SECTION II. Confessions. The confessions of prisoners are received in evidence upon the same principle upon which admissions in civil suits are received, viz. the presumption that a person will not make an untrue statement militating against his own interest. In criminal cases, a confession in civil suits, carries with it a greater probability of truth than a confession, the consequences being more serious and highly penal: "habemus optimum testem, confitentem reum." (1) But it is to be observed, there may not unfrequently be motives of hope and fear inducing a person to make an untrue confession, which seldom operate in the case of admissions. (2) And, further, in consequence of the universal eagerness and zeal which prevail, for the detection of guilt, when offences occur of an aggravated character, in consequence also of the necessity of using testimony of suspicious witnesses for the discovery of secret crimes, the evidence of confessions is subject, in a very remarkable degree, to the imperfections attaching generally to hearsay evidence. (3) For these reasons, the statements of prisoners are often excluded (1) Confessions have been treated as the highest and most satisfactory evidence of guilt. Grose, J., delivering the opinion of the Judges in Lambe's case, 2 Leach, 554, Gilb. Ev. 137, Warickshall's case, 1 Leach, 263. (2) Foster's Discourses, 243; 4 Bl. Comm. 357. Instances have occurred, of persons confessing themselves guilty of crimes of which they were innocent, and of their acting, whilst under the imputation of crimes, in a manner affording a strong presumption of guilt. See case of Mr. Harrison, cited 1 Leach, 264, n. A case mentioned by Lord Hale, in his Pl. Cr. See also the Confessions of Witches, 2 Howell, 1049; 4 Howell, 817; 6 Howell, 647. The Suffolk Witches tried by Lord Hale, 8 Howell, 1017. (3) Foster's Disc. 243, where it is observed, that words in criminal cases are often misreported through ignorance, inattention, or malice, and extremely liable to misconstruction, and that the evidence cannot be disproved by negative evidence, in the same manner as facts. Speech of Mr. Adam, in Crossfield's trial for High Treason, 26 Howell, 57, where it is observed, that the person relating the confession is generally relieved from the apprehension of punishment, and that what people have said upon a subject shocking or otherwise exciting, is usually repeated with exaggeration. And see per Alderson, B., in Rex v. Simons, 6 C. & P. 540, where a prisoner's conversation with his wife was repeated differently by the witnesses. Examinations. Whole con fession. from being given in evidence, in cases where they would be unobjectionable as the admissions of a party to a civil suit. Confessions of prisoners are often made in the course of their examination before magistrates. These examinations are taken in the course of a judicial proceeding, and according to prescribed forms; consequently the evidence of confessions contained in them is obviously free from many of the objections incident to various other species of hearsay evidence. As the principles applicable to confessions in general apply to such as are contained in examinations before magistrates, it has not been thought expedient to treat of examinations apart from the general subject. A more particular account of such examinations, and the mode of proving them, will be found in the second part of the Work, which however, is unavoidably anticipated in some measure in the present section. Various points also, as to the verbal proof of confessions made in the presence of magistrates, will be considered in the chapter on Secondary Evidence. As we have had occasion to observe in treating of admissions, it is necessary that the whole of what a prisoner has said, on the occasion of making a confession, should be related entire. This rule did not prevail in early times, when it was usual, in state trials, to select arbitrarily from a prisoner's examination any part that might be prejudicial to him, though the whole examination, if taken together, might have had a different effect. (1) We have seen that the rule laid down in the Queen's case, (2) respecting admissions and confessions, requires not only that those parts of a conversation (1) See, amongst many other instances, the declaration of Garnet, in his handwriting, read upon his trial for the Gunpowder Plot. In the original confession, in the State Paper Office, there are letters in Sir E. Coke's handwriting, pointing out to the officer of the Court what he was to read, and which produce quite a different effect from that of the whole declaration taken together. Jardine's Criminal Trials, vol. ii, p. 357. (2) 2 Br. & B. 298. The ground assigned by Lord Tenterden, that it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue, seems open to exception, vide supra, On Admis sions. favorable to should be received which explain or qualify the language of a confession, but such also as are not connected with the confession, provided they relate to the subject matter of the charge. Though it may, in strictness, be doubted, whether there Effect of parts is sufficient reason for admitting the statements of a prisoner, prisoner. for the purpose of proving facts in his favor, without reference to their effect in explaining or qualifying his confession, yet in practice such statements are commonly received for that purpose. It has been held, that the reading of a prisoner's statement, at the end of depositions taken before a magistrate, does not in general give the prisoner a right to consider the depositions as given in evidence on the part of the prosecution, unless the statement specifically applies to and is essentially connected with any of the previous depositions. (1) With respect to the effect of what the prisoner may have said favorable to himself, at the time of making a confession, it is conceived that the same rule prevails as in the case of admissions, and that a jury may believe one part of the prisoner's statements and disbelieve another. Thus, where a prisoner was indicted for stealing a piece of cloth, and it was proved that he had sold it, very soon after it was lost, at a place distant from the residence of the prosecutor, and the prisoner's examination was given in evidence, in which he stated that the cloth was honestly bought and paid for, Mr. Justice Parke observed, "that in consequence of the prosecutor using what the prisoner had said as part of his evidence, it became evidence for the prisoner as well as against him, but still it was like all evidence given in any case, and it was for the jury to say, whether they believed it." (2) (1) Rex v. Pearson, 7 C. & P. 671. An example is put of specific reference, as where a prisoner states, that what a particular witness has deposed to is true. (2) Rex v. Higgins, 3 C. & P. 604. The prisoner was found guilty. The statement might have been adduced by the prosecutor for the purpose of identifying the prisoner, Demeanor. It has been supposed, that where a prosecutor uses a prisoner's statement, he gives to the parts favorable to the prisoner more weight than would properly belong to a party's assertion of his own innocence, and that the facts, contained in such favorable part of the prisoner's statement, are to be considered as established until disproved. (1) It may be doubted, however, whether these opinions are well founded, when it is considered that the original object of introducing the whole of a prisoner's statement is merely to guard against any misapprehension of the prisoner's meaning, in the terms which he has used to confess himself guilty of a crime. It is clearly competent for the prosecutor to contradict the parts of a prisoner's statement which are favorable to him. (2) Analogous to similar cases of admissions, a confession may be collected or inferred from the conduct and demeanor of a prisoner on hearing a statement affecting himself. (3) As such statements frequently contain much hearsay and other objectionable evidence, and as the demeanor of a person upon hearing a criminal charge against himself is liable to great misconstruction, evidence of this description ought to be regarded with much caution. It has been decided, that the deposition of a witness, or the examination of another prisoner, taken in a criminal case before a magistrate, is not admissible in evidence merely because the party affected by it was present, or might have had an opportunity of crossexamining or of commenting on the evidence. The party is prevented from interposing at his will and pleasure, and, therefore, the same inference ought not to be drawn from his silence tions will arise, according as there (1) In Jones's case, 2 C. & P. lar opinion appears to have been expressed by Littledale, J., in Rex v. Clewes, 4 C. & P. 226. (2) Per Bosanquet. Jones's case, 2 C. & P. 629. (3) Such evidence is admissible, though the statement be made in the presence of the prisoner by his wife, and whether he makes answer or not. Rex v. Bartleet, 7 C. & P. 832. Rex v. Smithies, 5 C. & P. 332. or his demeanor, as is frequently done in the case of conver sations. (1) A prisoner's confession is sufficient ground to warrant a con- Effect of conviction, although there is no other proof of his having committed fession. the offence with which he is charged. And it appears, from several cases, that his confession may, in some instances, even supply the absence of all proof as to the fact of the commission of the offence charged. (2) But a confession is obviously not conclusive evidence against a prisoner, and when it involves matter of law, is to be received with more than usual caution. (3) fession. It has been considered necessary in all cases, previous to re- Voluntary conceiving a confession in evidence, to inquire whether it has been voluntary. The usual questions are, whether the prisoner has been told, that it would be better for him to confess, or worse for him if he did not confess, or whether any language to that effect has been used. The presumption of the truth of the statement is supposed to cease, when there is ground to apprehend that it may have been wrung from a timid and apprehensive mind, deluded by promises of safety, or subdued by threats of violence or punishment. (4) This, as was before observed, is a suppo (1) Appleby's case, 3 St. 33. Melen v. Andrews, M. & M. 336. Turner's case, 1 Mo. Cr. C. 347. The case of Rex v. Edmunds, 6 C. & P. 164, seems of doubtful authority. There, Tindal, Ch. J., received a statement upon oath, made on the occasion of a summary conviction in the presence of a pri soner. (2) In Rex v. Eldridge, R. & R. Cr. Ca. 440, the Court thought there was sufficient evidence to confirm the confession. In Rex v. Falkner, R. & R. Cr. Ca. 481, the only other evidence was, that the prisoner had sent a message to the party alleged to have been robbed, and who did not appear, to prevent his appearance. In Rex v. White, R. & R. Cr. Ca. 508. Rex v. Tippet, ibid. 509, no person could swear that the property (which was oats) had been actually (3) Vide supra, Admissions of (4) The rule extends to all state |