mind at the time of the statement, but that if the mistress had not been then present, it might have been otherwise. Hewett's case, 1 Carr. & M. 534.d Where the inducement to confess has proceeded from third parties, in the presence of persons having authority.] A confession made on an inducement held out by a person without authority, but in the presence of a party who has authority, and who gives no caution and expresses no dissent, would appear to be inadmissible in evidence. Where it appeared, that the constable had taken the prisoner to a public house, and the latter, in consequence of the inducements held out by the innkeeper, made a confession to him, in the presence of the constable, who did not caution the prisoner in any way; Alderson, B., expressed a very strong opinion against its admissibility; but as there were opinions, which he was bound to respect, opposed to his own, his lordship thought he had better receive the evidence, and, if necessary, reserve the point for the consideration of the judges. The prisoner was acquitted. Pountney's case, 7 C. & P. 302. In Sarah Taylor's case, 8 C. & P. 733, the prisoner, a female servant, was sent for into the parlour, where a person not in authority, in the presence of the prosecutor's wife, held out an inducement to the prisoner to confess, the wife expressing no dissent. Patteson, J., said, that the inducement must be taken as if held out by the prosecutor's wife, who was a person in authority over the prisoner, and that therefore the evidence was inadmissible. Where the inducement to confess has proceeded from persons having no authority.] Until recently, it was a matter of doubt whether a confession is receivable in evidence, where the promise or threat proceeds from a person who has no power to enforce it, and who possesses no control over the prisoner. (1) Where some neighbours, who had nothing to do with the apprehension, prosecution, or examination of a prisoner, officiously interfered and admonished him to tell the truth and consider his family, and no answer was made either by the constable or the prisoner, but the latter, an hour afterwards, confessed to the constable in prison; the confession was held by the judges to be admissible, because the advice to confess was not given or sanctioned by any person that had any concern in the business. Row's case, Russ. & Ry. 153; Phill. Ev. 428, 8th ed. S. C. So where the counsel for a prisoner objected to the admissibility of a confession made before a committing magistrate, and offered 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; Wood, B., overruled the objection, and admitted the confession. Hardwicke's case, Nott. Lent Ass. 1811; Phill. Ev. 429. And where a witness stated that he had held out no threat or promise to induce the prisoner to confess, but that a woman who was present said, that she had told the prisoner that she had better tell all, upon which the *prisoner made certain confessions to [ *47 ] the witness; Parke, J., after consulting with Hullock, B., ruled, that as no inducement had been held out by the witness, to whom the confession was made; and as the only inducement had been held out by a person having no sort of authority, it must be presumed that the confession to the witness was free and voluntary. If the promise had been held out by any person having any office or authority, as the prosecutor, constable, &c., the case would be different; but here a person (1) Case of Thorn et al. 4 Rogers's Rec. 81. Eng. C. L. Reps. xli. 291. • Id. xxxii. 516. Id. xxxiv. 608. 1 Eng. C. C. 153. having no authority of any sort, officiously says, "You had better confess;" no confession follows, but sometime afterwards the prisoner, without any inducement held out, confesses to another person. Gibbon's case, 1 C. & P. 87. So where it appeared that the prisoner was told by a man, that another prisoner had told all, and that he had better do the same to save his neck; upon which he confessed to the constable; Hullock, B., held, that 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 evidence. Tyler's case, 1 C. & P. 129.i It is to be observed, that in the above cases the confessions were not to the same parties by whom the promises were held out, and that although in Row's case the constable was present when the inducements were made to the prisoner, the latter did not confess to him until a subsequent period. Where a prisoner is induced to confess to a third party, in the presence of a constable, who does not caution him in any way, it would seem that the prisoner's confession is not receivable in evidence. See Pountney's case, and Sarah Taylor's case, ante, p. 46. In Dunn's case, 4 C. & P. 543, Mr. Justice Bosanquet is reported to have said that "any (but see now Sarah Taylor's case, infra,) person telling a prisoner that it will be better for him to confess, will always exclude any confession made to that person. Whether a prisoner having been told by one person, that it will be better for him to confess, will exclude a confession subsequently made to another person, is very often a nice question, but it will always exclude a statement made to the same person." If after the promise has been made, circumstances should take place, which induce a presumption that a subsequent confession has not been made under the influence of such promise, there appears to be no reason for rejecting the confession, because the person to whom it is made is the same to whom the former confession was also made. In Spencer's case, 7 C. & P. 776, Parke, B., stated that there was a difference of opinion among the judges, whether a confession made to a person who has no authority, after an inducement held out by that person, can be given in evidence; and the learned judge intended, had the evidence been pressed, to have received it, and reserved the point. But on the last-mentioned case being cited in Sarah Taylor's case, 8 C. & P. 733, Patteson, J., said "It is 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." Confessions obtained by artifice or deception, admissible.] Where a confession [48] has been obtained by artifice, or deception, but without the *use of promises or threats, it is admissible. Thus it has been held, that it is no objection that the confession was made under a mistaken supposition that some of the prisoner's accomplices were in custody; and even though some artifice has been used to draw him into that supposition. Burley's case, East. T. 1818; Phill. Ev. 427, 8th ed., 406, 9th ed. So where a prisoner asked the turnkey if he would put a letter into the post, and on receiving a promise that he would do so, gave him the letter which was detained by the turnkey, and given in evidence as a confession at the trial; Garrow, B., received the evidence. Derrington's case, 2 C. & P. 418. So where a person took an oath that he would not mention what the prisoner told him; Shaw's case, 6 C. & P. 373;m and where a witnesss promised that b Eng. C. L. Rep. xi. 327. Id. 343. i Id. xix. 518. * Id. xxxii. 731. Id. xix. 199. m Id. xxv. 443 what the prisoner said should go no further; Thomas's case, 7 C. & P. 345.a Also where a constable, in order to extract a confession, assumed the prisoner's guilt, and asked how she came to poison her uncle, the confession in answer was received. Per Littledale, J., Warwick Assizes. 1 Phill. Ev. 427, 8th ed., 406, 9th ed. It appeared that one of the prisoners had made a statement to a constable in whose custody he was, but that he was drunk at the time; and it was imputed that the constable had given him liquor to cause him to be so. On its being objected that what a prisoner said under such circumstances was not receivable in evidence, Coleridge, J., said, "I am of opinion that a statement being made by a prisoner while he was drunk is not therefore 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 such statement when it is considered by the jury." Spilsbury's case, 7 C. & P. 187.o Confessions obtained by questioning, admissible.] A confession is admissible in evidence where it has been elicited by questions put by a person having no authority. Wild's case, 1 Moo. C. C. 452, ante, p. 42. So where the party asking him is a police officer; Thornton's case, 1 Moo. C. C. 27;4 ante, p. 41, 2. See also case at Warwick Assizes, supra. But the practice is reprobated by most of the judges; and in a recent case where it appeared that the constable was in the practice of interrogating prisoners in his custody, Patteson, J., threatened to cause him to be dismissed from his office. Hill's case, Liverpool Spring Assizes, 1838, MS. See also Kerr's case, 8 C. & P. 176.* Where a constable on apprehending the prisoner, asked him what he had done with the stolen property, and said, "you had better not add a lie to the crime of theft," Gaselee, J., refused to receive the confession made by the prisoner under such circumstances. Shepherd's case, 7 C. & P. 579.* Must be voluntary-cases where witnesses have made statements, and afterwards have themselves been tried for the offence.] A question sometimes arises whether a statement which has been made by a party upon his examination as a witness, can be given in evidence against him, if he should himself be put upon his trial for the same offence. The general rule is, that admissions made under compulsory process are evidence against the party. Rosc. Dig. Ev. N. P. 36. So it is said by Mr. Starkie, that when a witness answers questions upon his examination on a trial tending to criminate himself, and to *which he might have demurred, his [ *49] answers may be used for all purposes. 2 Stark. Ev. 28, 2d ed. Thus upon an indictment against a magistrate for misconduct in his office, Lord Tenterden, (then Mr. J. Abbott,) permitted evidence to be given of what he had said upon his examination before a committee of the House of Commons, although it was objected that as that examination was compulsory, his admission could not be voluntary. Merceron's case, 2 Stark. N. P. 366. But see Gilham's case, 1 Moo. C. C. 203," where Lord Tenterden, C. J., said, that he thought there must be some mistake in the above case, and that the evidence must have been given without oath, and before a committee of inquiry where the witness would not be bound to answer. Where a person was brought up as a witness on an inquiry respecting a fire, but attempting to run away, was detained by a constable; a statement made by him to the constable was received in evidence against him, upon an indictment afterwards preferred Eng. Com. Law Reps. vol. xxxii. 536. • Id. xxxii. 487. P 2 Eng. C. C. 452. a Id. 27. Eng. Com. Law Reps. vol. xxxiv. 341. Id. xxxii. 689. Id. iii. 385. " 2 Eng. C. C. 203. against him for the arson, and he was convicted and executed. Swatkins' case, 4 C. & P. 548. So where the prisoner had made a statement upon oath at a time when he was not under any suspicion, Vaughan, B., thought it was receivable in evidence. Tubby's case, 5 C. & P. 530. But in another case, where the prisoner had been examined on oath as a witness, touching a charge of poisoning, and at the conclusion of the examination was herself committed for trial on the charge; upon her deposition being tendered in evidence as a confession, Gurney, B., is reported to have said, "This being a deposition made by the prisoner at the same time as all the other depositions, on which she was committed, and on the very same day on which she was committed, I do not think the examination was perfectly voluntary." Lewis's case, 6 C. & P. 161. So where one of the prisoners was examined as a witness against the other before the magistrate, and before being examined was committed for trial; Gurney, B., held, that what she said before the magistrate as a witness, could not be given in evidence against her upon the criminal charge. Davis's case, 6 C. & P. 117. Also where on an indictment for murder, it was opened that the only evidence to affect the prisoner, was a statement made by him before the coroner at the inquest, which purported on the face of it to have been taken on oath, but had not been so taken in fact, Alderson B., rejected it, observing, "As this statement purports to be a statement on oath, I cannot receive it as evidence against the prisoner; and I think, as it so purports, I cannot allow parol evidence to be given to show that the statement was not made upon oath." Wheeley's case, 8 C. & P. 250. In Owen's case, 9 C. & P. 83,a which was a charge of rape, upon the depositions of the prisoners, taken on oath before the coroner, and while they were in custody, being offered in evidence; Williams, J., received them, and reserved the point. The prisoners, however, were acquitted. Being subsequently tried for the murder of the same party before Gurney, B., that learned judge rejected the depositions. 9 C. & P. 239. These latter decisions are at variance with other cases. Where a prisoner, indicted for murder, had been examined upon oath before the coroner on a charge against another person, Parke, J., received evidence of the examination as a confession; observing, that upon that, as upon every other occasion, the prisoner might have [*50] refused to answer any questions having a tendency to expose him to a criminal charge, and not having done so, his examination was evidence against him. Howarth's case, Greenwood's Col. Stat. 138(n); 4 C. & P. 254. So on an indictment for murder where the female prisoner had been examined on oath before the coroner (another party being then in custody upon the charge); Erskine, J., received her deposition in evidence against her, but reserved the point. The prisoner, however, was acquitted. Sandy's case, 1 Carr. & M. 347. The prisoner was indicted for forgery, and it was proposed to give in evidence against him his examination on oath before commissioners of bankrupt. For the prisoner it was contended, that it could not be received, the examination being compulsory, and that if a party refused to answer the questions put to him he was liable to be sent to prison under the authority of the 6 Geo. 4, c. 16, s. 36. Coleridge, J., received the evidence, and the prisoner was found guilty. The point was reserved for the opinion of the judges, who held that the evidence was admissible. Wheater's case, 2 Lewin, C. C. 157,2 Moo. C. C. 45. In Britton's case, 1 Moo. & R. 297, which has sometimes been cited on this point, Patteson, J., after consulting Alderson, J., held, that the balancesheet of a bankrupt given on oath under his commission, was not admissible on an indictment against him for concealing his effects; but in Wheater's case, 2 Moo. C. C. 15, Eng. Com. Law Reps. vol. xix. 523. Id. xxiv. 441. * Id. xxv. 333. * Id. xxv. 341. 4 Id. xli. 191. Patteson, J., stated that the ground of that decision was, that the balance-sheet could not be given in evidence, unless there was a valid commission, and, therefore, the balance-sheet, being part of the proceedings, could not be put in evidence to prove the petitioning creditor's debt as a part of the commission. Mr. Phillipps in his last edition, after referring to most of the foregoing decisions, seems to draw a distinction, between the case where the prisoner is in custody, or is under suspicion, and where he is examined against another party on a distinct charge; and adds, that "it may be laid down generally (citing Wheater's case, among others, for the position,) that a statement upon oath by a person, not being a prisoner, and when no suspicion is attached to him, the statement not being compulsory nor made in pursuance of any promise of favour, is admissible in evidence against him on a criminal charge." 1 Phil. Ev. 404. It may be observed, however, that in none of the recent cases has this distinction been adverted to as the ground of decision. In Owen's case, 9 C. & P. 238, which is the most recent authority in which the statement of a prisoner on oath has been rejected. Gurney, B., after referring to Wheater's case, supra, says, "I confess I do not, in principle, see the distinction between that and some of the other cases." The ground on which a deposition upon oath by a prisoner has generally been considered to be inadmissible, without reference to the circumstances under which it is made, is, that being upon oath it cannot be looked upon as a voluntary statement, although it undoubtedly strengthens the objection to such a deposition that the party is in custody or under suspicion at the time. The examination of persons under compulsory process are prohibited from being given in evidence against them, upon an indictment for stealing a will or a writing relating to real estate, under 7 & 8 Geo. 4, c. 29, ss. 22, 23, 24. * Must be voluntary-evidence of facts, the knowledge of which has been [*51] obtained by improper confessions, admissible.] Although a confession obtained by means of promises or threats, cannot be received, yet if, in consequence of that confession, certain facts, tending to establish the guilt of the prisoner are made known, evidence of those facts may be received. (1) "A fact," it is said by the court in Warickshall's case, 1 Leach, 264, "if it exists at all, must exist invariably in the same manner, whether the confession from which it is derived, be, in other respects, true or false. Facts thus obtained, however, must be fully and satisfactorily proved, without calling in the aid of any part of the confession, from which they have been derived." The same doctrine, viz., that no part whatever of the confession is to be received in evidence, was also laid down by Lord Eldon, in the case of Richard Harvey, at Bodmin Summer Assizes, 1800. His lordship said, that where the knowledge of any fact was obtained from a prisoner, under such a promise, as excluded the confession itself from being given in evidence, he should direct an acquittal, unless the fact itself proved, would have been sufficient to warrant a conviction without any confession leading to it. 2 East, P. C. 658. The rule, however, as above laid down appears to be too strict, and accordingly it is said in Butcher's case, 1 Leach, 265, (n.) that it should seem that so much of the confession as relates strictly to the fact discovered by it, may be given in evidence; for the reason of rejecting distorted confessions is the apprehension that the prisoner may have been thereby induced to say what is false, but the fact discovered shows that so much of the confession as immediately relates to it is true. (1) Commonwealth v. Knapp, 9 Pick. 496. But State v. Crank, 2 Bailey, 67. Jackson's case, 1 Rogers' Rec. 28. Case of Stage and al., 5 Id. 177. Eng. Com. Law Reps. xxxviii. 99. |