Copyright
William Oldnall Russell.

A treatise on crimes and misdemeanors (Volume 2) online

. (page 139 of 178)
Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 2) → online text (page 139 of 178)
Font size
QR-code for this ebook


*The general principle on which the decisions on this subject seem to
have proceeded, seerasto 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. (,7)

As to what shall be considered as a promise, or inducement, saying Pminiscs
to the prisoner that it would be better for him if he did confess, is "'"^ '"'^"*^''"
sufficient to exclude the confession. (A) So a confession induced by say-
ing, "I am in great distress about my irons; if you will tell me where
they arc, I will bo favourable to you," cannot be given in evidence. (/)
Where the prosecutor asked the prisoner, on finding him, for the money (.^igg^
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 pri-
soner gave him that, he might go to the devil if he pleased;" upon which
the prisoner took lis. G}/!. out of his pocket, and said it was all he had
left of it ; a majority of the judges held, that the evidence was inadmissi-
ble. (7) So, where a prisoner being in custody, said to the officer who Confession
had the charge of him, " If you will give me a glass of gin, I will tell you ^y prisoner
all about it, and two glasses of gin were given to him, and he made a druuk.
confession of hisguilt. Best, J., considered it as very improperly obtained,
and inadmissible in evidence. f/i.-) But where a prisoner made a state-

(ff) 2 Stark. Ev. 36.

(A) 2 East, P. C. c. 16, s. 94, p. 659. {2 Overton, 86. State v. Doherty. 1 Ilayw. (N. C.)
Rep. 482, State v. Moore, h Ilalstcd, HJ'.i. State v. Guild.}

(i) Cass's case, 1 Leach, 293, note (a).

(J) Jones's case, Rti.'^s. & Hy. C. C. R. 162, but see Rex v. Griffin, ibid. 151, po.^(, 86.3.

(A;) Rex v. Sexton, MS. Clietw. Burn. tit. Confession,, p. 1086, Doyl. & Wms. The authority
of this case has been questioned in several books. Deac. Cr. Law, 424, Rose. Cr. Evid. 37,

improper advantages taken of the situation in which he stood. Commonwealth v. Hosier,
4 Barr, 264.

Where the confession of a prisoner is offered in evidence in connection with some induce-
ment held out to him to make it, if the confession is not so connected with the inducement
as to be a consequence of it, it is to be considered as voluntary and of course admissible.
The State v. Potter, 18 Conn. 166.

When a magistrate on the examination of a prisoner accused of robbing an individual of
a watch on the previous night, and on whom the watch was found, told him " that unless
he could account for the manner in which he became possessed of the watch, he should be
obliged to commit him to bo tried for stealing," this did not amount to such a threat or in-
fluence as would prevent the introduction of the subsequent confession of the accused, espe-
cially as the magistrate repeatedly warned him not to conunit himself by any confession.
State V. Cowan, 7 Iredell, N. C. 239.

A confession obtained by temporal inducement, by threat, or liy a jiromise or hope of par-
don, having some reference to the party's escape from the charge, held out by a person in
authority, is inadmissible. A master or mistress is considered as a person in authority, as
well as a magistrate, shcrifT, or constable. However slight the promise or threat may have
been, the confession cannot be received. State v. Bostick, 4 Harrington, 564.

The examination by a committing magistrate of a prisoner under oath as to the subject-
matter of liis oflence, is sullicient, it seems, to render inadmissible evidence thus elicited.
Commonwealth v. Ilarmnn, 4 Harr. 2(j9.

When a prisoner charged with liomicide was taken before a committing magistrate, and
there sworn to tell tiie truth, and told "If you do not tell the truth I will commit you ;" a
confession thus exacted is inadmissible as evidence against the prisoner on the trial. Com-
monwealth i<. J/arman, 4 Barr, 269.

When a prisoner's confession is unduly obtained, any subsequent confession given on its
basis is inadmissible. Commonwealth v. Ilarman, 4 Barr, 269.

An officer, who had a prisoner in charge told him he had better tell him all about the
matter; and if he would, he would not appear against him; and tliat the prisoner liad better
turn States evidence ; whereupon the i)risoner made a full confession to the officer. Held
that the confession so olitainiMl could not be given in evidence against tlie j)risoner, and
that the proper time of objection was before tlie officer had given his testimony, and not
during the instruction of the jury. Cowley v. The Slate, 12 Missouri, 462.]



827 OF EVIDENCE. [bOOK VI.

ment 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 : Coldridge, 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."(^)
*828 *Where, on an indictment for robbery, a witness stated that he had
Promises said to One of the prisoners, " You had better split and not suffer for
''"'^'°'^"'^®" all of them," the statement of the prisoner was rejected. (m) So where
a person said to the prisoner in the police barracks, '< If any other per-
son had to do in the case, it is better you should tell ;" the statement
there made by the prisoner was rejected. (ti) So where on an indict-
ment for larceny, a witness proved that he said to the prisoner, " It
would have been better if you had told at first ;" the statement of the
prisoner was rejected ; Gurncy, B., saying that is an inducement. It
amounts to this, that if it would have been better then it would
be better now. I think it hardly safe to admit the evidence after
that."(o)
Mills'scase. Where a constable, whilst he had a prisoner in custody, on a charge
of larceny, asked him whether he had committed the felony, which he
denied, and then said, " It is of no use for you to deny it, for there is
the man and boy who will swear that they saw you do it;" Gurney, B.,
held, that this was an inducement to say something, and, therefore, what
Kingston's the prisoner said was not admissible. (j)) So where on an indictment for
^**^' administering arsenic, it appeared that the surgeon who was called in

saw the prisoner, and said to her, " You are under a suspicion of this,

Joj', 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, note (a), it is said, "the authority of
this decision seems doubtful ; for it is not every hope of favour held out to a prisoner that
will render a confession afterwards made inadmissible ; the promise must have some refer-
ence to his escape from the charge."

{I) 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 statements 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 criminallj'', extorted — would be received." The prin-
ciple, however, on which the decision turned, would seem to warrant the marginal note, as
the mere giving of liquor, without any inducement in words, could not operate as an induce-
ment 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
of benefit or injury affcr the confessing or non-confessing. Where liquor is given, the benefit
(if it can be called any) is received already, and nothing further is in expectation. C. S. G.

[m] Rex V. Thomas,*" 6 C. & P. 35,"?, Patteson, J. By such a statement as that made by
the witness tlie prisoner mi;/ht be induced to suppose that he would be more mercifully dealt
with if he confessed, and that he might therefore he induced to confess himself guilty of an
offence he never committed. See reporter's note, ibid.

(n) Moody's case, 2 Crawf & D. C. Jov, 12. (o) Rex v. Walkley,<= 6 C. & P. 175.

(p) Rex V. Mills,'' 6 C. & P. 146, and MSS. C. G. S. "These words seem to have been
construed by the learned judge as the same in effect as if the constable had said, it will be
better for you to confess it, for we can prove it whether you do or not." Joy, 7.

» Eug. Com. Law Reps, xxxii. 487. b Jb. xxv. 435. <^ lb. xxv. 340.

<> lb. xxv. 324.



CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 828

and you had better tell all you know," it was held that a .statement

made after this to the surgeon was inadmissible. ((^) So whore it ap- Partridge's

peared, on an indictment for larceny, that (he 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; Pattcson, 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."(r)

*If an inducement be held out to one prisoner to make a statement *829

which implicates another prisoner, such statement is inadmissible; forTnduoo-

it can only be used as evidence against the prisoner who made it, and l""",^ *"'.
1 • • 1 I'll -1 TT • implicate

then it is evidence obtained hy an inducement. Upon an indictment for another
murder, against a man and woman, it appears that a woman who was r"^""*^""-
placed by the constable with the female prisoner, whilst he went to the
inquest, to prevent her laying violent hands upon herself, and to pre-
vent her from going away, told her to the effect that "she had better
tell the truth, or it would lie upon her, and the man would go free."
Parke, J., (after consulting Taunton, J.,) said, "As this declaration of
the female prisoner can only legitimately be received in evidence to
affect her and no one else, we think that it is not receivable, as it was
made after an inducement held out by a person who had her in custody.
If it were to be used at all, it could only be used to criminate her; and
then it would be evidence obtained to criminate her by means of an in-
duceracnt."(s)

Where a constable, who apprehended a prisoner for stealing a brass Shepherd's
tap, asked him what he had done with the tap he had stolen from the '^^^'^'
prosecutor's premises, and said, " You had bettor not add a lie to the
crime of theft," and desired him to go with another constable, and show
him where he put the tap; Graselee, J., after expressing some doubt,
refused to receive a confession made to the constable who had addressed
these observations to the prisoner. (<)

(y) Rex ('. Kingston,* 4 C. & P. 398. Parke, J., after consulting Liltlcdale, J.

(»•) Re.K i\ Partridge,"" 7 C. & P. 551. Dr. Grecnlcaf Evid. 25G, after citing this case, and
Guild's cuso, post p. 838, observes, "It i.s extremely difficult to reconcile these and similar
cases with the spirit of the rule as expounded by Eyre, ('. B., in Waricit-shall's case, ante, p.
8'20, note (c),the difference is between confessions made voluntarily, and tiiosc "/orccrf from
the mind by the flattery of liope, or by the torture of fear." If the jiarty has made his
own calculation of the advantages to be derived from confessing, and thereupon has con-
fessed the crime, there is no reason to say that it is not a voluntary confession. It seems
tiiat in order to exclude a confession, the motive of hope or fear must be directly applied
by a third person, and must be sudicient, in the judgment of the court, so far to overcome
the mind of the prisoner as to render the confession unworthy of credit." In Rex v. Green,*
fi C..& P. G55, Taunton, J., said, "I take it no man ever makes a confession without pro-
posing to himself, in hi.s own mind, some advantage to be derived from it," a?ite, p. 847.

(.s) Rex I'. Knock,"' 5 C. & P. 539. It does not appear to Jiavc been noticed, cither by the
counsel or by the court, that this was an inducement to tcU (he truth. Sec post, p. 8■^G.

(() Rex V. Shepherd,^ 7 C. & P. 579. l\Ir. Joy, p. 8, observes; that "the manner in which
these words were used may have been considered by the learned judge, who saw and heard
the witness, to be of a threatening nature, and .calculated to lead the prisoner untrult/ to
confess himself guilty: or the words may have been deemed in effect the same, as if the
constable had said, 'you have committed a theft, it will l)e better lor you not to deny it —
that is to confess.' The words, viewed in this liglit, imply an inducement rather than a
» Eng. Cora. Law Reps. xix. 334. " lb. xxxii. 627. •= lb. xxv. 581.

' lb. xxiv. 446. • lb. xxxii. 039.

Vol. II. — 54



829

Drew's
case.



OF EVIDENCE.



[book VI.



If a prisoner be told that what he says would be used for him or
against him, at his trial, his statement is inadmissible. A prisoner, when
before a magistrate, was told by the magistrate's clerk not to say any-
thing to prejudice himself, "as what he said, would be taken down, and
would be used for him or against him at his trial." Coleridge, J.,
«« This is an inducement, and it was held out by a person in authority.
I am of opinion, that the prisoners statement cannot be given in evi-
dence. I cannot conceive a more direct inducement to a man to make
a confession than telling him what he says may be used in his favour at
the trial."(M)

*A confession made by the prisoner with a view and under the hope
of being thereby permitted to turn king's evidence, has been held inad-
missible. In a trial for burglary, a witness was called to prove that
one prisoner had desired him to apply to the justice to admit him as a
witness for the crown ; for that he had not •entered the house, but had
only stood at the door, while the other prisoners went up stairs to com-
mit the felony ; it was objected, that as this confession was made with
a view and under the hope of being thereby permitted to turn king's
evidence, it was not admissible; and Adair, Serjt. being of opinion that
this was not a voluntary confession, the evidence was rejected. (v] On
an indictment for murder, it appeared that the prisoner was taken into
custody on the charge, on the 2nd of December, and that on the 11th
he made certain statements, which were sought to be given in evidence.
To prove one of these statements, a policeman was called, who said that
he held out no inducement to the prisoner to make any statement, nor
did he know that any one else had, down to the 11th of December, when
the statement was made ; but on the 6th of December, he knew that a
reward of 100?., had been offered by the government, accompanied by
a statement, that the Secretary of State would recommend an accom-
plice, not being the person who actually committed the murder, for a
pardon, but the witness could not state that this had come to the know-
ledge of the prisoner; and Cresswell, J., allowed this statement to be
given in evidence. In a latter part of the same case a policeman stated,
that soon after the prisoner had been taken into custody, and before the
6th of December the prisoner requested that he would let him know
if any reward should be offered, or any paper published concerning the

threat." " This case has been controverted," Joy, 8 note (a), but it is not stated npon what
occasion. It is difficult to see how the observations of the constable could induce the pri-
soner to state what was false, especially' as he desired the prisoner to go and show where he
had put the tap ; and, therefore, the case seems at variance with Rex v. Court, post, p. 846,
which seems to have proceeded on the correct principle, namely, that a confession is admis-
sible unless it has been obtained by the prisoner being induced to suppose that it will be
belter for him to admit himself guiltv of an offence which he really never committed. C.
S. G.

(u) Ecg. V. Drew,* 8 C. & P. 140. In the " Law Magazine," Vol. 27, p. 340, it is remarked,
that the ground of this decision probably was, that "the mind of man, especially the mind
of a prisoner, is more prone to hope than fear." If the prisoner had been told merely that
what he had said would be used for him at his trial, it would clearly have been an improper
inducement to make a statement ; and it should seem that it is no less an improper induce-
ment to tell the prisoner that his statement would be used for or against him, because he
would naturally make such a statement under the influence of those words as he conceived
would be beneficial to him upon his trial. C. S. G.

(v) Hall's case, in note to Lambe's case, 2 Leach, 559. But where a person had been
admitted king's evidence, and confessed, and upon the trial of his accomplices, refused
to give evidence, he was convicted upon his own confession. Rex v. Burley, 2 Stark. Ev.
13.

* Eng. Com. Law. Reps, xxxiv. 327.



*830

Confes-
iions with
a view to
being ad-
mitted as
a witness,
and receiv-
ing a par-
don.



Boswell's
case.

Statements
made after
a reward
and pardon
ofl'ered by|
the Secre-
tary of
State re-
jected,
it appear-
ing that
they were
produced
therebv.



CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. 830

murder, and that lie would bring any such papers to him as soon as they
were printed. On the Gth of December, it was generally known that
the Secretary of State had offered a reward and a promise of free par-
don to any of the offenders, except such as had struck the blow, and
on the 13th^ the witness gave the prisoner one of the printed handbills,
which offered 100/. reward to any person, who should give such infor-
mation as should load to the discovery and conviction of the murderers,
and "A pardon to an accomplice, not being the person who actually
committed the murder, who shall give such information as shall lead to
the same result," Cresswell, J., after consulting Patteson, J., held that
a statement made by the prisoner to the witness on the 11th of Decem-
ber was receivable. In a still later part of the same case, it appeared
that on the evening of the 10th of December, the prisoner said that he
saw no reason why he should suffer for the crime of another, and as
government had oft'ered a free pardon to any one of the parties concerned
who had not struck the blow, he would tell all he knew about the mat-
ter. Cresswell, J., — " It now appears, with sufficient clearness, that the
prisoner in making the statements ascribed to him, was influenced by
the hope of pardon held out by authorized parties. I shall, therefore,
reject the evidence of all statements made by him after the evening of
the 10th of December, *and expunge from my notes such as have already *831
been given in evidence. "(r«)

The prisoner, who was indicted with several others for burglary, sent Confep?ion

for a maijistrate, to tell him he had somethina; to communicate to him. '^'. °"*

o 11- • -1 • prisoner

The magistrate acted at the interview with great caution, and warned after

the prisoner not to say anything that would criminate himself, as what "no'h^r
he said would be taken down in writing, and made use of against him ailmitted
on his trial. The prisoner replied he did not care, as he knew that the Q"/^'(n's
witness knew all. Upon cross-examination, it appeared that the priso-n),'j|after a
ner had been confined, after his arrest, in the same cell with another caution
person, charged with the same crime, who had confessed and been ad- ,un°\g''tra(e
mitted Queen's evidence ; the prisoner was aware of this, and it was to
that he alluded, when he said that the witness knew all ; and that it
was from the statement made by the person who had been admitted
Queen's evidence, that the prisoner was examined, and his confession
taken down. It was insisted, that under these circumstances, the con-
fession was not admissible, as the caution, given by the magistrate, did
not appear to have had the eflect of removing from the prisoner's mind
all the influences which would have invalidated the confession, and that
there was a reasonable cause to lead the prisoner to believe that if he
made a confession, he would be put in the same situation with the other
person who had done so. Crampton, J., received the confession, ob-
serving, that the magistrate stated, that as far as he knew, the prisoner
came forward voluntarily; that a mere formal caution from a magistrate
would not be sufficient to .set up a confession, if it appeared that such
confession was made under the distinct imjjression of a previous pro-
mise or threat, but that it did not appear that there was any previous
inducement whatever. If there were any threats made use of before,
or any promises held out, the distinct caution given by the magistrate,
was sufficient to obviate them. It was in effect telling the prisoner, that
he would get no benefit from his confession, and that he should conse-

(«') Reg. f.'. Boswcll,* 1 C. k Mars. 584.
» Eng. Com. Law Heps. xli. 318.



ces



831 OF EVIDENCE. [bOOK VI.

quently dismiss from bis mind, all cxj^ectation of getting any, if any
sucli ho had.(a;)
Threats As to wbat shall be considered as a threat, saying to a prisoner that

ud mena- jj. ^qu1(J \)q -worse for him if he did not confoss, is sufficient to exclude a
confession. (^) So a conftission induced by saying, " unless you give me
a more satisfactory account, I will take you before a magistrate," or(2)
by saying, "That unfortunate watch bus been found, and if you do not
tell me who your partner was, I will commit you to prison as soon as
we get to Newcastle ; you are a damned villain, and the gallows is
(iriffiiii's painted in your face,"(a) cannot be given in evidence. So where a
case. prosecutrix said to her servant girl, who was in custody on a charge of

*832 administering *poison to her, " Jane, now you see the effects of your wick-
edness ; you will be to go from here to-morrow morning to Stourbridge
to the magistrates, and not return again." The girl answered, "Sooner
than I will go from here or any where else, I will tell the truth ;" and
the prosecutrix said " that is what I want," and the prisoner then made
a statement; it was held that the statement was inadmissible, because
it was made to prevent her being taken before the magistrate. (6)
Where the If the words uscd to a priiioner be such that he might consider them
words used ^g .^ threat a confession is not admissible. The prisoner bcincr in cus-

lire Jiinl)!'''—

uous. ° tody on a charge of arson, he was told that " he ought to tell whatever
was the truth, but he must be very careful, as he was sure to be com-
mitted," on which he made a statement. Taunton, J., doubted whe-
ther the words used might not be construed as a threat, and having
consulted Littledale, J., said, " We think as the words were so ambigu
ous, that they might be considered by the prisoner as a threat, the evi-
dence ought not to be given. "(c)

Under false Where a prisoner had been taken into custody by a constable without

imprison- ,^ -^varrant and detained by him in durance for four days, and durino; his
ment. . •' . . .

confinement a confession was obtained under certain promises, and on

the part of the prosecution it was attempted to be shown, that the con-
fession was voluntary, and not made under such promises : Ilolroyd, J.,
said, " Even if that were so, the fact of its having been made while in



Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 2) → online text (page 139 of 178)