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of his statement is admitted in evidence,
the whole should be admitted. 1 Phill.
Ev. 399. See also Smith v. Blandy, R.
& M. N. P. C. 257. Rose v. Savory,

2 B. N. C. 145.

(wi) Reg. v. Crowhurst, 1 C. & K. 370.
In Reg. v. Smith, 2 C. & K. 207, Lord
Denman, C. J., said, ' I quite agree with
Reg. v. Crowhurst, which is very correctly
reported. It was mentioned to me by
Alderson, B., when it occurred.' And
Lord Denman added that in a similar
case the magistrate should send for and
examine the person mentioned, as he
might either exonerate the prisoner or
prove his statement to be false. See also
Reg. v. Evans, 2 Cox, C.C. 270, ante, vol.
2, p. 340, as to the improbabilities of a
prisoner's statement.

(«) Supra.


Unless there
be good
reason to
believe the
statement to
he true, the
need not con-
tradict it.

Of Evidence.

[book VI.

Where a pri-
soner openly
sold stolen
property, and
named the
from whom he
received it as
soon as
charged with
the offence, it
was held that
there was some
evidence for
the jury,
tbongh those
persona were
not called.

person- whom the prisoner had referred to in one of two con-
tradictory statements, (o)

Where it appeared that certain cloth had been cut and carried
away from a church, and a knife, which was proved to belong to
the prisoner, found on the floor of the church, and in the prisoner's
house several remnants of cloth were found, which corresponded
with the pieces still remaining in the church, and the prisoner
being charged with the offence said he knew nothing of it, and
had boughl the cloth of one Lake, who lived a mile off; it was
contended on the authority of Reg. V. Crow hurst (p) that the pro-
secutor was bound to call Lake as a witness. It was held, how-
ever, that thai was not so ; because the discovery of the prisoner's
knife in the church went to show that he himself was the thief,
and therefore that the account he had so given was either not
true, or not likely to be so. The prisoner, therefore, was pro-
perly left to reconcile the finding of his knife with his innocence,
by showing from Lake that he had come honestly by the cloth
notwithstanding that fact ; the rule on this matter being that the
prosecutor was not bound to call persons named by the prisoner,
unless his account was evidently true, or there was good reason to
believe it to be true till it was contradicted. Here there was no
such reason, as the facts were at variance with the story ; but
still the story might be true, and it was for the prisoner to make
out its truth by calling the man from whom he bought the
stolen property, (q)

Upon an indictment against the prisoner for stealing and re-
ceiving two waistcoats and two pairs of trowsers, it appeared that
the articles were stolen on the 2nd of November, and that they
were sold by the prisoner for twelve shillings in a public house
openly, without attempt at concealment, on the 4th of November,
when about thirty persons were in the room. To the constable,
who charged him with the felony, the prisoner said, ' Cocking
and Derby brought them to my house, and the woman who keeps
my house ( Mrs. Wilson) will say so, and I, being on the spree,
sold them and spent the money.' In consequence of this state-
ment Cocking and Derby were apprehended, and the former
convicted of stealing articles taken at the same time from the
prosecutor's house ; but Derby Avas discharged for want of evi-
dence. The constable went to Mrs. Wilson, and made inquiries
as to the prisoner's statement, but no evidence of what transpired
on those inquiries was received. It was urged that, as the pri-
soner had stated how he came into possession of the articles, and
had mentioned the names of real persons from whom he had
received them, it was incumbent on the prosecution to negative
his statemenl if false, by calling Cocking, Derby, and Mrs. Wil-
son; l>nt the sessions overruled the objection, and the prisoner
was convicted of stealing; and. upon a case reserved upon the
question whether, under the circumstances of the case, which

O) Reg. v. Dibley, 2 C. & K. 818.
Piatt, B., added, 'I think it might he
prudent in the prosecutor to have the wit-
nesses in attendance ( though he * 1 • > s not

call them, to avoid the effect of il b-

serration by the prisoner's counsel that

those persons could have substantiated the
prisoner's defence, hut that he was too
poor i" procure their attendance.'

(p) Supra.

(</) Reg. v. Banner, 2 Cox, C. C. 487,
Pollock, (J. .B.

chap. iv. § i.] Of Confessions and Admissions.

rested solely on a recent possession of the stolen goods, it lay on
the prosecution to call the persons to whom the prisoner referred,
or some of them, to account for his possession, it was held thai
there was evidence for the jury, upon which the prisoner might
be convicted; but Pollock, C. B., said, ' 1 should be sorry that,
upon such evidence, any prisoner should be convicted before
me.' (/■)

Upon an indictment for burglary, it appeared that, shortly after
the robbery, four glass jars containing sweetmeats, which had been
taken from the prosecutor's, were found in the prisoner's house,
not being in any way concealed, and the prisoner's counsel urged
that this was consistent with the account the prisoner had, as he
was instructed, given of the way in which the jars had come into
his possession ; namely, that the prisoner had found them in a
field. But no one w r as called to prove this statement. Alder-
son, B., told the jury that, if it had appeared that, before sus-
picion attached to the prisoner, he had given this account of the
possession of the property to his neighbours, the property being
there at the time, and before search made, he had not the slightest
doubt that, valeat quantum, this would have been very competent
evidence for the prisoner, (s)

Upon an indictment for burning bibles, it was proposed to
prove, on the part of the defendant, that he had preached sermons
relating to immoral publications previously to the alleged offence,
and it was urged that it was a material part of the charge that
the defendant had knowingly caused the bibles to be burnt, and
therefore for the purpose of showing his intention in getting books
together, his directions given in the sermons to the persons who
brought in the books were admissible ; but it was held that the
evidence could not be given. It was true that declarations ac-
companying acts are admissible to show the intention at the time ;
and the question of intention was a very material one in the case ;
but it w r as to be infei'red from legal evidence of facts, and not
from declarations of the defendant on former occasions uncon-
nected with the subject-matter of the trial, (t)

^liere a confession is tendered in evidence, the proof that it
was made voluntarily lies upon the prosecutor ; and if it be left in
doubt whether the confession were made in consequence of an
inducement, it will be rejected. Where a prisoner charged with
larceny was told that it would be best for him if he would tell
how it was transacted, and it was contended that it did not appear
that a statement was made in consequence of this inducement,
and if the evidence left that fact doubtful, the onus did not lie
on the prosecution to prove the negative ; Parke, B., said, ' Yes,


A statement
by a prisoner
as to stolen
property in
his possession
before any
against him,
is said to be
admissible for

with the acts
charged as an
offence are
in favour of
a prisoner.

It lies on the
to prove that
a statement
by a prisoner
was voluntary.

(r) Reg. v. Wilson, D. & B. 157. The
chairman told the jury that the constable
having made inquiries which satisfied him
(but the case does not state this), it was
not necessary for the prosecution to call
the persons to whom the prisoner ref rred.
On the contrary, however, it would rather
seem that the fact that the constable did
not think the persons named should be
called for the prosecution, affords an in-
ference that they would have supported

the prisoner's statement.

(s) Reg. v. Abraham, 2 C. & K. 550.
I never have been able to discover any
ground for this obiter dictum. Such a
statement is not one accompanying an
act ; it is a mere declaration, and, instead of
being atrainst the interest of the prisoner,
it is directly in his favour, supposing the
goods to have been stolen.

(0 Reg. v. Petcherini, 7 Cox, C. C 79,
Crampton, J., and Greene, B.


Of Evidence.

[book VI.

As to the
mode of in-
in evidence.


If there be
any probable
ground to sus^
poet that an
officer has im
properly ob-
tained a con-
fession, such
officer ought
to be called.

it does. You are bound to satisfy me that the confession which
you seek to use in evidence against the prisoner was not obtained
from him by improper means ; I am not satisfied of that:' and
the confession was rejected. (//)

For the purpose of introducing a confession in evidence, it is
unnecessary, in general, to do more than negative any promise or
inducement held out by the person to whom the confession was
made, (y) In a trial for murder, it was proposed to give in evi-
dence a statement of the prisoner, made in prison to a coroner, for
whom the prisoner had sent. It however appeared that, previous
to this time, Mr. Clifton, a magistrate, had had an interview with
the prisoner, and it was suggested, on behalf of the prisoner, that
he might have told the prisoner that it would be better to confess,
and that, therefore, the counsel for the prosecution were bound to
call him. Littledale, J., ' As something might have passed between
the prisoner and Mr. Clifton respecting the confession, it would be
fair in the prosecutors to call him, but I will not compel them to
do so. However, if they will not call him, the prisoner may do so
if he chooses.' (w) So where a prisoner being in the custody of two
constables on a charge of arson, one Bullock went into the room,
and the prisoner immediately asked him to go into another room,
as he wished to speak to him, and they went into another room,
when the prisoner made a statement ; it was ui'ged that the con-
stables ought to be called to prove that they had done nothing to
induce the prisoner to confess. It was evident that the prisoner
acted under some influence, as he first proposed going into another
room ; and Rex v. Swatkins (x) was relied upon. Taunton, J., ' A
confession is presumed to be voluntary unless the contrary is
shown ; and as no threat or promise is proved to have been made
by the constables, it is not to be presumed.' Having consulted
Littledale, J., his lordship added, ' We do not think according to
the usual practice that w r e ought to exclude the evidence, because
a constable may have induced the prisoner to make the statement ;
otherwise we must in all cases call the magistrates and constables,
before whom or in whose custody the prisoner has been.'(/y)

But if there be any probable ground to suspect that an officer,
in whose custody a prisoner has previously been, has been guilty
of collusion in obtaining a confession, such suspicion ought to be
removed, in the first instance, by the prosecutor calling such
officer. Upon an indictment for arson, it appeared that a con-
stable, who was called to prove a confession, went into a room in
an inii, where he found the prisoner in the custody of another
constable, and as soon as he went into the room, the prisoner said
he wished to speak to him, and motioned the constable to leave
the room, which he did, and left them alone. The prisoner im-
mediately made a statement. The witness had not cautioned the
prisoner at all, and nothing had been said of what had passed
between the constable and the prisoner before the witness entered

(n) Reg. v. Warringliam, 2 Den. C. C. tbis case, ante, p. 383.

447. note.

Cm I Phill. Ev. 409.

(w) Rex v. Clewes, 4 C. & P. 22 1 . Tbe

(■'.uii-il t..r tbe prosecution declined to
call Kir. Clifton, and be was called and
examined by tbe prisoner's counsel. See

(.r) Infra,

(y) Rex v. Williams, Gloucester Spr.
Ass. 1832, MSS. 0. S. G. The statement
was rejected on another ground, bee
ante, p. 377.

chap. iv. § i.] Of Confessions and Admissions. 433

the room. It was contended that the other constable must be
called to show that he had used no inducement to make the pri-
soner confess. Patleson, J., 'I am inclined to think the con-
stable ought to he called. This is a peculiar case, and can never
be cited as an authority , except in cases where a man being in the
custody of one person, another who has nothing to do with the:
case comes in, and the prisoner motions the first to go away. I
think, as the witness did not caution the prisoner, it would be
unsafe to receive the statement. It would lead to collusion
between constables.' (z)

In order to induce the court to call another officer in whose It must appear
custody the prisoner had been, it must appear either that some either that
inducement had been used, or some express reference made to 8ome J niln " -
such officer. A prisoner, when before the committing magistrate, u . e d or some
having been duly cautioned, made a confession, in which he express rcfer-
alluded to a confession, which he had previously made to Wil- ence ™nst be
liams, a constable ; it was submitted that Williams ought to be officer, in
called to prove that he had not used any inducement. Little- order to make
dale, J., ' Although I do not think it necessary that a constable, lt in £ umbent
in whose custody a prisoner has been, should be called in every cutor to call"
case, yet as in this case there is a reference to the constable, I such officer,
think he ought to be called.' Williams was then called, and C a71 J
proved that he did not use any undue means to obtain a con-
fession ; but he had received the prisoner from Marsh, another
constable, and the prisoner had made some statement to Marsh.
It was then urged that Marsh should be called. Littledale, J.,
' I do not think it is necessary that a constable should be called,
unless it appear that some promise was given, or some express
reference was made to the constable. There was a distinct
reference made to Williams, and therefore I thought he must be
called ; but there is no reference to Marsh. It does not appear
either that any confession was made to Marsh. It only appears
that a statement was made ; that might be either a confession, a
denial, or an exculpation.' (a)

A confession is obviously not conclusive evidence against a pri- ^ f the effcct
BOner, and when it involves matter of law as well as matter of of confessions.
fact, is to be received with more than usual caution. (Z>) Thus
on an indictment for setting fire to a ship with intent to defraud

(s) Rex v. Swatkins, 4 C & P. 548, call Marsh, which was objected to as not

and MSS. C. S. G. It afterwards ap- being at the proper time, but Littledale,

1 eared that the prisoner had gone volun- J., said, 'It is much the more convenient

tarily before the magistrates at the inn, time to do to. It it should afterwards

and then ran away, was brought back by turn out that the confessions were in

the constable, and detained by him in consequence of what Marsh had said,

the room for the purpose of being a they must all be struck out, but it would

witness, and that he was not charged be v, ry difficult to do away with the

with the offence till after the statement impression they might have made on the

was made. Patteson, J., ' If he was not mind of the jury.' Marsh was then called

under any charge, that varies the case. for the prisoner, and proved that when

As he was at that time attending as a the prisoner was in his custody it was

witness, and was not in cu-tody on any not for the offence for which he was then

charge, I shall receive the statement in being tried. See this case, ante, p. 385.

evidence, without putting the prosecutor This case was tried at the same assizes as

to call the other constable.' Rex v. Williams, supra, but after that case

(u) Rex v. Warner and Morgan, Glou- had been tried. C. !S. G.

cester Spr. Ass. 1832, MSS. C. S. G. (6) 1 Phill. Ev. 401.
The prisoner's counsel then proposed to



"When; a con-
fess in has
been rightly
received on a
trial in the
first instance,
and it is
after wards
bh iwii that it
was unduly
obtained, and
yet such con-
fession is left
to ihe jury,
the conviction
of the prisoner
cannot be

Of Evidence. [book vr.

Grreenfell an 1 Eddy, being part-owners of the ship, a declaration of
theprisoner that Greenfell and E 1 ly were part-owners was received
in evidence; but it was objected that the hill of sale, under which
Lfelland Eddy claimed, was invalid in point of law ; and it was
held tint, it' by reas m of the invalidity of the document evidencing
the transfer of their shares, their legal title to them could not be
esl ibiished, the declaration of the prisoner could not be relied upon
fin- 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. (<7)

Upon an indictment for administering poison with intent to
murder, it appeared that the prisoner had given her mistress some
milk, in which a quantity of fag water had been mixed. Fag
water is a mixture of arsenic, soft soap, and water, used for dressing
sheep. In order to prove that the prisoner had put the fag water
in the milk, that she knew the nature of it, and intended to murder
her mistress, her own confession to Mr. Gilby, a medical man,
made in the presence of the prisoner's mistress and her husband,
was offered in evidence. Gilby swore that he did not tell the
prisoner that it would be better or worse for her to tell; that hi:
used no threats or promises, nor did any one else : before Gilby "s
arrival the prisoner had not made any confession, nor had any
threats or promises been held out to her. Patteson, J., admitted
the prisoner's statement to Gilby, who said, 'I asked her if she
had given the woman anything in her milk ; she said she had
mixed fag water with the milk ; she had put in half a teacupful.
I asked her if she was aware of the nature of it; she said she
knew it was poison ; she thought it would kill the woman ; she
had done it to be released from her service.' A woman was then
called who was present at this conversation, and she swore that
Gilby told the prisoner, in the presence of her mistress and her
husband, that it would be better for her to speak the truth. She
could not tell whether he had told her so before he asked her
what she had done ; but it was before she answered. Gilby, being
recalled, said, ' I could not positively swear that I did not tell the
prisoner that it would be better for her to tell the truth ; I don't
recollect that I did. It is very likely I might tell her it would be
better for her to tell the truth.' The counsel for the prisoner
contended that the confession ought to be struck out of the judge's
notes, and not submitted to the jury; but after consulting Lord
Denman, ('. .1., Patteson, ,J., declined to strike out the evidence
of the confession, and put the whole to the jury, feeling that
it was impossible, after they had heard the confession, to ex-
pect that they could weigh and consider the other facts in the case
without reference to the confession ; and in truth those other facts
by themselves would not have warranted a conviction. The jury
convicted, and upon a case reserved upon the question whether
the righi course had been pursued, Patteson, J., said, 'I think if
it had appeared in the firsl instance thai the medical man had used
ihe words '"it would he better for you to speak the truth," I should

CO Rex v. Philp, R. & M. C. C.


(V) A non vinous, .3 Stark,
note O ), <•(//. Le Blanc, J.

Ev. 894,

chap. iv. § i.] Of Confessions and Admissions. 435

have excluded the evidence of the confession. The only question
is, whether, when that evidence had been properly admitted, which
was the case here, I ought to have struck it out of'iny notes, after
proof* that the confession was not voluntary. The prisoner was
certainly bound to show that it was not so; but that, being proved
by the second witness, I think I should have treated the evidence
of the confession as though it had been inadmissible in the first
instance.' Pollock, C. B., ' We are all of opinion that the con-
viction cannot be sustained.' (e)

As analogous to the former part of this section, concerning Acts and de-
admissions and confessions by the defendant himself, it may be clarations of
proper in this place to mention the subject of acts and declara- ?° cons J Jira "
tions 01 co-conspirators and ot agents. How tar the acts and agents.
words of one conspirator are evidence against the others, has
already been mentioned in a former part of this work. (/) With Agent of de-
respect to the statements and acts of agents, it was decided, on Uj,ltla!1 t-
the impeachment of Lord Melville, by the House of Lords, that
a receipt given in the regular and official form by Mr. Douglas
(who, it was proved, had been appointed by Lord Melville to be his
attorney, to transact the business of his office of treasurer of the
navy, and to receive all necessary sums of money, and to sign
receipts for the same), was admissible in evidence against Lord [872]
Melville, to establish this single fact, that a person appointed by
him, as his paymaster, did receive from the Exchequer a certain
sum of money in the ordinary course of business, (g) In the
Queen's c.ase,(li) it was said by Abbott, C. J., in delivering the
opinion of the judges, that it would not be allowable on the part
of the prosecution to give evidence that an agent, who had been
proved to have been employed by the defendant to procure evi-
dence for the defence, but who had not been examined as a wit-
ness, offered a bribe to some third person, who also had not been
examined. This was not the epiestion proposed by the House of
Lords to the judges, but the converse of it, considered by the
chief justice, for the purpose of showing the grounds of the
determination of the judges. The actual question proposed for Agent of pro-
their consideration was, as to the competency of proving, on the seuutor -
trial of a criminal prosecution, certain acts supposed to have been

(e) Reg. t>. Garner, 1 Den. C. C 329, 2 hardly in any case be fairly tried, how-

0. &K 920. All that is reported to have ever much the judge may endeavour to

fallen from the judges on the point is induce the jury to throw the confession

stated, because in the marginal note in out of their consideration, and it deserves

Den. C. C. it is stated to have been held, consideration whether, in order to prevent

'that although the confession was rightly the injury that might thus arise to a pri-

admitt'd by tha judge in the first instance, soner. the judge would not be well war-

and taken down by him as evidence, ranted in discharging the jury, in order

it should be struck out of his notes after that the prisoner might be tried by

proof by the prisoner that it had been another jury. Newton's case, 13 Q. B.

made under the above inducement.' It 7 1 G. It might be well in such a case to

is plain that the decision only warrants ask the prisoner, whether he wished the

the marginal note I have above inserted, jury to be discharged on that ground,

especially as the evidence besides the and to discharge the jury upon his de-

conlession would not have warranted a siring it.

conviction, and therefore was not enough (/) Ante, p. 161. See also 2 Stark,

to go to the jury. The marginal note Ev. tit. Conspiracy.

in C. & K. is equally erroneous. Where (g) 29 How. St. Tr. 746. 1 Phill. Ev.

a jury have heard a confession proved, 386.

which afterwards turns out to have been (//) 2 Brod. & Bing. 302.
improperly obtained, the prisoner can

F f 2


Of Evidence.

[book VI.

Acts of


done by the agent of the prosecutor. And they determined that
similar proof, as to the conduct of the prosecutor's agent in offer-
ing a bribe, was inadmissible. The question, the Lord Chief
Justice observed, regarded the act of an agent addressed to a
person aot examined as a witness in support of the indictment,

Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 3) → online text (page 73 of 146)