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he desires to make any statement, and is duly
warned that, if he does so, it may be given in
evidence at his trial. Any statement then made, be
it in the nature of a confession or otherwise, is
admissible at the trial. If, however, the statement
is a confession, it is desirable that the accused should
also have been warned that he has nothing to hope
from any promise of favour, and nothing to fear
from any threat, which may have been held out to
him to induce him to make such confession. The
evidence given by an accused person on oath at the



preliminary inquiry is always admissible against him
on his trial.

With regard to admissions made in other judicial
proceedings, the general rule is, that any statement
made by a person on oath, when being examined as
a witness, may be afterwards used against him on
his trial on a criminal charge, unless, at the time of
his examination, he objected to answer the questions,
on the ground that the answers would tend to criminate
him, and yet was improperly compelled to answer
them. Thus, statements made on oath before
coroners and before civil tribunals may, in general,
be given in evidence in accordance with this rule.
But this is subject to the special provisions of certain
statutes, such as the Land Transfer Act, 1875, the
Explosive Substances Act, 1883, and the Merchandise
Marks Act, 1887, which expressly prohibit the giving
in evidence on a criminal charge of admissions made
at a former inquiry held under those Acts ; and, in
certain cases, admissions made in bankruptcy pro-
ceedings cannot be given in evidence in subsequent
criminal proceedings, in accordance with the provisions
of the Bankruptcy Act, 1914, s. 166, and section 43 (3)
of the Larceny Act, 1916.

It is, however, in respect of admissions and con-
fessions made extra- judicially, that the greatest care
needs to be exercised in considering whether they
can be received in evidence. All such statements
must be made voluntarily, in order to render them
admissible, whether they be actual confessions of
guilt, or merely admissions or statements which may
tend to the proof of guilt ; and it is incumbent on the
prosecution to satisfy the judge at the trial of the
voluntary nature of the statement, before it can be
admitted in evidence. If a confession proceeds from
remorse, or from a desire to make reparation for a
crime, it is admissible, but if from hope or fear excited


by a person in authority, it is inadmissible. But a
promise or threat which precedes a confession must,
in order to make the confession inadmissible in
evidence, be made by a person in authority, and be
of such a nature as may be presumed to have had
such an effect on the mind of the prisoner as to induce
him to confess. -

A person in authority may be a person holding
some office or position which confers authority upon
him, such as a Justice, or a police officer ; or he may
be a superior, such as the Commanding Officer of a
soldier ; or he and the accused person may be in a
position of special relationship to each other, such
as that of master and servant, or parent and child.
If the confession is made to a person who does not
hold such authority, it will be admissible, notwith-
standing any inducements that may have been held
out by such person. But if such inducements are
made in the mere presence of a person in authority,
and without his dissent, the resultant confession will
be inadmissible ; since it is impossible to say to what
extent the accused person may have been influenced
by the presence of the person in authority. And if
an inducement be offered by a person in authority,
and a confession be subsequently made to a person
not in authority, that also will be inadmissible.

Next we must consider the nature of the induce-
ment. Where it amounts to a mere moral exhorta-
tion, such as : " Be a good girl and tell the truth,"
the confession will not thereby be invalidated ; but
if any hope be held out, such as that of being per-
mitted to turn King's evidence, or of obtaining a
pardon or reward, or of being more leniently dealt
with, or any threat, such as a threat of arrest or such
words as : " You had better tell the truth, or it will
" be tlie worse for j^ou," or if any condition of fear
l)e induced by tlie person in authority, in consequence


of which the confession is made, it will be inadmissible.
The line to be drawn between moral and temporal
inducements is a fine one, to be decided by the circum-
stances of each case. The principles on which the
court will act were fully discussed in the case of
R. V. Thotnpson [1893] 2 Q. B. 12. The question for
determination seems to be, whether the inducement
held out to the prisoner was calculated to make his
confession an untrue one, and whether such induce-
ment was operating upon his mind at the time of the

In dealing with this subject, it will be convenient
to mention shortly the duties of police officers, when
investigatmg crimes, and when arresting persons
suspected of having committed them, in respect of
which the following rules have been laid down by
His Majesty's Judges :—

1. When a police officer is endeavouring to dis-
cover the author of a crime, there is no objection to
his putting questions in respect thereof to any persoij
or persons, whether suspected or not, from whom he
thinks that useful information can be obtained.

2. Whenever a police officer has made up his mind
to charge a person with a crime, he should first caution
such person before asking him any questions, or any
further questions, as the case may be.

3. Persons in custody should not be questioned
without the usual caution being first administered.

4. If the prisoner wishes to volunteer any state-
ment, the usual caution should be administered.

5. The caution to be administered to a prisoner,
when he is formally charged, should be in the follow-
ing words : " Do you wish to say anything in answer
" to the charge ? You are not obliged to say any-
' ■ thing unless you wish to do so ; but whatever you
'' say will be taken down in writing and may be given
'' in evidence." Care should be taken to avoid any

S.C— VOL. IV. 2 c


suggestion that his answers can only be used in evidence
against him, as this may prevent an innocent person
making a statement which might assist to clear him
of the charge.

6. A statement made by a prisoner before there
is time to caution him is not rendered inadmissible
in evidence merely by reason of no caution having
been given ; but in such a case he should be cautioned
as soon as possible.

7. A prisoner making a voluntary statement must
not be cross-examined ; and no questions should be
put to him about it, except for the purpose of removing
ambiguity in what he has actually said.

8. When two or more persons are charged with
the same offence, and statements are taken separately
from the persons charged, the police shoidd not read
these statements to the other persons charged ; but
each of such persons should be furnished by the police
with a copy of such statements, and nothing should
be said or done by the police to invite a reply. If
the person charged desires to make a statement in
reply, the usual caution should be administered.

9. Any statement made in accordance with the
above rules should, whenever possible, be taken down
in writing and signed by the person making it after
it has been read to him, and he has been invited to
make any corrections he may wish.

Where these rules are observed, the statement
made will be admissible in evidence ; but otherwise,
in general, it will not be, though the question must
depend in each case upon the whole of the circum-
stances. The matter was fully discussed in the case
of Ibrahim v. R. [1914] A. C. 599.

Although a statement or confession may for some
reason not be admissible in evidence, any fact that
is ascertained in consequence of such statement or
confession may be proved, if verified.


When a statement or confession is given in evidence,
it must be given in its entirety, and, except in
cases of conspiracy (p. 211), all statements and con-
fessions made by accused persons can only be con-
sidered as evidence against themselves, and not as
against other persons. Thus, when two prisoners
are jointly charged, and statements made by one of
them are given in evidence, which adversely affect
the other, it must be carefully explained to the jury
that such statements must only be considered by them
as against the person making them, and not as against
his fellow prisoner.

Sufficiency of Evidence.

We now have to consider the amount of evidence
necessary to prove a crime. In general, this depends
solely on the provision that it must be such as suffices
in law to prove the necessary ingredients of the offence,
and in fact satisfies the jury beyond reasonable doubt
of the prisoner's guilt, for which purpose in some
cases one witness may be enough, and in others a
large number may be necessary. But in certain cases
the law has specifically provided for a certain minimum
amount of proof. These are : (1) in treason, two
witnesses are necessary to prove the overt acts, though
they may speak to two different overt acts, or to the
same one ; (2) in perjury, the accused cannot be
convicted upon the uncorroborated evidence of one
witness, but one witness may be corroborated either
by the direct evidence of a second witness, or by
material and relevant facts confirming his testimony ;
(3) in blasphemy, two witnesses are necessary ; (4) in
offences against sections 2 or 8 of the Criminal liaw
Amendment Act, 1885, the accused cannot be con-
victed upon the evidence of one witness, unless such
witness be corroborated in some material particular


by evidence implicating the accused ; (5) the un-
sworn evidence of children of tender years must in
all cases be corroborated. Furthermore, on a charge
of rape, corroboration is, in practice, though not in
strict law, always required.

The uncorroborated evidence of an accomplice
is sufficient in law to justify a conviction ; but, in
practice, it has long been deemed essential that his
evidence should be corroborated in some material
part by other evidence ; and judges have been in
the habit of warning juries in the strongest terms of
the danger of accepting the uncorroborated evidence
of an accomplice, and of advising them not to con-
vict upon such evidence. The giving of a warning of
this nature is recognised as now compulsory ; and the
form which it should take, together with the description
of evidence necessary to amount to corroboration,
have been the subject of judicial decision in the case
of R. V. Baskerville [1916] 2 K. B. 658. An accomplice
may shortly be said to be a person concerned with
another in the commission of a crime. Mere sub-
mission, without guilty knowledge, does not, however,
constitute a person an accomplice.

Where it is proposed to call an accomplice on
behalf of the prosecution, it is the practice either
(1) not to include him in the indictment; or (2) to
take his plea of guilty on arraignment or during the
trial ; or (3) to offer no evidence against him and
permit his acquittal; or (4) to enter a nolle prosequi
in respect of him.


{On the subject of evidence generally, the student may consult any
of the recognised text-books, such as Roscne, " The Jmw of Evidence
in Criminal Cases "; Stephen, " Digest of the Imic of Evidence ",• and
Cockle, " Cases and Statutes on Evidenced

The subject is also fully dealt with in Russell, " Crimes and Misde-
meujiors'^ (1th edition), pp. 20.').') 2351, and in Archbold, ''Criminal
Pleading " (2.'j</« rdilion), pp. .337-480


Reference may also he made to the following cases : —
Relevancy :

Makin v. The Attorney -General for New South Wales [18941

A. C. 57 ; 63 L. J. P. C. 41 ; 17 Cox, C. C. 704.
R. V. Bond [1906] 2 K. B. 389 ; 15 L. J. K. B. 693.
Hearsay :

R. V. Saunders [1899] 1 Q. B. 490 ; 68 L. J. Q. B. 296.
R. V. Thomson [1912] 3 K. B. 19 ; 81 L. J. K. B. 892 ; 23
Cox, C. C. 187 ; 76 J. P. 431 ; 28 T. L. R. 478.

In presence of accused :

R. V. Christie [1914] A. C. 545 ; 10 Cr. App. R. 141.
Statement accompanying act :

R. V. Lord George Gordon (1781) 21 St. Tr. 485.

R. V. Hall (1838) 8 C. db P. 358.

R. V. Pook (1871) 13 Cox, C. C. 172, ».

R. V. Edwards (1872) 12 Cox, C. C. 230.

i?. V. Wainwright (1875) 13 Coa;, C. C. 171.
Pari o/ res gestce :

Thompson v. Trevanion (1693) Skinner, 402.

i2. V. Foster (1834) 6 C cfc P. 325.

ie. V. Lunny (1854) 6 Coa;, C. C. iHl.

R. V. Fowkes (1856) Times Newspaper, Sth March.

R. V. Bedingfield (1879) 14 Cox, C. C. 341.

R. V. (?o£Z(^ard (1882) 15 Cox, C. C. 7.

iJ. V. Christie [1914] ^. C. 545 ; 10 Cr. App. R. 141.

Recent complaint (females) :

R. V. Brasier (1777) 1 Leach, 199 ; 1 East, P. C. 443.

i?. V. Lillyman [1896] 2 Q. B. 167 ; 65 L. J. M. C. 195 ;

18 Cox, G. C. 346 ; 74 L. T. 730 ; 60 J. P. 536.
R. V. Osfcorne [1905] 1 K. B. 551 ; 74 L. J. K. B. 311 ;

92 L. T. 393 ; 69 J. P. 189 ; 21 T. L. R. 288.
R. V. i\rorco« [1917] 1 K. B. 347 ; 86 L. J. K.B.I 8; 81 J. P.

123 ; 12 Cr. App. R. 166.
Recent complaint (males) :

R. V. Hoodless (1900) 64 J. P. 282.
Chesney v. Newsholme [1908] P. 301.

Dying declarations :

R. V. Woodcock (1789) 1 Leac/i, 500,

ii. V. PeeZ (1860) 2 F. dh F. 21.

22. V. JenJtins (1869) L. R. 1 C. C. R. 187 ; 38 L. J. M. C.

82 ; 11 Cox, C. C. 250 ; 20 L. T. 372 ; 33 J. P. 452.
R. V. Gloster (1888) 16 Coa;, C. C. 471.
R. V. Pe/Ti/ [1909] 2 J?'. 5. 697 ; 78 L. J. K. B. 1034.


Hearsay {cont.) :

Bodily and mental symptoms :

B. V. Blandy (1752) 18 St. Tr. 1117.
Aveson v. Kinnaird (1805) 6 East, 188.
R. V. Thomson [1912] 3 K. B. 19 ; 81 L. J. K. B. 892 ; 76
J. P. 431 ; 28 T. L. E. 478.

Statements in course of duty :

R. V. Buckley (1873) 13 Cox, C. C. 293.

Mercer v. Denne [1905] 2 Ch. 538 ; 74 L. J. Ch. 723.

i?e Fountaiyie [1909] 2 CA. 382 ; 78 L. J. Ch. 648.

Confessions :
R. V. Thomas (1837) 7 C. d- P. 345.
R. V. Sleeman (1853) Dears 249 ; 23 Z,. J. M. C. 19.
P. V. Mallory (1884) 13 Q. B. D. 33 : 53 L. J. M. C. 134.
P. V. Thompson [1893] 2 (2. P. 12 ; 62 L. J. M. C. 93 ; 17

Cox, C. C. 641.
P. V. Prowm (1903) 68 J. P. 15.
P. V. James (1909) 2 Cr. App. P. 319.
P. V. Stanton (1911) 6 Cr. App. P. 198.
P. V. GodmAo (1912) 76 J. P. 16 ; 28 T. L. R. 3.
Ibrahim v. P. [1914] ^. C. 599 ; 83 L. J. P. C. 185 ; 24

Cox, C. C. 174 ; 30 T. L. P. 383.
P. V. CoZjjjiiJ [1917] 1 K. B. 574 ; 86 L. J. K. B. 459 ; 81 J. P.

135 ; 33 T. L. P. 184.

Corroboration {accomplices) :

P. V. Tate [1908] 2 K. B. 680.

P. V. Willis [1916] 1 Z. P. 933 ; 85 L. J. K. B. 1129 ; 114

L. T. 1047 ; 32 T. L. R. 452 ; 12 Cr. App. P. 44.
P. V. Baskerville [1916] 2 K. B. 658 ; 86 L. J. K. B. 28 ;
12 Cr. App. R. 81.]

( 391 )



At the conclusion of the summing-up, the jurors
proceed to consider their verdict. They are not
permitted to separate until they have returned their
verdict, or have been discharged for failure to agree.
If they are unable to agree without retiring from
the jury-box, they withdraw to a convenient place
appointed for the purpose ; an officer of the court
being sworn to take charge of them, and to suffer no
one to speak to them, nor to speak to them himself,
except to ask them whether they have agreed upon
their verdict.

There was an old rule which permitted them neither
food, drink, nor fire ; but this was abolished in 1870.
If the jury require any further assistance from the
judge, they may ask for it ; but any further direction
the judge may give them should be in open court, and
in the presence of the accused.

The verdict of the jury must be unanimous. When
the jurors have agreed upon their verdict, or are so
divided in opinion that there is no prospect of their
coming to an agreement, they return to the court,
and are asked by the clerk of the court whether they
are agreed upon their verdict. The foreman of the
jury acts as spokesman for the whole jury. If the
jury reply in the negative, and state that they are
unable to agree, the judge will, if satisfied that there
is no likelihood of their coming to an agreement,
discharge them from giving a verdict. The prisoner


is then liable to be tried afresh by another jury. If,
however, they reply in the affirmative, they are
asked whether they find the prisoner guilty, or not
guilty, of the charges against him contained in the
indictment. Where there is more than one prisoner,
the verdict against each is taken separately. And
a jury may find one prisoner not guilty, another
guilty, and disagree about a third. As we have
already noticed, each count of an indictment amounts
to a separate indictment ; and therefore a separate
verdict in respect of each count should be taken.

The verdict of a jury may be a ' general ' verdict,
i.e., ' guilty ' or ' not guilty' upon the charge or charges
made in the indictment ; or it may be a ' partial '
verdict, i.e., ' guilty ' upon some counts and ' not guilty '
upon others, or it may be a ' substituted ' verdict,
or a ' special ' verdict. These last two forms of
verdict call for some further consideration.

A substituted verdict is one which a jury are em-
powered to find in certain cases, when they do not
consider that the prisoner has been proved to be
guilty of the offence charged in the indictment, but
do consider that he has been proved to be guilty of
some other offence. We have already had occasion
to notice some of the cases in which such substituted
or alternative verdicts may be found ; but it will be
convenient here to collect together all such cases,
some of which are by the Common Law, and others
the creation of statute.

At the Common Law, a prisoner cannot be con-
victed of an offence of an entirely different character
from that charged against him in the indictment.
Thus, he cannot be convicted of felony on an indict-
ment for misdemeanor, nor, conversely, of misde-
meanor on an indictment for felony. But he can be
convicted of a less aggravated form of misdemeanor or
felony respectively, provided the indictment contains



words suited to both offences. In other words, it
is not necessary in every case to prove the whole
extent of the offence charged ; provided the facts
proved show the prisoner to have been guilty of some
other offence, of the same nature but of a lesser degree
of gravity. Thus, on a charge of murder, the jury
may find a verdict of manslaughter ; on a charge of
burglary and larceny, a verdict of burglary only, or
of entering a dwelling-house in the night with intent
to commit felony therein, or of housebreaking, or of
larceny in a dwelling-house, or of simple larceny ;
on a charge of robbery, a verdict of larceny from the
person or of simple larceny ; on a charge of assaulting
and wounding, thereby occasioning bodily harm, or
of indecent assault or of riot and assault, a verdict
of common assault ; and, on a charge of publishing
a libel knowing the same to be false, a verdict of
publishing a libel without such knowledge.

This general rule of the Common Law has been
supplemented by various statutory enactments. In
the first place, the Criminal Procedure Act, 1851,
provided that if, on the trial of a person for mis-
demeanor, it appeared that the facts amounted to
felony, the accused should not be thereby entitled
to be acquitted of the misdemeanor. And this
principle, as also the converse case where, on a trial
for felony, the facts amount to a misdemeanor, has
been recognised in a number of subsequent statutes.
It will, however, be observed that, on indictment for
misdemeanor, a defendant cannot be convicted of
felony, except in one special case which will presently
be noticed.

The effect of these various statutes may be stated
as follows : —

(1) On an indictment for child murder, the defendant
may be convicted of concealment of birth
(Offences against the Person Act, 1861, s. 60).


(2) On an indictment for the manslaughter of a

person under sixteen, the defendant may be
convicted of cruelty (Children Act, 1908,
s. 12 (4)).

(3) On an indictment for felonious wounding, the

defendant may be convicted of the misde-
meanor of unlawful wounding (Prevention
of Offences Act, 1851, s. 5).

(4) On an indictment for the felony of administering

poison, &c., so as to endanger life or cause
grievous bodily harm, the defendant may be
convicted of the misdemeanor of administer-
ing poison, &c., with intent to injure, aggrieve,
or annoy (Offences against the Person Act,
1861, s. 25).

(5) On an indictment for rape, or for felonies under

section 4 of the Criminal Law Amendment
Act, 1885, the defendant may be convicted
of a misdemeanor under sections 3, 4, or 5
of that Act, or of an indecent assault (Criminal
Law Amendment Act, 1885, s. 9).

(6) On an indictment for rape, the prisoner may

be convicted of incest or attempted incest
(Punishment of Incest Act, 1908, s. 4 (3)).

(7) On an indictment for incest or attempted in-

cest, the defendant may be convicted of rape,
or of the felony created by section 4 of the
Criminal Law Amendment Act, 1885, or of a
misdemeanor under section 5 of that Act,
or of indecent assault (Punishment of Incest
Act, 1908, s. 4 (3) ). It will be observed that,
in this case, though indicted for a misde-
meanor, the defendant is liable to be con-
victed of felony,

(8) On an indictment for robbery, the defendant

may be convicted of an assault with intent
to rob (Larceny Act, 1910, s, 44 (1) ).


(9) On an indictment for embezzlement, the

defendant may be convicted of larceny; and,
conversely, on an indictment for larceny, he
may be convicted of embezzlement (Larceny
Act, 1916, s. 44 (2)).

(10) On an indictment for larceny the defendant

may be convicted of obtaining by false
pretences ; and, conversely, on an indictment
for obtaining by false pretences, he is not
entitled to be acquitted if it is proved that
the offence amounts to larceny (Larceny Act,
1916, s. 44 (3) and (4)). The narrow dis-
tinction between the offences of obtaining
by false pretences and of larceny by a trick,
has already been alluded to (p. 88), It
will be observed that, on indictment for
the misdemeanor of obtaining by false
pretences, a defendant cannot be convicted
of the felony of larceny ; but, even though
the facts proved amount to larceny, he may
none the less be convicted of obtaining by
false pretences.

(11) On an indictment for felonious damage by

riot within section 11 of the Malicious
Damage Act, 1861, the defendant maybe con-
victed of the misdemeanor created by section 12
of that Act (Malicious Damage Act, 1861, s. 12).
Furthermore, as we have already seen (p. 217),
a person charged with any felony or misdemeanor
may be convicted of an attempt to commit such
felony or misdemeanor.

And, irrespective of the power to amend an indict-
ment, which we have already considered (p. 304), it
is open to a jury to convict a prisoner of having
committed part of the offence alleged against him.
For example, if a prisoner be charged with stealing a
shilling, it is no defence to show that it was a sixpence


that he stole ; and the jury may, in such a case,
find him guilty of stealing sixpence. Similarly, if
an offence be charged to have been committed on
the first day of January, while it is proved that it
was committed on the second day of January. Or,
if a man be charged with stealing an overcoat, a hat,
and a stick, and he be only proved to have stolen the
overcoat, the jury may find him guilty of stealing
the overcoat only.

We now have to deal with special verdicts. These
occur when a jury find certain facts, and leave it to
the Court to say whether on such facts the prisoner
is guilty or not. In such a case, the Judge decides
whether in law the facts, as found by the jury, amount
to a verdict of guilty or not guilty, and directs a verdict
to be entered in accordance with his decision.

Prior to the Criminal Appeal Act, 1907, the more
usual course was for the Judge, in the event of the
jury returning a special verdict, to adjourn the trial,

Online LibraryHenry John StephenStephen's Commentaries on the laws of England (Volume 4) → online text (page 30 of 53)