jarvis, 37 L. J. M. C. 1, et per Kelly, C. B., As to the words "you had better" referred to in the argument, there are many cases in which those words have occurred, and they seem to have acquired a sort of technical meaning, that they hold out an inducement or threat

within the rule that excludes confessions, under such circumstances. It is sufficient to say that those words have not been used on this occasion; and that the words used appear to me to import advice given on moral grounds, and not to infringe upon the rule of law prohibiting a threat or inducement in these cases.' See R. v. Thompson, post, p. 495.

(n) R. v. Court, 7 C. & P. 486, Littledale, J. R. v. Holmes, 1 C. & K. 248; R. v. Jarvis, 37 L. J. M. C. 1, per Kelly, C. B.; R. v. Sleeman, Dears. Č. C. 249, where the words were, 'Don't run your soul into more sin, but tell the truth,’ and it was held there was no threat or inducement. An exhortation to speak the truth ought not to exclude a confession. See per Erle, J., R. v. Moore, 2 Den. C. C.

522.

I then said, "Did these children fall into the pit?" He said he pushed one in with one foot, and the other with the other, but not purposely.' Mr. Moulden asked him if he had any malice or revenge; he said, No. Subsequently to this, the son of the innkeeper stated that next day the prisoner said he would tell him all about it. He neither promised nor threatened him. The prisoner then made a statement to him, which was given in evidence. Other declarations also were given in evidence. An examination of the prisoner, who could not write, was put in; it began, W. Wild being cautioned, &c., and the evidence being read over to him, said, 'I can give no other account than I have already given,' &c. (o) The prisoner having been found guilty, upon a case reserved as to the admissibility of the evidence, the judges present were unanimous that the confession was strictly admissible, but they much disapproved of the mode in which it was obtained. (p) The mother of a little boy in custody on a charge of attempting to obstruct a railway train, said to him and another little boy in custody also on the same charge, in the presence of the mother of the latter and of the policeman, 'You had better, as good boys, tell the truth,' whereupon both boys confessed. Held, that the confession was admissible. (q)

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. (r)

Where it appeared, on an indictment for larceny, that the prisoner, being in the custody of a constable, the latter said to the prosecutor, You must not use any threat or promise to the prisoner;' and immediately after this the prosecutor said to the prisoner, I should be obliged to you if you would tell us what you know about it; if you will not, we, of course, can do nothing; I shall be glad if you will.' The confession was held inadmissible; Patteson, J., saying, I think this is a distinct promise; what could the prosecutor mean by saying, that if the prisoner would not tell, they could do nothing, but that if the prisoner did tell, they would do something for him?' (s)

(o) The statement is given at length in the report, as well as the statement made to the innkeeper's son, but they are omitted, as nothing turned upon their contents. C. S. G.

(p) R. v. Wild, R. & M. C. C. R. 452. The conviction was affirmed, but the prisoner was transported for life. Lord Denman, C. J., Vaughan, J., Bolland, B., and Bosanquet, J., were not present at the meeting of the judges. The grounds of this decision are not stated in the report; but it should seem that the case may well be supported on the ground that the words addressed to the prisoner had no tendency whatever to induce him to make a false statement, but, on the contrary, were a most solemn adjuration to speak the truth. The decision seems fully warranted by the principle on which R. v. Gilham, post, rests. The decision, however, could hardly be supported on the ground that the inducement was held out by a person without authority, as it was held

out by a person present at the apprehension, and who was acting in concurrence with the party who apprehended him, and they were keeping the prisoner in custody, no constable being present. C. S. G.

(9) R. v. Reeve, 41 L. J. M. C. 92. R. v. Parker, L. & C. 42. But see per Maule, J., in R. v. Garner, 1 Den. C. C. 329, R. v. Baldry, 2 Den. C. C. 430; per Pollock, C. B., R. v. Bale, 11 Cox, C. C.

686.

(r) Cass's case, 1 Leach, 293, note (a). (s) R. v. Partridge, 7 C. & P. 551. Dr. Greenleaf, Evid. 256, after citing this case, and Guild's case, post, p. 497, observes, 'It is extremely difficult to reconcile these and similar cases with the spirit of the rule as expounded by Eyre, C. B., in Warickshall's case, ante, p. 478, note (e); the difference is between confessions made voluntarily, and those "forced from the mind by the flattery of hope, or by the torture of fear." If the party has made his own calculation of the advantages to