said, "I believe witnesses have very often been called, that have declared they have been perjured in other instances; but I will never admit or suffer a person, that will say they have been perjured in another affair, and I knew it before they were sent for. When she (i.e. the witness) swears true I cannot tell; but that he has sworn false once, I must know." On counsel observing that in the case of subornation of perjury, such were admitted every day, Legge, B., answered, "they are admitted, but it goes much to their credit." The recorder (Moreton) expressed a similar opinion, and referred to the case of Titus Oates. It is very difficult indeed to see a distinction in this respect between perjury and subornation—why an avowal of perjury on a former occasion should be an objection to competency in the one case, and only to credit in the other. The maxim in question was cited by Lord Mansfield as a maxim of the civil law in Walton v. Shelley (n), in 1786, which case was afterwards overruled (o), and has likewise been referred to in some others (p), the decisions in all of which that can be supported would stand very well without it—most, if not all, proceeding on the unimpeachable principle that a man shall not be allowed to take advantage of his own wrong (q). § 528. The modern authorities completely negative the existence of any such rule, so far as witnesses are concerned. It is now undoubted law that a witness, although not always bound to answer them, may be asked questions tending to criminate, injure, or degrade him (r). So, it is the constant practice in criminal cases to receive the evidence of accomplices, who depose to (n) 1 T. R. 296. (0) Jordaine v. Lashbrook, 7 T. R. 601. (p) Gibson v. Minet, 1 H. Bl. 597, per Gould, J.; Findon v. Parker, 7 Jurist, 907; Steadman v. Duhamel, 1 C. B. 889; Mann v. (r) See supra, Part, 2, chap. 1, sect. 1. their own guilt as well as to that of the accused; and it is not even indispensable, although customary and advisable, that some material part of the story told by the accomplice be corroborated by untainted evidence (s). The cases of Titus Oates and Elizabeth Canning, the chief authorities in favour of the maxim, were expressly overruled by the Court of King's Bench in R. v. Teal(t). That was a prosecution against Thomas Teal, Hannah S. and others for conspiring falsely to charge the prosecutor with being the father of a bastard child of Hannah S. A nolle prosequi having been entered as to Hannah S., she was examined as a witness to prove that she had, at the instigation of the defendant Teal, foresworn herself in deposing that the prosecutor was father of the child. A new trial being moved for on the ground that she was an incompetent witness, the cases of Oates and Canning were relied on; as also the argument that a person who admits himself to be an infidel is disqualified from giving evidence. The court however took a different view; and Lord Ellenborough, C. J., said, "An infidel cannot admit the obligation of an oath at all, and cannot therefore give evidence under the sanction of it. But though a person may be proved on his own shewing, or by other evidence, to have foresworn himself as to a particular fact, it does not follow that he can never afterwards feel the obligation of an oath; though it may be a good reason for the jury, if satisfied that he had sworn falsely on the particular point, to discredit his evidence altogether. But still that would be no warrant for the rejection of the evidence by the judge; it only goes to the credit of the witness, on which the jury are to decide.” In the subsequent case also of Rands v. Thomas (u), which was an action for goods furnished to a ship, the plaintiff, in order to shew the defendant a part-owner, (s) Part 2, ch. 1, sect. 2, § 167. (t) 11 East, 307. proved that his name was upon the register as such, and Self-disserving statements in criminal cases. SECTION III. SELF-DISSERVING STATEMENTS IN CRIMINAL CASES. § 529. We come, lastly, to self-disserving statements in criminal cases; or, as they are more usually termed, "confessions." In treating this subject, we propose to consider, 1. Estoppels in criminal cases. 2. The admissibility and effect of extra-judicial cri- 3. Infirmative hypotheses affecting self-criminative SUB-SECTION I. ESTOPPELS IN CRIMINAL CASES. criminal cases. 1. Judicial con § 530. In this branch of the law there are, for ob- Estoppels in viously just reasons, few estoppels. The first and most important is the estoppel by judicial confession. It may fession. be taken as a rule of universal jurisprudence, that a confession of guilt, made by an accused person to a judicial tribunal, having jurisdiction to condemn or acquit him, is sufficient to found a conviction (2), even if to be followed by a sentence of death; such being deliberately made, under the deepest solemnities, oftentimes with the advice of counsel, and always under the protecting caution and oversight of the judge (a). "Confessus in judicio pro judicato habetur, et quodammodo suâ sententiâ damnatur (b)." "Confessio facta in judicio omni probatione major est (c)." "Confessio in judicio est plena probatio (d)." Still, if the confession appears incredible, or the accused has any object in making a false one, or any illegal inducement to confess has been held out to him, or the confession is made under any sort of delusion, or through fear and simplicity (e), the judge ought not to receive it. So, if the offence (z) 1 Greenl. Ev. §216, 4th Ed.; Tayl. Ev. § 626; Dig. lib. 42, tit. 2; Cod. lib. 7, tit. 59; Mascard. de Prob. Concl. 344, 345; Ayilffe, Parerg. Jur. Can. Angl. 545; 2 Hagg. Cons. R. 315; Poth. Obl. § 798. (a) Greenl. in loc. cit. (b) 11 Co. 30 a. Acc. Cod. (c) Jenk. Cent. 2, Cas. 99. 2. Pleading. 3. Collateral matters. charged be one of the class denominated "delicta facti permanentis," and no other indication of a corpus delicti can be found (f), &c. The many instances which have occurred of the falsity of confessions, judicial as well as extra-judicial, fully justify this course (g), traces of which are visible very early in our legal history (h). In ordinary practice a plea of guilty is never recorded by our English judges, at least in serious cases, without first solemnly warning the accused that it will not entitle him either to mercy or a mitigated sentence, and freely offering him leave to retract it and plead not guilty (i). § 531. 2. An accused person must plead the different kinds of pleas in their regular order by pleading in bar he loses his right to plead in abatement, &c. (k). 3. He may be estopped by various collateral matters which do not appear on record. Thus he cannot challenge a juror after he has been sworn (7), unless it be for cause arising afterwards (m); if he challenges a juror for cause he must shew all his causes together (n); and on a trial for high treason, if he means to object to a witness as misdescribed in the list of witnesses delivered under the 7 Ann. c. 21, and 6 Geo. IV. c. 50, he must take the objection on the voir dire, as it comes too late after the witness has been sworn in chief (o). In the case of R. v. Frost (p), which was an indictment for high treason, where the list of witnesses required by those statutes was not delivered in the manner therein prescribed, i. e. simultaneously with the copy of the indictment and jury panel; it was held, by nine judges against six, on a case (f) See supra, ch. 1, sect. 3, (i) 2 Hale, P. C. 225. (k) 2 Hale, P. C. 175; Cook's case, 5 Ho. St. Tr. 1143. (n) 2 Hale, P. C. 274. |