received in evidence to establish his guilt, provided no circu stance accompanies the making of it which should detract from ts weight in producing conviction.

But to make it admissible in any case it ought to appear that it was made voluntarily, and that no motives of hope or fear were employed to induce the accused to confess. The evidence ought to be clear and satisfactory that the prisoner was neither threatened nor cajoled into admitting what very possibly was untrue. Under the excitement of a charge of crime, coolness and self-possession are to be looked for in very few persons; and however strongly we may reason with ourselves that no one will confess a heinous offence of which he is not guilty, the records of criminal courts bear abundant testimony to the contrary. If confessions could prove a crime beyond doubt, no act which was ever punished criminally would be better established than witchcraft; and the judicial executions which have been justified by such confessions ought to constitute a solemn warning against the too ready reliance upon confessions as proof of guilt in any case. As "Mr. Justice Parke several times observed" while holding one of his circuits, "too great weight ought not to be attached to evidence of what a party has been supposed to have said, as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say.”2 And when the admission is full and positive, it perhaps quite as often happens that it has been made under the influence of the terrible fear excited by the charge, and in the hope that confession may

nesses to the same overt act, or on confession in open court. Const. of United States, art. 3, § 3.

See Mary Smith's Case, 2 Howell's State Trials, 1049; Case of Essex Witches, 4 ib. 817; Case of Suffolk Witches, 6 ib. 647; Case of Devon Witches, 8 ib. 1017. It is true that torture was employed freely in cases of alleged witchcraft, but the delusion was one which often seized upon the victims as well as their accusers, and led the former to freely confess the most monstrous and impossible actions. Much curious and valuable information on this subject may be found in "Superstition and Force," by Lea; "A Physician's Problems," by Elam; and Leckey, History of Rationalism.

Note to Earle v. Picken, 5 C. & P. 542. See also 1 Greenl. Ev. § 214, and note; Commonwealth v. Curtis, 97 Mass. 574; Derby v. Derby, 21 N. J Eq. 36.

ward* off some of the consequences likely to follow if guilt [* 315] were persistently denied.

A confession alone ought not to be sufficient evidence of the corpus delicti. There should be other proof that a crime has actually been committed; and the confession should only be allowed for the purpose of connecting the defendant with the offence.1 And if the party's hopes or fears are operated upon to induce him to make it, this fact will be sufficient to preclude the confession being received; the rule upon this subject being so strict that even saying to the prisoner it will be better for him to confess, has been decided to be a holding out of such inducements to confession, especially when said by a person having a prisoner in custody, as should render the statement obtained by means of it inadmissible.2 If, however, *statements have been made [* 316] before the confession, which were likely to do away with

1 In Stringfellow v. State, 26 Miss. 157, a confession of murder was held not sufficient to warrant conviction, unless the death of the person alleged to have been murdered was shown by other evidence. In People v. Hennessey, 15 Wend. 147, it was decided that a confession of embezzlement by a clerk would not warrant a conviction where that constituted the sole evidence that an embezzlement had been committed. So on an indictment for blasphemy, the admission by the defendant that he spoke the blasphemous charge, is not sufficient evidence of the uttering. People v. Porter, 2 Park. Cr. R. 14. And see State v. Guild, 5 Halst. 163; Long's Case, 1 Hayw. 524; People v. Lambert, 5 Mich. 349; Ruloff v. State, 18 N. Y. 179.

Rex v. Enoch, 5 C. & P. 539; State v. Bostick, 4 Harr. 563; Boyd v. State, 2 Humph. 390; Morehead v. State, 9 Humph. 635; Commonwealth v. Taylor, 5 Cush. 605; Rex v. Partridge, 7 C. & P. 551; Commonwealth v. Curtis, 97 Mass. 574; State v. Staley, 14 Minn. 105; Frain v. State, 40 Geo. 529; Austine v. State, 51 Ill. 236; People v. Phillips, 42 N. Y. 200; State v. Brockman, 46 Mo. 566. Mr. Phillips states the rule thus: "A promise of benefit or favor, or threat or intimation of disfavor, connected with the subject of the charge, held out by a person having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducements, either of hope or fear. The prosecutor, or prosecutor's wife or attorney, or the prisoner's master or mistress, or a constable, or a person assisting him in the apprehension or custody, or a magistrate acting in the business, or other magistrate, has been respectively looked upon as having authority in the matter; and the same principle applies if the principle has been held out by a person without authority, in the presence of a person who has such authority, and with his sanction, either express or implied." 1 Phil. Ev. by Cowen, Hill, and Edwards, 544, and cases cited. But we think the better reason is in favor of excluding confessions where inducements have been held out by any person, whether acting by authority or not. Rex v. Simpson, 1 Mood. C. C. 410; State v. Guild, 5 Halst. 163; Spears v. State, 2 Ohio, N. s.

the effect of the inducements, so that the accused cannot be supposed to have acted under their influence, the confession may be

583; Commonwealth v. Knapp, 9 Pick. 496; Rex v. Clewes, 4 C. & P. 221; Rex v. Kingston, ib. 387; Rex v. Dunn, ib. 543; Rex v. Walkley, 6 C. & P. 175; Rex v. Thomas, ib. 353. "The reason is, that in the agitation of mind in which the party charged is supposed to be, he is liable to be influenced by the hope of advantage or fear of injury to state things which are not true." Per Morton, J., in Commonwealth v. Knapp, 9 Pick. 496; People v. McMahon, 15 N. Y. 387. There are not wanting many opposing authorities, which proceed upon the idea, that "a promise made by an indifferent person, who interfered officiously without any kind of authority, and promised without the means of performance, can scarcely be deemed sufficient to produce any effect, even on the weakest mind, as an inducement to confess.". 1 Greenl. Ev. § 223. No supposition could be more fallacious; and in point of fact a case can scarcely occur in which some one, from age, superior wisdom or experience, or from his relations to the accused or to the prosecutor, would not be likely to exercise more influence upon his mind than some of the persons who are regarded as "in authority" under the rule as stated by Mr. Phillips. Mr. Greenleaf thinks that, while as a rule of law all confessions made to persons in authority should be rejected, "promises and threats by private persons, not being found so uniform in their operation, perhaps may, with more propriety, be treated as mixed questions of law and fact; the principle of law, that a confession must be voluntary, being strictly adhered to, and the question, whether the promises or threats of the private, individuals who employed them were sufficient to overcome the mind of the prisoner, being left to the discretion of the judge under all the circumstances of the case." 1 Greenl. Ev. § 223. This is a more reasonable rule than that which admits such confessions under all circumstances; but it is impossible for a judge to say whether inducements, in a particular case, have influenced the mind or not; if their nature were such that they were calculated to have that effect, it is safer, and more in accordance with the human principles of our criminal law, to presume, in favor of life and liberty, that the confessions were "forced from the mind by the flattery of hope, or by the torture of fear" (per Eyre, C. B., Warickshall's Case, 1 Leach, C. C. 299), and exclude them altogether. This whole subject is very fully considered in note to 2 Leading Criminal Cases, 182. And see Whart. Cr. Law, § 686 et seq. The cases of People v. McMahon, 15 N. Y. 385, and Commonwealth v. Curtis, 97 Mass. 574, have carefully considered the general subject. In the second of these, the prisoner had asked the officer who made the arrest, whether he had better plead guilty, and the officer had replied that "as a general thing it was better for a man who was guilty to plead guilty, for he got a lighter sentence." After this he made statements which were relied upon to prove guilt. These statements were not allowed to be given in evidence. Per Foster, J.: "There is no doubt that any inducement of temporal fear or favor coming from one in authority, which preceded and may have influenced a confession, will cause it to be rejected, unless the confession is made under such circumstances as to show that the influence of the inducement had passed away. No cases require more careful scrutiny than those of disclosures made by the party under arrest to

received in evidence; 1 but the showing ought to be very satisfactory on this point before the court should presume that the prisoner's hopes did not still cling to, or his fears dwell upon, the first inducements.2

Before prisoners were allowed the benefit of assistance from counsel on trials for high crimes, it was customary for them to make such statements as they saw fit concerning the charge against them, during the progress of the trial, or after the evidence for the prosecution was put in; and upon these statements the prosecuting officer or the court would sometimes ask questions, which the accused might answer or not at his option. And although this practice has now become obsolete, yet if the accused in any case should manage or assist in his own defence, and should claim the right of addressing the jury, it would be difficult to confine him to "the record as the counsel may be confined in his

argument. A disposition has been manifested of late to [* 317] allow the accused to give evidence in his own behalf; and

statutes to that effect are in existence in some of the States, the operation of which is believed to have been generally satisfactory.3 These statutes, however, cannot be so construed as to authorize compulsory process against an accused to compel him to disclose more than he chooses; they do not so far change the old system

the officer who has him in custody, and in none will slighter threats or promises of favor exclude the subsequent confessions. Commonwealth v. Taylor, 5 Cush. 610; Commonwealth v. Tuckerman, 10 Gray, 193; Commonwealth v. Morey, 1 Gray, 461. Saying to the prisoner that it will be the worse for him if he does not confess, or that it will be the better for him if he does, is sufficient to exclude the confession, according to constant experience.' 2 Hale, P. C. 659; 1 Greenl. Ev. § 219; 2 Bennett and Heard's Lead. Cr. Cas. 164. Each case depends largely on its own special circumstances. But we have before us an instance in which the officer actually held out to the defendant the hope and inducement of a lighter sentence if he pleaded guilty. And a determination to plead guilty at the trial, thus induced, would naturally lead to an immediate disclosure of guilt." And the court held it an unimportant circumstance that the advice of the officer was given at the request of the prisoner, instead of being volunteered.

State v. Guild, 5 Halst. 163; Commonwealth v. Harman, 4 Penn. St. 269; State v. Vaigneur, 5 Rich. 391; Rex v. Cooper, 5 C. & P. 535; Rex v. Howes, 6 C. & P. 404; Rex v. Richards, 5 C. & P. 318; Thompson v. Commonwealth, 20 Grat. 724.

See State v. Roberts, 1 Dev. 259; Rex v. Cooper, 5 C. & P. 535; Thompson v. Commonwealth, 20 Grat. 724; State v. Lowhorne, 66 N. C. 538. See American Law Register, Vol. V. (N. s.) pp. 129, 705.

as to establish an inquisitorial process for obtaining evida; they confer a privilege, which the defendant may use at his option; If he does not choose to avail himself of it, unfavorable inferences are not to be drawn to his prejudice from that circumstance;1 and if he does testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to make a full one, such weight as, under the circumstances, they think it entitled to; 2 otherwise the statute must have set aside and overruled the constitutional maxim which protects an accused

1 People v. Tyler, 36 Cal. 522; State v. Cameron, 40 Vt. 555. For a case resting upon an analogous principle, see Carne v. Litchfield, 2 Mich. 340. A different view would seem to be taken in Maine. See State v. Bartlett, 55 Me. 200. And see the next note. In Devries v. Phillips, 63 N. C. 53, the Supreme Court of North Carolina held it not admissible for counsel to comment to the jury on the fact that the opposite party did not come forward to be sworn as a witness as the statute permitted. See also Crandall v. People, 2 Lansing, 309. In Michigan the wife of an accused party may be sworn as a witness with his assent; but it has been held that his failure to call her was not to subject him to inferences of guilt, even though the case was such that if his defence was true, his wife must have been cognizant of the facts. Knowles v. People, 15 Mich. 408.

2

By a recent case this paragraph appears to have led to some misapprehension of our views, and consequently we must regard it as unfortunately worded. Nevertheless, after full consideration, it has been concluded to leave it as it stands. What we intend to affirm by it is, that the privilege to testify in his own behalf is one the accused may waive without justly subjecting himself to unfavorable comments; and that if he avails himself of it, and stops short of a full disclosure, no compulsory process can be made use of to compel him to testify further. It was not designed to be understood that, in the latter case, his failure to answer any proper question would not be the subject of comment and criticism by counsel; but, on the contrary, it was supposed that this was implied in the remark, that it must be left to the jury to give a statement which he declines to make a full one such weight as, under the circumstances, they think it entitled to." All circumstances which it is proper for the jury to consider, it is proper for counsel to comment upon.

66

The case referred to is that of State v. Ober, just decided in the Supreme Court of New Hampshire. The defendant was put on trial for an illegal sale of liquors; and, having offered himself as a witness, was asked on cross-examination a question directly relating to the sale. He declined to answer, on the ground that it might tend to criminate him. Being convicted, it was alleged for error that the court suffered the prosecuting officer to comment on this refusal to the jury. The Supreme Court held this no error. We not only approve of this ruling, but we should be at a loss for reasons which could furnish plausible support for any other. It is in entire accord with the practice which has prevailed without question in Michigan, and which has always assumed that the