the effect of the inducements, so that the accused cannot be sup posed 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.

1 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 evidence; 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.

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.

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

party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger.1

*The testimony for the people in criminal cases can [* 318] only, as a general rule, be given by witnesses who are present in court.2 The defendant is entitled to be confronted

right of comment, where the party makes himself his own witness and then refuses to answer proper questions, was as clear as the right to exemption from unfavorable comment when he abstains from asserting his statutory privilege.

The case of Connors v. People, 50 N. Y. 240, is different. There the defendant, having taken the stand as a witness, objected to answer a question; but was directed by the court to do so, and obeyed the direction. This was held no error, because he had waived his privilege. If the defendant had persisted in refusing, we are not advised what action the court would have deemed it proper to take, and it is easy to conceive of serious embarrassments in such a case. Under the Michigan practice, when the court had decided the question to be a proper one, it would have been left to the defendant to answer or not at his option, but if he failed to answer what seemed to the jury a proper inquiry, it would be thought surprising if they gave his imperfect statement much credence.

1

1 The statute of Michigan of 1861, p. 169, removed the common-law disabilities of parties to testify, and added, "Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify; but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross-examined on any such statement. It has been held that this statement should not be under oath. People v. Thomas, 9 Mich. 314. That its purpose was to give every person on trial for crime an opportunity to make full explanation to the jury, in respect to the circumstances given in evidence which are supposed to have a bearing against him. Annis v. People, 13 Mich. 511. That the statement is evidence in the case, to which the jury can attach such weight as they think it entitled to. Maher v. People, 10 Mich. 212. That the court has no right to instruct the jury that, when it conflicts with the testimony of an unimpeached witness, they must believe the latter in preference. Durant v. People, 13 Mich, 351. And that the prisoner, while on the stand, is entitled to the assistance of counsel in directing his attention to any branch of the charge, that he may make explanations concerning it if he desires. Annis v. People, 13 Mich. 511. The prisoner does not cease to be a defendant by becoming a witness, nor forfeit rights by accepting a privilege. In People v. Thomas, 9 Mich. 321, Campbell, J., in speaking of the right which the statute gives to cross-examine a defendant who has made his statement, says: "And while his constitutional right of declising to answer questions cannot be removed, yet a refusal by a party to answer any fair question, not going outside of what he has offered to explain, would have its proper weight with the jury." See Commonwealth v. Mullen, 97 Mass. 547; Commonwealth v. Curtis, ib. 574; Commonwealth v. Morgan, 107 Mass. 199.

2 State v. Thomas, 64 N. C. 74; Goodman v. State, Meigs, 197; Jackson v. Commonwealth, 19 Grat. 656. By the old common law, a party accused of felony,

with the witnesses against him; and if any of them be absent from the Commonwealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances; but they are far from numerous. If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.1 So, also, if a person is on trial for homicide, the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against the accused; the condition of the party who made them being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most powerful considerations to tell the truth.2

was not allowed to call witnesses to contradict the evidence for the Crown; and this seems to have been on some idea that it would be derogatory to the royal dignity to permit it. Afterwards, when they were permitted to be called, they made their statements without oath; and it was not uncommon for both the prosecution and the court to comment upon their testimony as of little weight because unsworn. It was not until Queen Anne's time that they were put under oath.

The rule that the prisoner shall be confronted with the witnesses against him does not preclude such documentary evidence to establish collateral facts as would be admissible under the rules of the common law in other cases. U. S. v. Benner, Baldw. 240; U. S. v. Little, 2 Wash. C. C. 205; U. S. v. Ortega, 4 Wash. C. C. 531. But the corpus delicti- e. g. the fact of marriage in an indictment for bigamy - cannot be proved by certificates. People v. Lambert, 5 Mich. 349.

1 1 Greenl. Ev. §§ 163-166; Bishop, Cr. Pro. §§ 520-527; Whart. Cr. Law, § 667; 2 Phil. Ev. by Cowen, Hill, and Edwards, 217, 229. Whether evidence that the witness cannot be found after diligent inquiry, or is out of the jurisdiction, would be sufficient to let in proof of his former testimony, see Bul. N. P. 239, 242; Rex v. Hagan, 8 C. & P. 167; Sills v. Brown, 9 C. & P. 601.

2 1 Greenl. Ev. § 156; 1 Phil. Ev. by Cowen, Hill, and Edwards, 285–289;