Where a prisoner had been admitted king's evidence, and confessed, and Voluntary. upon the trial of his accomplices refused to give evidence, he was convicted upon his own confession, even although it had previously been falsely represented to him by a constable that his accomplices were in custody (x). Where a witness answers questions upon his examination upon a trial, tending to criminate himself, and to which he might have demurred, his answers may be used for all purposes (y). Where a fact has been ascertained in consequence of an admission improperly obtained, it may still be proved, for the fact cannot have been affected by the influence used (z); therefore, upon an indictment for receiving stolen goods, where, in consequence of the confession, which had been unduly obtained, the stolen property had been the truth, his subsequent confession to the constable was admitted. R. v. Row, Append. to Burn's Just. tit. EVIDENCE, 23 edit. p. 102.) Though the prosecutor, in the presence of a magistrate, desire the prisoner to speak the truth, and suggest that he had better speak out, yet if the magistrate or his clerk immediately check the prosecutor, desiring the prisoner not to regard him, the confession is still admis sible. R. v. Edwards, E. T. 1802. And where the constable told the prisoner that he might do himself some good by confessing, and the prisoner afterwards asked the magistrate if it would be any benefit to him to confess, and the magistrate said he could not say that it would, on which the prisoner declined to confess but on his way to prison he confessed to another constable, and confessed again in prison to another magistrate, the Judges held unanimously, that the confessions were admis sible in evidence, on the ground that the magistrate's answer was sufficient to efface any expectation which the constable might have raised. R. v. Rosier, on a case reserved for the Judges, East. Term, 1821. So if the expressions be not calculated to raise any hope of some benefit or advantage of a mere temporal nature, it seems that they will not exclude a confession. Upon the trial of Hodgson a girl at York, for arson, evidence was offered of declarations made by the prisoner to Mrs. Richardson, her mistress, after the latter had told her it would be better if she would confess if she were guilty, for she would never be easy in her mind till she had confessed. Holroyd, J. after consulting Bayley, J. was of opinion that the evidence was receivable, but it was afterwards excluded on other grounds. police officer having a boy in his custody on a charge of arson, without a warrant, told him that after the prevarications he had made, there was no doubt of his guilt, and askel who was concerned with him. The prisoner had been apprehended about noon, and had no food till he made a confession, in answer to the officer's inquiries, between five and six in the afternoon; and seven of the Judges were of opinion that the evidence was receivable, no threat or A promise having been used; but three were of the contrary opinion. R. v. Thornton, 1 R. & M. 27. Where the constable who had charge of the prisoner left the room, and shortly after the constable to whom the prisoner made the statement entered, the Judge refused to receive the statement without calling the other constable to negative any promise or threat, as otherwise it might lead to collusion by constables; but it appearing that the prisoner was not under charge at the time, but detained only as an unwilling witness, the Court received the statement without previously calling the other constable R. v. Swatkins, 4 C. & P. 550. Where a promise or threat has been held out, it will usually exclude the statement made to the same person. R. v. Dunn, 4 C. & P. 543. But where the prisoner made a confession to a magistrate after the persuasions of a clergyman, but not with any view of temporal benefit, and after cautions that it would probably be given in evidence against him, it was held that such confession was properly admitted. Gilham's Case, 1 Ry. & M. C., 186. where a justice had held out promises of interference to induce a confession, but afterwards had informed the prisoner that there was no hope of pardon, and the prisoner subsequently sent for the coroner, and made a full disclosure notwithstanding he was cautioned that it would be used against him, held that it was admissible. (x) R. v. Burley, supra, tit. Accoм PLICE. And (y) Supra, 27; and see Stockfleth v. De Tastet, 4 Camp. 10. In the case of R. v. Merceron, cor. Abbott, J., 2 Starkie's C. 366, a statement by the defendant, upon examination before a committee of the House of Commons, was received in evidence, although it was objected that the defendant could not refuse to answer the question without incurring a contempt of the House. (z) R. v. Warrickshall, Leach's C. C. L. 298, 3d edit. Harvey's Case, East's P. C. 658. Mozey's Case, Leach's C. C. L. 301. Lockhart's Case, Ibid. 430. Butcher's Case, Ibid.; Haw. c. 46, s. 38. Prisoner's examina tion. found concealed between the sackings of the prisoner's bed, it was held by the twelve Judges, that the fact of finding the stolen property in the prisoner's custody was clearly evidence (a). But in such case nothing is to be left to the jury but the fact of the prisoner's having directed the witness where to find the goods, and his finding them, but not the acknowledgment (b). No evidence can be received of any act done by the prisoner in consequence towards discovering the property, unless the goods be actually discovered thereby (c). Any voluntary admission or confession by a defendant is evidence against him at common law (d), whether it be made to a private person or to a magistrate (e). The statutes of Philip and Mary, which directed the prisoner's examination to be taken (ƒ), made no difference as to the admissibility of evidence (g). The same observation is applicable to the stat. 7 Geo. 4, c. 64, s. 3. But no parol evidence of a confession can be given, where the confession has been taken down in writing, for the general rule applies, that it is not the best evidence (h). The statute directs that the examination of the prisoner shall be reduced to writing; the court will therefore presume that the magistrate has acted in conformity with the statute (i), consequently no parol evidence can be given of a prisoner's declaration before a magistrate, without previous proof that it was not taken down in writing (k). But a written examination before a magistrate will not exclude evidence of a previous parol declaration, which has not been reduced to writing (7). The prisoner is not to be examined upon oath (m), for this would be a (a) Warrickshall's Case, Leach's C.C. L. 298, 3d edit. So, if after a promise the prisoner bring money, and gives it up to the prosecutor as part of that which had been stolen from him. R. v. Griffin, 1 Russ. & Ry. 151. But where the prosecutor said he wanted his money, and that if the prisoner gave him that, he might go to the devil if he pleased, and the prisoner took money out of his pocket, and said it was all he had left, it was held that the confession ought not to have been received. R. v. Jones, 1 Russ. & Ry. 152. (b) Per Le Blanc, J. R. v. Grant and Craig; R. v. Marian Hodge, Wells Summ. Ass. cor. Grose, J. East's P. C. 658. (c) R. v. Jenkins, 1 Russ. & R. C. C. L. 492. (d) 2 Haw. c. 46, s. 23; Dy. 214; 6 St. Tr. 58. R. v. Tong, Kel. 18, 19. R. v. Wheeler, Leach's C. C. L. 349, 3d edit. R. v. Payne, 5 Mod. 105. (e) 2 Haw. c. 46, s. 33. R. v. Dore, And. 301. Marshall's Case, 2 St. Tr. 1002; Leach's C. C. L. 298, 3d edit. (f) An examination of a prisoner, though elicited by the magistrate's questions, is admissible against him where no threat or promise was used by the magistrate. R. v. Ellis, 1 Ry. & M. C. 437. Where the prisoner's statement was reduced into writing before the witnesses against him had been examined, it was admitted by Garrow, B. with great doubts of its legality. R. v. Fagg, 4 C. & P. 566; but see R. v. Bell, 5 C. & P. 162. (g) R. v. Lamb, Leach's C. C. L. 625, 3d edit. per Grose, J. (h) 1 Hale, 284; Summ. 263. (i) R. v. Jacobs and others, Leach's C. C. L. 349, 3d edit. R. v. Hickman, Ib. 349. R. v. Fisher, Ib. R. v. Hall, Ib. 240. R. v. Fearshire, Ib. ; 2 Haw. c. 46, s. 43. B. N. P. 298; (k) R. v. Hall, cited in R. v. Lambe, Leach's C. C. L. 635, by all the Judges, except Gould, J. Phillips v. Winburn, 4 C. & P. 273. R. v. Hollingshead, Ib. 242. (1) R. v. M'Carty, Sp. Comm. Dublin, 797. Macnally on Ev. 45. Action by bankers to recover money paid on a check purporting to be drawn by the defendant, but alleged to be a forgery, minutes of the defendant's examination on a charge made against a party as having forged the check, are receivable, although he afterwards signed a regular deposition. Williams v. Woodward, 4 C. & P. 346. (m) B. N. P. 242; Kel. 2. It generally happens that a party who is examined upon oath before the magistrate, is examined as a witness against others, and under the expectation that he will not be prosecuted. It has been said that a prisoner ought not to be questioned by a magistrate; and in the case of R. v. Wilson, Holt's C. 597, cor. Richards, C. B., the prisoner's statement was, on this ground, rejected as inadmissible; but by the statute of Philip & Mary formerly, and now by the stat. 7 G. 4, c. 64, s. 3, species of duress, and a violation of the maxim, that no one is bound to criminate himself. And where the examination purported on the face of the magistrate's return to have been taken upon oath, the Judge rejected parol evidence to show that no oath had in fact been taken (n). In Lambe's Case (o) it was held, by a majority of the twelve Judges, that a confession made by the prisoner before a magistrate might be read in evidence, upon proof, that when it was read over to the prisoner he said it was all true enough, although he declined to sign it, and although it had not been signed by the magistrate; for even a parol confession was evidence at common law before the statutes of Philip & Mary (p). By the statute 7 Geo. 4, c. 64, s. 3, the examinations must be returned by the justices to the next general gaol delivery, to be held within the limits. of their commission. The identity of the examination (q) is usually proved by the magistrate, coroner, or his clerk, who took it down (r), and it should be shown that it contains the substance of what the prisoner said (s). It should also appear that the confession was made freely (t); but it is not the magistrate is to take the examination of the prisoner; and at the Carlisle Sp. Ass. 1824, Holroyd, J. admitted the prisoner's examination to be used as evidence against him, notwithstanding this objection. Where a statement by a defendant, made before a committee of the House of Commons, was objected to on the ground that the statement had been made under a compulsory process, the objection was overruled. R. v. Merceron, 2 Starkie's C. 366. Before a statement made by a prisoner to the magistrate he was sworn by mistake, but as soon as it was discovered, the deposition was destroyed, and the party cautioned; his subsequent statement is receivable. R. v. Webb, 4 C. & P. 564. A party is examined on oath upon a charge made against another, he not being himself charged or suspected of any offence, upon his being afterwards charged and indicted, his former deposition is admissible. R. v. Haworth, York Spring Assizes, 1830, Parke, J. (n) R. v. Smith and another, cor. Le Blanc, J. 1 Starkie's C. 242. In the case of R. v. Wilson, 1 Holt, C. 597, cor. Richards, L. C. B. it was held, that an examination of a prisoner, which consisted in answers to questions put by the magistrate, could not be received in evidence, although no threats had been held out. (0) Leach's C. C. L. 625; and see 2 Haw. c. 46, s. 31. (p) In the case of the King v. Telicote, cor. Wood, Baron, York Summer Assizes, 1819, 2 Starkie's C. 483, where a prisoner, after his examination had been read over, refused to sign it, and did not say (as in Lamb's Case) that it was true, the learned Judge rejected the evidence. But in the later case of R. v. Dewhurst, Lancaster Spring Assizes, 1825, where the magistrate himself had taken down the examination, which was read over to the prisoner, who made no objection to it, but did not sign it, Bayley, J. held that the magistrate might at all events refresh his memory by the writing, and give evidence of the statement; but ultimately the examination itself was read. Minutes of a prisoner's examination, which have not been signed by him, or read over to him, may be used as minutes to refresh the memory of the witness, Layer's Case, 24 Howell's St. Tr. 214; 6 Hargreave's St. Tr. 229. Where the examination of a prisoner taken in writing is inadmissible from some irregularity, parol evidence of what he said upon the examination is admissible. R. v. Reed, 1 Mood. & M. C. 403. (q) It has been said that the examinations ought not to be taken before the grand jury, Gilb. Ev. by Loft, 216; but the rule seems to apply to depositions only; and, in practice, the examinations are frequently (by leave of the court,) taken before the grand jury. (r) Parke, B. was opinion, that it is sufficient to prove the magistrate's signature; but Lord Denman held, that this was not sufficient when the prisoner made his mark only, without writing his name. (s) 1 Hale, 284. The safest course is to take down the very words. The statute requires the justices to take the examination, and to put the same, or so much thereof as is material, into writing. A prisoner said, "Give me a glass of gin, and I'll tell you all about it," and two glasses of gin were given by an officer to the prisoner, who then made a confession, and the officer afterwards wrote down from recollection what the prisoner had said, and the officer read over what had been so written before the committing magistrate, and the magistrate told the prisoner that a confession might do him harm, upon which the prisoner said that what had been read was the truth, and signed the paper. Best, J. refused to admit the evidence. R. v. Sexton, Norwich, Summ. Ass. 1822. (t) 1 Hale's P. C. 284. Proof of examination. Force and effect. absolutely incumbent on the magistrate to warn the prisoner not to confess (u). The whole of the confession must be read (x). A prisoner may be convicted upon his own confession, without other evidence (y). It is a general rule, founded upon principles already adverted to (z), that the admission or confession of one defendant is not evidence against any but himself (a); except, indeed, such a privity and community in the same original design be proved, as to render that which has been said or done by one, in furtherance of the common object, fair and reasonable evidence of the general design and project itself. It was ruled in Tong's Case (b), upon the soundest principles, that the confession of one shall not be evidence against another. Where several are tried at the same time, and the confession of one implicates another, the evidence cannot on that account be rejected; the usual course is for the court to inform the jury that the confession is evidence against that party only by whom it is made (c). In some instances, the confession of one, taken in the presence and hearing of another prisoner, may be very material evidence to explain the expressions and conduct of the latter upon that occasion; for any declarations of his, by which he assented to what was confessed by another, to his own prejudice, would be admissible evidence against him. The confession of the other may also, it seems, be evidence for the purpose of explaining such declarations (d). ADMISSION TO A COPYHOLD. See COPYHOLD.-EJECTMENT. ADULTERY. See CRIMINAL CONVERSATION. AFFIDAVIT. An affidavit sworn before a Judge is receivable in the court of which he is a Judge, though not entitled of that court, but not in any other court unless entitled of that court (e). AFFIRMANCE OF CONTRACT. See Index, tit. WAVER. AGENT (f). be IF A., authorize B., to do an act, it is in law the act of A., and may so alleged in pleading, except in cases of felony; for then, if A. be absent when the fact is committed, he is but an accessory before the fact (g). Ac (u) R. v. Magill, Macnally, 38. (x) R. v. Payne, 5 Mod. 165; 2 Haw. (y) Stone's Case, Dy. 214. Francis's (z) Vol. I. See Index, tit. ADMIS ing of such a confession should not operate to the prejudice of the parties implicated; in some instances the inconvenience might be obviated by separate trials. (d) But a confession by one of several prisoners before a magistrate, which implicates all, cannot be read in evidence merely for the purpose of drawing an inference from their silence as to the parts which affect them. R. v. Appleby and others, 3 Starkie's C. 33, cor. Holroyd, J. who said that it had been so held by several of the Judges on a case from Chester, and that he was of that opinion. (e) Reg. G., H. T. 2 W. 4. The addition of every person making an affidavit must be inserted therein, Ib. When sworn before the attorney on record or his agent, Ib. (f) For other evidence on this head, see tit. ADMISSIONS.-ACCESSORIES. (g) See ACCESSORY. agency. cordingly, on an allegation (in a civil action) that the master and servant drove ungovernable horses in Lincoln's-Inn-Fields, both were found guilty, although the servant alone was present (h). So an allegation that the defendant negligently drove his cart, is supported by proof that it was driven by his servant (i). Before the act of B. can be given in evidence as the act of A., it must be proved that B. was the agent of A. This proof may either be,-1st, direct, or it may result, 2dly, from the relative situation of A. and B.; or 3dly, from their habit and course of dealing, or other special circumstances; or, 4thly, from A.'s recognition of B.'s act, or his acquiescence in it. 1st. May be direct (k). As where the agent is called as a witness and Direct eviproves that he was authorized to do the act, or transact the particular dence of business. The fact of agency may be proved by collateral evidence without calling the agent (1). If the authority was in writing, it must be produced, in order that it may be seen whether it has been pursued (m). If he acted under a power of attorney, the instrument must be produced and proved (n) And parol evidence of the authority is inadmissible, where the authority from its nature must have been in writing (o). This, however, does not appear to be necessary, where the authority can be clearly inferred from the course of dealing, or from the recognition of the agent's acts by the principal. And therefore in the case of The King v. Bigg (p), which was an indictment for a felonious erasure of an indorsement upon a bank-note, although it was contended, on behalf of the prisoner, that it was necessary to prove the appointment of Adams as the agent of the Bank of England, being a corporate body, under their seal (q), it was held to be sufficient to show that Adams had been used to sign bills and notes, which from time to time had been duly paid, and answered by the Bank. It was found by the special verdict that Adams had been intrusted and employed by the Governor (h) Michael v. Allestree, 2 Lev. 172. (i) Brucker v. Fromont, 6 T. R. 659; and see Tuberville v. Stamp, Ld. Raym. 264. (k) A letter authorizing an agent to draw to a certain amount, coupled with a power of attorney to enter into and complete contracts, make purchases, &c., is a sufficient authority to such agent to raise money for the purposes of his employers; and a party advancing monies to such agent is not bound to call for those instruments, and inquire what money has been already advanced on the letter. Withington v. Herring, 5 Bing 442. See Attwood v. Munnings, 7 B. & C. 278. A direction to an agent to enter upon premises (in mortgage) and sell the stock, &c., which was declared to be for the benefit of the plaintiff, and amounting to an authority to pay over the amount to him, being in consideration of his postponing the sale of the estate, is an irrevocable authority, and the plaintiff may sue the agent for money had and received. Metcalf v. Clough, 2 M. & Ry. 178. The steward of a manor cannot appoint a deputy without special authority. Barker v. Kett, 3 Salk. 124. The office is grantable in reversion; Ib. Where the agent had in his own name always sold the goods and received the amount, held that having an authority to sell, he had an implied one to receive the price; and that the princi- (1) Owen v. Barrow, 1 N. R. 101; infra, (m) Johnson v. Mason, 1 Esp. C. 89. (0) Ibid; but see 3 P. Wms. 427, (p) 3 P. Wms. 427. (q) It was alleged in the indictment, that one Joshua Adams was intrusted and employed by the Governor and Company of the Bank of England to sign bank-notes for the said company; and it was found by the special verdict that he was so intrusted and employed by the Governor, &c. but not under their common seal. |