William Oldnall Russell.

A treatise on crimes and misdemeanors (Volume 2) online

. (page 141 of 178)
Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 2) → online text (page 141 of 178)
Font size
QR-code for this ebook

that the influence was continuing. I think it would make no difference
that the promise was made by one person, but the confession to an-
Guild's other." (t') And where the prisoner had been induced by promises of
ease. favour to make a confession, which was for that cause excluded, but

about five months afterwards, and after having been solemnly warned
by two magistrates that he must expect death, and prepare to meet it,

(t) Bryan's case, Joy, 13. Jebb's C. & P. C. 157.

(m) Rex V. Jane Griffiths, MSS. C. S. G. S. C. but not so fully reported, Rex v. Richards,*
5 C. & P. 818, Bosanquet, J.

(y) Rex V. NichoUs and Edwards, Monmouth Sp. Ass. 1830, MSS. C. S. G.
» Eng. Com. Law Reps. xxiv. 338.


lie again mado a full confession, this latter confession was admitted in
evidence. («') In this case, upon much consideration, the rule was stated General
to be that, although an original confession may have been obtained by ''"'°'
iiuprnper means, yet subsequent confessions of the same or of like facts
may be admitted, if the court believes, from the length of time inter-
vening, or from proper warning of the consequences of confession, or
from other circumstances, that the delusive hopes or fears, under the
influence of which the original confession "'was obtained, were entirely *839
dispelled. (.r) In the absence of any such circumstances the influence
of the motives, proved to have been off'cred, will be presumed to con-
tinue, and to have produced the confession, unless the contrary is shown
by clear evidence, and the confession will therefore be rejected. (y)

With regard to the persons, whose inducements will prevent the As to the
admission of confessions, it should seem, that all who are encased in i"'"""""*

. ' . ... ° *= wboso in-

Ihc apprehension, prosecution or examination of a prisoner, are consid- iluccincnig

ered as persons of such authority, that their inducements will exclude ^y"'^'''"
any confession thereby obtained. f Thus an inducement held out by fujsious.
the prosecutor,(^') the prosecutor's wife,(a) or his attorney, (i) or by a
constable or other oflBcer,(c) or some person assisting a constable, (cA or
the prosecutor(c) in the apprehension or detention of the prisoner, or by
a magistrate acting in the business, (/) or other magistrate, (y) or ma-
gistrate's clerk, (^/t) or by a gaoler(/J/) or chaplain of a gaol, (/;////) or by a
pel-son having authority over the prisoner, as by the captain of a vessel
to one of his crew,(<) or by a master or mistress to a servant, (j') or by a
person having authority in the mattcr,(/r) or by a person in the presence
ofone in authority vi^th his assent, whether direct or implied, (/) will be
sufficient to exclude a confession made in consequence of such in-

' A person who has accompanied the prosecutor in pursuit of a pri- Person ac-
soner, is a person in authority, so that his inducement will exclude a p«"ipany-
confession. The prisoner when taken into custody, was told by a per- prosecutor
sou, who had accompanied the prosecutor in pursuit of the prisoner, that iniiursuit.
it would be better for him to confess ; but it was urged that as he was a
person who had no authority to interfere, the confession was admissible.
Littledale, J., "That applies to mere strangers; here the person went

(w) Guild's case, 5 Halst. 163, 168, as stated Grcenl. Ev. 257.
(x) Grecnl. Ev. 257, citing Guild's case, 5 Halst. 180.
h/) Greenl. Ev. 257, citing Robert's case, 1 Dcvereux R. 259, 264.

(z) Thompson's case, 1 Leach, 291, ante, p. 831. Cass's case, ibid. 293, note (a), ante, p.
827, and many other cases.

(«^Rcx V. Upchurch, R. & M. 0. C. R. 465,po.if, p. 841. {b) 1 Phill. Ev. 407.

(c^Rex V. Sexton, 1 Burn's J., D. & Wms. lOSG. (rf) 1 I'liill. Ev. 407.

(e) Rex V. Stacey, MSS. (\ S. (J. infra, note (m). (/) 1 Phill. Ev. 407.

(,<7) Rex V. Clewes,»4 C. & P. 221, ante, p. 837.

I'h) Rex V. Drew,'' 8 C. & P. 140, ante, p. 829. {hh) Rex v. Gilhain, jdo.-j^, p. 84S.

(h/ih) Rex V. Gilham, xi/j'ra. (/) Rex v. Parratt,'= 4 C. & P. 570.

(j) Rox r. T^prhnrch, .vij>ra. Reg. v. Taylor,*" 8 C. & P. 733.

(k) 1 Phill. Ev. 407.

(/) Reg. V. Taylor, supra. Rex v. Pountney,* 7 C. & P. 302.

f [Where one of the company engaged in tiie apprehension of a prisoner, in the presence
of the officer and the prosecutor, held out promises of benefit to him, under the influence of
which he made a confession, it was held that such confession was not admissible in evi-
dence. Morehcad v. The State, 9 Humphreys, 635.]

» Eng. Com. Law Reps. x.xi. 354. i* lb. xxxiv. 327. <= III. xix. 532.

<• lb. xixiv. 608. • lb. xxxii. 516.


with the prosecutor, and was acting with his authority and sanction."

The confession was rejected. (?>i)
Person " It has been argued, that a confession made upon the promises or

supposed threats of a person erroneously believed by the prisoner to possess

to possess 1-1 • .1 •/.

auihority. authority, the person assuming to act m the capacity of an officer or

magistrate, ought, upon the same principle (on which confessions to per-
sons having authority are rejected) to be excluded. The principle
itself would seem to include such a case; but the point is not known to
have received any judicial consideration. "(?i)
*810 *If a confession be obtained by means of any improper inducement

Induce- ]jei(j out by a person who had no authority in the presence of a person

Tuontsused- . ..

ia tho pro- having authority, and with his consent, it is not admissible. And it is
gouee and not uecessary that the person having such authority should express his
sanction consent in words ; for if he be silent he will be presumed, as he did not
of persons express his dissent, to have sanctioned the inducement. Where the
in author- constable, who took the prisoner into custody, was present, and had the
prisoner in custody at an inn, when a confession was procured by in-
ducements held out by the inn-keeper, and the constable being present
did not caution the prisoner in any way; Alderson, B., said, " I have a
very strong opinion against its admissibility; but as there are opinions
which I am bound to respect, opposed to my own, I think I had better
receive the evidence ; and if it should become necessary, I will reserve
Taylor's the point for the consideration of the judges. "(o) So where upon an
indictment for setting fire to the house of R. Lyford, it appeared that


{m) Rex V. Stacey, Monmouth Spr. Ass. 1830, MSS. C. S. G.

[n) Greenl. Ev. 258. As the question turns upon the effect produced upon the mind of
the prisoner, and as the effect must be the same, whether the party be an officer or not,
provided the prisoner believed him to be so, it should seem that a confession under such
circumstances ought not to be admitted. In considering these questions it should be
remembered that every person has authority where a felony has been committed to arrest
the party who committed it, ante, vol. 1, p. 539, et seq.; in this respect, therefore, a private
individual and a constable stand upon the same footing, and this may be well deserving of
consideration in cases where the inducement is held out in the absence of the prosecutor or
an officer. If a private person, after a felony had been committed, were to tell a person not
in custody that he suspected him of the felony, and that if he would confess he would let
him go, but that if he would not he would apprehend him, it might, it is conceived, be well
contended that a confession obtained thereby would be inadmissible, on the ground that the
party had authority to apprehend, and was in effect a constable pro hue vice. After the recent
cases, an inducement by a private person, it should seem, can only be considered as inopera-
tive, when it is given in the presence of a person in authority, such person expressing his
dissent to it, or cautioning the prisoner against trusting to it, or where it is given to a pri-
soner in custody, no one having authority being present, as if a private person were to
advise a prisoner in gaol through the grating to confess, or send a letter to him to the same
effect. "The difficulty experienced in this matter," observes Dr. Greeuleaf, p. 259, ''seems
to have arisen from the endeavour to define and settle, as a rule of law, the facts and circum-
stances, which shall be deemed, in all cases, to have influenced the mind of the prisoner in
making the confession. In regard to persons in authority there is not much room to doubt.
Public policy, also, requires the exclusion of confessions obtained by means of inducements
held out by such persons. Yet, even here, the age, experience, intelligence, and constitu-
tion, both physical and mental, of prisoners are so various, and the power of performance
so diiferent in the different persons promising, and under different circumstances of the pro-
secution, that the rule will necessarily sometimes fail of meeting the truth of the case. But
as it is thought to succeed in a large majoritj- of cases, it is wisely adopted as a rule of law
applicable to them all. Promises and threats by private persons, however, not being found
so uniform in their operation, perhaps may, with more propriety, be treated as mixed ques-
tions of law and fact ; the principle of law that the confession must be voluntary, being
strictly adhered to, and the question whether the promises or threats of the private indivi-
duals who employed them Avere sufficient to overcome the mind of the prisoner, being left,
in the discretion of the judge, under the circumstances of the case." C. S. G.

[o) Rex V. Pountney,* 7 C. & P. 302. The prisoners were acquitted.
* Eng. Com. Law Reps, xxxii. 516.


on the morning of the fire, the prisoner, who was the servant of the
prosecutor, was sent for into the parlour, in which Mrs. Lyford and
Mr. Winders were; and that Mr. Winders, who was not a constable,
or in any oflBce or authority, said to the prisoner, <«You had better tell
how you did it;" and that thereupon she made an answer. Patle-
son, J., « It is the opinion of the judges, that evidence of any con-
fession is receivable, unless there has been some inducement held out
by some person in authority; and iu this case I should have received
the evidence of the statement made to Mr. AYindcr.s, if the inducement
had been held out b}' him alone. But here the inducement does not
*rest with him alone, because Mrs. Lyford, Avho was the wife of the "841
prosecutor and also the mistress of the prisoner, was present with Mr.
Winders, and must, as she expressed no dissent, be taken to have sanc-
tioned the inducement. I think, therefore, that the inducement must
be taken, as if it had been held out by Mrs. Lyford, who was a person
in authority over the prisoner, and that therefore the evidence is inad-
missible. "(/;)

On an indictment for a misdemeanor in attempting to set fire to her T'pchurch"?
master's house, it appeared that the prisoner, a girl aged thirteen, was eon^ossion
a domestic servant to the prosecutor, whose wife lived with him, and obtiiined

took her share in the management of the house. After the attempt to '^''"'" * *®'''

11 1- 11 • . • . , ^''*°^

set lire to the house was discovered, the prisoner s mistress, in the through

absence of the prosecutor, said to her, <' ^lar}-, my girl, if you are ^'^'P^s and
guilty do confess; it will perhaps save your neck; you will have to go ii^ij out
to prison; if William II. (another person suspected, and whom the V the
prisoner had charged,) is found clear, the guilt will fall on you." She jii'c^,°aster
made no answer. The mistress then said, << Pray tell me if you did :iii.l prose-
it." The prisoner then confessed. It was contended on the part of ^".'"r '? '°"

•11-C11 !• aJuiissiblu.

the prosecution, that the wife had no authority, real or apparent, over
the prisoner, so as to hold out any hope which could influence the pri-
soner to make a false statement, iu order that her life might be spared,
and therefore that the confession was admissible. The confession was
admitted, and the question as to its admissibility reserved for the con-
i^ideratiou of the judges, who thought the confession ought not to have
been received. (j)

On a trial for setting fire to a house, it appeared that the prisoner, a Simpson's
girl about fifteen years old,"!" was a servant in the prosecutor's house, ^p,^^'
and that soon after the fire was put out, Handsley, a neighbour of the fcssion of
prosecutor's, said to the prisoner, "I doubt you have set this house on "■S"''
fire by the candhj between the laths." She said she did not. On the years oM.
same day, Mrs. ]3owis, who lived about three hundred yards from the <^<='=«'*^'"^'^
house of the prosecutor, and who was the mother of Mrs.- Blackburn, appUc'a"/
the wife of the prosecutor, spoke to the prisoner in the prosecutor's t'^ns by tho
house in the presence of Mrs. Blackburn, who was very deaf, and theF'^^,^*^*'"r

> 1 1111111 tors reia-

pnsoner s mother, and told her she had better confess the truth, because tions and
she believed it was her that fired both tlic house and the stack, and that f''"^^-

111 111 f ^ • n 1 ■, ■, bour?, a-

it would be a great deal the worse for her if .she did not confess. The mounting
prisoner said she did not. On the same day the prisoner was taken be-'" il»«at»

(j9) Reg. V. Taylor," 8 C. & P. 733. (q) Ren v. Upchurcb, R. & M. C. C. R. 465.

-)• [Confessions fidmi.ssiblc nojninst a child between twelve and thirteen years of ng<.'.
Slate V. Bostick, 4 Ilnrrington, ."ifj'i.]

• Eng. Com. Law Reps, xxxiv. (JOS.


and pro- fore a magistrate at Spilsby. On the next morning, Mrs. Bowis saw tbe
not ad '^ prisoner again on the road to her house. Mrs. Bowis said to the prisoner,
missiblc. she should not come to her house, and told her again it was her that
fired both the house and stack ; she said she did not do it. Soon after,
Handsley came up and joined them, and said to the prisoner, "Don't be
so bold, perhaps you will have to go to Spilsby to-morrow." Spilsby
was the place where the magistrates met. lie told her that perhaps
somebody will come forward to-morrow that saw you do it. She took
her apron up, and held it to her face and said no more. She always
denied it; and when Handsley said she might have to go to Spilsby,
she denied it again. He said, " If you be guilty, go along with Mrs.
*842 Bowis, and beg your master and mistress's pardon, and *get away and
be better in future, and we shall not seek after you ;" and he said,
''Never mind your wages, I'll give you a few shillings out of my
pocket." And Handsley also told her it would be better for her to con-
fess. After he went away, Mrs. Bowis went with the prisoner to Black-
burn's house, and talked to her about the fire all the way ; and after
they got there, they went out of the house, and Mrs. Bowis said to the
prisoner, " Now, Sarah, you lighted the bunch of matches, and put it
into the thatch of the house;" before she said that, she told the prisoner
that if she went to Spilsby again she would be a great deal worse off,
and she said to her several times, both going along the road to tbe pro-
secutor's house, and also in the house, and also when she spoke to her
out of doors, that it would be a great deal better for her if she would
confess, and a great deal worse for her if she did not confess. The
counsel for the prisoner objected to evidence being given of what the
prisoner said, on Mrs. Bowis charging her as before stated, on the
ground that after these promises and threats had been held out to her,
her answer could not be received unless she had a caution. For the
prosecution it was contended that her answer might be received,
because Plandsley was neither a constable, nor did he stand in any
relation to the prosecutor; and though Mrs. Bowis was the mother of
the prosecutor's wife, yet that promises and threats, made by a person
standing in that situation, were not sufficient to exclude a confession.
Littledalc, J., allowed the evidence to be given, but reserved the ques-
tion for the opinion of the judges, whether it ought to have been received.
On Mrs. Bowis saying to the prisoner, "Now, Sarah, you lighted the
bundle of matches, and put it into the thatch," the prisoner said, "Yes,
I did." Mrs. Bowis then told Mrs. Blackburn what had passed, and
Mrs. Blackburn then came out, and then Mrs. Bowis, in the pi'esence of
Mrs. Blackburn, asked the prisoner what she did it for; whether it was
for anything against the family ? She said " No." Mrs. Blackburn
asked if any one persuaded her to it? She said "No;" she said she
had no malice. The prisoner in her defence asserted her innocence, and
said that Mrs. Bowis said that if she would confess to it she should have
her liberty, and she added that she did it on purpose to get her liberty,
and that they frightened her to do it. The jury said they found the
prisoner guilty with her own confession; but Littledalc, J., told them
they must find her either guilty or not guilty, and then thoy gave a ver-
dict of guilty ; and all the judges, upon a case reserved, were unanimously
of opinion that the confession ought not to have been received, and that
the conviction was bad.(r)

(r) Rex V. Simpson, R. & M. C. C. R. 410. The grounds upon which this decision pro-


♦With regard to the persons whose induccracnts will not exclude a Rowo'a
confession, the following cases may be mentioned : — AVliile the consta- j„j°yco.
ble who apprehended the prisoner had him in custody to take him before ments by
a magistrate, some of the neighbours who had nothing to do with the T'^'''*""^ "."^
apprehension, prosecution, or examination ot the prisoner, officiously ty.
interfered, and admonished the prisoner to tell the truth, and consider
his family, which was a large one. No answer or observation thereon
was made by the constable, nor did the prisoner ansAvcr them, but he
desired the constable to call upon him in an hour at the prison, which
he did, and there the prisoner made a full confession, which was re-
ceived in evidence, and upon a case reserved, the judges present agreed
that the evidence was admissible, and the conviction right, because the
advice to confess was not given or sanctioned by any person who had
any concern in the business. (.s) So where the counsel for the prisoner
objected to a confession before a committing magistrate, and ofiered to
prove, that the wife of the constable had told the prisoner, some days
before the commitment, that it would be better for him to confess, Mr.
Baron Wood overruled the objection, and admitted the confession. (<)

In the case of Rex v. Eliz. Gibbons,(H) whowas indicted for the mur-Gibbons's
der of her bastard child, a surgeon was called to prove certain confes- '^^^'^*
sions made by the prisoner to him. He stated that he had held out
no threat or promise to induce her to confess; but a woman, who was
present, said that she had told the prisoner she had better tell all ; and
then the prisoner made certain confessions to the surgeon. It was ob-
jected, that as the confession was made after an inducement held out, it
could not be received in evidence; but Park, J. A. J., after consulting

ceeded are not mentioned in the report, and the real import of tlic case does not apjiear to
be correctly abstracted in the text books, as observes Mr. Joy, p. 9, and after abstracting
the case he well observes, " that it was in the prosecutor's house, and in the presence of the
prisoner's Another, and of the prisoner's mistress, a person in authority over her, and under
her implied sanction, that the prisoner was told in the first instance that it -would better for
her to confess. So in the conversation that immediately elicited the confession, the induce-
ment was held out in the prosecutor's house, [this is an error, it was after "they went out
of the house,"] and although it docs not appear distinctly whether the prosecutor or his
wife were then present, [it is clearly to be infcrre<l that they were not present, for after the
prisoner said "I did," Mrs. Bowis told Mrs. Blackburn, and she " /Arn came out"] the influ-
ence caused by the inducement held out on the proceeding morning, in the presence of the
prosecutor's wife, and in his house, may perhaps be considered to have continued." Joy,
10, and 11, and he refers to Rex t'. Upchurch, a7ite, p. 841, and Reg. v Taylor, anlr, p. 840,
to show that the mistress is a person in authority. It may be observed, also, that Patteson,
J., held in Reg. v. Taylor, that an inducement held out by a person in the presence of the
prisoner's mistress must be taken as if it had been held out by the mistress herself, from
which it may be inferred that that very learned judge considered the person holding out the
inducement as the agent for that purpose of the mistress. In that case, as the prosecutrix
expressed no dissent, she was taken to have sanctioned the inducement; so in the present
ftisc the same must be inferred as the inducement first held out in the presence of the mis-
tress, and as by her conduct in the latter part of the transaction the prosecutrix sanctioned
what Mrs. Bowis had done in her absence, the learned judges may have thought that Mrs.
Bowis was the agent of the prosecutrix for the purpose of discovering the guilt of the pri-
soner. If a person were expressly employed by the prosecutor to discover the person who
had committed a felon}-, there seems good reason why he should be considered as a ])crson
having so much to do with the apprehension and prosecution as to render a confession
obtained by his inducements inadmissible. See Rex v. Stacey, ante, p. 8.39. C. S. G.

(s) Rex V. Row, Russ. & Ry. 153. See Rex v. Pouutney, a?itc, p. 840, and Keg. v. Taylor,
ante, p. 840, and qu. whether as the constable not only expressed no dissent to the induce-
ments used, but by going to the prison seems to have sanctioned them, there was not ground
for contending tliat the confession was improperlj' ol)tained. C. S. G.

(i) Rex V. Ilardwick, 1 Phill. Ev. 408. {5 Ilalstcd, 1G3.}

(u) 1 C. & P.» 97.

* Eng. Com. Law Reps. xi. 327.


Ilullock, B., held that as no inducement had been held out by the sur-
geon, to whom the confession was made, and the only inducement had
been held out by a person having no authority, it must be presumed
that the confession to the surgeon was a free and voluntary one. If the
promise had been held out by a person having any office or authority,
as the prosecutor, constable, &c., the case would be different; but here,
some person having no authority of any sort, officiously says, you had
better confess. No confession follows, but some time afterwards, to an-
*844 other *pcrson, the prisoner, without any inducement held out, confesses.
The learned judge added, that he and Hulloek, B., had not the least
doubt that the evidence was admissible. So where the counsel for the
prisoner, proposed to show that the prisoner, being locked up alone in a
room in a public house, was told by a man that another prisoner had
told all, and that he had better do the same to save his neck : and that
on this, he confessed. It was held, tjiat as the promise, (if any) was by
a person wholly without authority, the subsequent confession to the
constable, who had held out no inducement, must be considered as
voluntary, and was therefore admissible. (.r)
Confession There has been a difference of opinion among the judges whether a
to a person confession made to a person who has no authority, after an inducement
thorU Tf ^^^^ ^^^ ^y ^^^^ P^^so^j ^^ receivable: some of the judges thinking it
tor iiidiicc- receivable, and others thinking it is not 80.(3^) And several cases have
ment by occurred, in which confessions made to persons without authority, in
son. consequence of inducements held out by such persons, have been re-

jected. (s) But it is said to be <' the opinion of the judges that evidence
of any confession is receivable, unless there has been some inducement
held out by some person in authority. "(a)
Result of The result of these cases seems to be, that a confession is not inad-
the cases, migsible, although made after an exhortation, or admonition, or other

(x) Eex V. Tyler and Finch,^ 1 Carr. & P. 129, Hulloek, B.

Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 2) → online text (page 141 of 178)