would not be taken before the magistrate. Now she must have known, when she made this statement, that the constable was taking her to the magistrate. The inducement therefore was at an end.(*) § 283. When the inducement has proceeded from a third party having no authority to hold out hope, it has long been a disputed point whether the confession was receivable or not. Samuel Taylor's case(a) has at length settled that it is. § 284. The following are considered persons having authority : Magistrates. Sheriffs. Constables. Masters and Mistresses. § 285. A confession obtained by artifice or deception is receivable. Thus when a turnkey was asked by a prisoner if he would put a letter in the post for him, and the turnkey having replied in the affirmative, received a letter containing a confession from the prisoner, which was retained by the jailor, it was received. (b) So when a person took an oath that what the prisoner revealed to him should go no further, the confession was held receivable. (c) § 286. It has been a question of dispute whether the answer which a party has made to questions put to him in a cause, tending to criminate him, may be used against him upon a subsequent criminal trial. Hitherto, as we shall see hereafter, a witness has been exempted from answering such questions, although if he chose to waive his privilege, he must have taken the consequences. But now by Act II. of 1855, Sec. XXXII. a party is bound to answer criminating questions, but the answers elicited shall not be used as evidence against him. (d) (z) Richard's Case, 5 C. and P. 318. (a) 8 C. and P. 733. (b) Derrington's Case, 2 C. and P. 418. (c) Shaw's Case, 6 C. and P. 372. Thomas' Case, 7 C. and P. 345. (d) In this respect the Indian Legislature has gone beyond the Law as it at present obtains in England, where a witness is still not bound to answer self-criminative questions. In principle the Indian provision is right, since it is desirable that the judge on a trial should have before him the character of a witness on whose testimony he is to decide; and it may be thought that the protection thrown around the witness so compelled to answer, is quite sufficient. But in a small society like that which is found in most Indian towns, it would be almost impossible practically to exclude from the judge or jury the knowledge that the prisoner had made such former self-criminative admission; and the very knowledge could scarcely but produce an effect injurious to him on their minds. Since the above was written Lord Brougham has brought in a Bill which assimilates the English practice to the Law as at present existing in India. And see 12 and 13 V. c. 106, s. 117, as to compulsory examination of a bankrupt. See also R. v. Scott, 2 Jur. N. S. 1098, and ib. part 2, p. 333. § 287. Facts discovered in consequence of confessions improperly elicited, are admissible. For instance if stolen articles are found in consequence of a confession, the fact that such articles were found is receivable, even though the confession itself should be rejected as having been improperly elicited. The leading case upon this is Warwickshall's case. (e) There the Court said: case.(e) "A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected. This principle respecting confessions has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exist at all, must exist invariaably 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 may have been derived; and the impossibility of admitting any part of the confession as a proof of the fact clearly shows that the fact may be admitted on other evidence; for as no part of an improper confession can be heard, it can never be legally known whether the fact was derived through the means of such confession or not; and the consequences to public justice would be dangerous indeed; for if men were enabled to regain stolen property, and the evidence of attendant facts were to be suppressed, because they had regained it by means of an improper confession, it would be holding out an opportunity to compound felonies. The rules of evidence which respect the admission of facts, and those which prevail with respect to the rejection of parol declarations or confessions, are distinct and independent of each other. It is true that many able judges have conceived, that it would be an exceeding hard case that a man whose life is at stake, having been lulled into a notion of security by promises of favor, and in consequence of those promises has been induced to make a confession by the means of which the property is found, should afterwards find that the confession with regard to the property found is to operate against him. this subject has more than once undergone the solemn consideration of the twelve judges; and a majority of them were clearly of opinion, that although confessions improperly obtained cannot be received in evidence, any (e) 5 Leach's Cr. C. p. 263. facts done afterwards might be given in evidence, notwithstanding they were done in consequence of such confession." § 288. A confession is only evidence against the party making it; not against those who are charged in common with him. On a joint trial of a principal and receiver, the confession of the latter cannot criminate the former, against whom the substantive charge must nevertheless be proved; and in a case before the Supreme Court where two women were so charged, the receiver confessed the crime. The jury however acquitted the principal, and Sir E. Gambier directed the receiver to be released, for it was impossible to convict her, even on her own confession, of receiving stolen goods from the principal, who the jury had declared did not steal them. The case of R. v. Cunniapen Ungamah and Chinnatumby tried at the Second Sessions of the Madras Supreme Court for 1858, before Sir H. Davison, P. J. affords another excellent illustration. I conducted the pro-secution. The first prisoner was indicted for larceny, the two others for receiving. The principal confessed. There was no independent evidence that he had committed the theft. Under these circumstances I cited the case of R. v. Craddock,(f) where it was held (after verdict) that the words "so as aforesaid feloniously stolen" in the second count did not necessarily mean that the article had been stolen by the person named in the first count, but only that it had before that been feloniously stolen. The judge doubted the law of this case, but on the strength of it they were convicted. On the following day however Sir H. Davison directed their discharge, being satisfied that the old law as laid down in R. v. Wolford, (9) was correct. There it was held that" in an indictment for receiving stolen goods knowing them to have been stolen by a person named, the stealing by that person must be proved, or the receiver must be acquitted." : And certainly this seems only just for otherwise the accused might come prepared to defend himself against one case, and at the trial be taken by surprize by another. And see R. v. Wills, (h) where principal felon and receivers were indicted jointly. An accomplice of the principal gave evidence as to all the parties. He was corroborated, as to his evidence touching the receivers, but not as to the principal. The principal was acquitted, and the receivers also in consequence. (f) 14 Jur. 1031. And in R. v. Morris, (i) it was held that if A is charged as a principal and B as receiver, and A plead guilty-an accomplice when called to give evidence against B, should be confirmed as to some matter affecting B; confirmation against A does not advance the case against B. § 289. The whole confession must be taken together, just as in the case of an admission. The judge may of course attach different degrees of weight to different parts of it. § 290. When a confession has been reduced to writing the writing must be produced. To introduce it as evidence, inducement to confess must be negatived and it is then read. It frequently happens that a prisoner in his confession has criminated others who are at the bar with him. In this case a difficulty arises as to the method of reading the confession. On some Circuits in England the practice is to omit the names of others whenever they are mentioned, so tender is the law of implicating one prisoner by the confession of another : and Mr. Justice Burton has directed me as Clerk of the Crown so to read a confession. It made nonsense of nearly the whole, and the practice of other Circuits is that usually followed, where the whole is read, and the jury cautioned not to regard the statement as it effects any body but the author of it. "Where the confession of a prisoner" writes Russell, (*) "Mentions the name of another prisoner tried at the same time, it seems according to the later cases, that the whole of the confession, whether by parol, or in writing, must be given in evidence. The judge will, however, in such cases, direct the jury that the confession is only to be taken as evidence against the prisoner who made it. On the Oxford Circuit it was the constant practice a few years ago to omit the name of any prisoner that was mentioned in the confession of another prisoner. But it has been held in many cases that on circuit and elsewhere, that the proper course is to state A very 2 1 or read all the names mentioned by the prisoner in his confession. learned judge has, however, expressed on several occasions a strong opinion that such a course is unfair.() (1) 7 C. and P. 270. (k) 2 Russell on Crimes, p. 857. (In Rex v. Daniel and Garland, Monmouth Spr. Ass. 1831, MS. C. S. G. Bosanquet, J., said, "The ground I go upon is, that I do not think I am authorized to direct the officer to read one word instead of another. I cannot tell the officer to read what is not written." In Rex v. Giles and Betts, Worcester Spr. Ass. 1830, MS. C. S. G., where there was a parol confession, Littledale, J., said," he was satisfied the proper way was to state the names uttered by the prisoner, as to state another person' instead of the name used was § 291. A maxim of Law says Nemo audiendus est allegans suam turpitudinem. No one alleging his own baseness is to be heard. But the reception of a confession does not militate against this rule, for it is restricted to cases in which the party seeks to take advantage of his own turpitude, not where he tells it in his own despite.(m) § 292. Having exhausted our observations on direct testimony, we now come to the other great branch of this division, Indirect or Circumstantial Evidence. To this we shall recur again more at large when we reach the subject of Presumptions. CHAPTER XVII I. INDIRECT OR CIRCUMSTANTIAL EVIDENCE. § 293. We have had occasion to touch on this before, but the following passage from Starkie, p. 80, is perhaps the most concise and simple account which can be given of the principle on which its force depends. "Where the connection between facts is so constant and uniform, that from the existence of the one, that of the other may be immediately inferred, either with certainty, or with a greater or less degree of probability, the inference is properly termed a presumption, in contradistinction to a conclusion derived from circumstances by the united aid of experience and reason." not to state the truth, which a witness was sworn to do." In Rex v. Harding, Bailey, and Shumer, Gloucester Spr. Ass. 1830, MS. C. S. G., where there was a written confession, Littledale, J., said "Suppose two men are indicted, one as principal, and the other as accessory, and the principal is named in the indictment, and the accessory, makes a confession admitting himself to be accessory to the principal, how is it to be known that he is accessory to such principal, if the name of the principal is not to be read? I have considered this case very much indeed, and I am most clearly of opinion that it is to be read as the prisoner made it, because otherwise the evidence is not read as it was given by the prisoner. I have no doubt upon it, and will not therefore reserve the point.' Rex v. Walkley, 6 C. & P. 175, Gurney, B. (m) An amusing instance of this sometimes occurs, when a party who has masked his property in order to defraud his creditor by means of the Insolvent Court, afterwards finds the trustee to whom he conveyed his property, turn round upon him and refuse to restore it. I have seen a Bill in Equity filed on this account: but it was successfully demurred to, on the ground that Equity would give no relief to one who did not come into Court with clean hands; and as the Plaintiff was forced to admit his own fraudulent object in creating the trust; nemo. allegans, &c. applied. It may be said that the Defendant was as bad as the Plaintiff-Arcades ambo-blackguards both. But here another maxim comes in. In pari delicto, melior est conditio possidentis. Where both parties are equally in fault, the position of the Defendant is the better; in other words, as a Plaintiff must recover on the strength of his own case, the Law refuses to interfere. Lest the student should feel that there is an injustice somewhere here which he can't quite understand, I would add that the defrauded creditors could successfully set aside the Trust, as created in fraud of them, and take away the property from both Plaintiff and Defendant. See also S. A. 118 of 1857. M. S. R. for 1858, p. 156 and Bower v. Foster, 4 Jur. N. S. p. 95. |