or who occasioned it. With these limitations, the evidence was admitted. The Crown tendered in evidence a written statement, which had been taken down from the dictation of the deceased (and afterwards signed by her) shortly before her death. On the admissibility of this as a dying declaration, the counsel for the Crown asked the Court to decide whether it was sufficiently shown to have been made in expectation of impending death. The woman's expressions were: "I do not think I shall recover, and "I shall not be long here." Gill objected to its admission; and quoted the dictum of Byles, J., in Reg. v. Jenkins (supra, p. 515) that "dying declarations ought to be admitted with scrupulous and almost superstitious care." CHARLES, J. The result of the decisions is that there must be an unqualified belief in the nearness of death, every hope of this world must be gone; and in the words of Mr Justice Willes, in Reg. v. Peele (2 F. and F. 21) there must be "a settled hopeless expectation of death." Taking all the circumstances of the case together, I cannot come to the conclusion that the deceased was in that condition. statement, therefore, cannot be admitted. The Poland stated that, the declaration being excluded, he could not proceed further. [See also REGINA v. NEILL, supra, p. 483, Not guilty. [But only on trials for homicide.] KING'S BENCH. 1824. REX v. MEAD. 2 BARNEWELL AND CRESSWELL 605. The defendant was indicted for perjury; and at the Middlesex sittings, before ABBOTT, C.J., was found guilty. The perjury, of which the defendant was convicted, consisted in Mead's swearing, upon the trial of an information in the Exchequer, that one James Law had been present at and engaged in a smuggling transaction, at a place called the Salt-Pans, in the parish of Scalby, in the county of York, on the 20th of August, 1820; upon the trial of which information Law was acquitted. A rule for a new trial was obtained by the Attorney General, on the ground of the verdict having been against the weight of evidence. [Counsel for the Crown now shewed cause against a new trial. They tendered affidavits, some of which stated a dying declaration of the above-mentioned James Law; who had been the prosecutor on the indictment for perjury, and had been shot by the defendant Mead, after the conviction of the latter. The dying declaration of Law, after giving an account of the circumstances under which he was shot by Mead, proceeded to negative his having been present at, or having had any concern whatever in, the smuggling transaction which Mead had deposed to in the Court of Exchequer. The Attorney General objected to these affidavits of the dying declaration being received. Dying declarations are only admissible in criminal prosecutions where the death of the deceased and the circumstances of the death are the subject of the charge against a prisoner. Whereas here the statement, disclosed by the affidavits tendered, was not made with reference to the death of the dying man, but with reference to the antecedent charge of perjury. In Doe dem. Sutton v. Ridgeway (4 B. and A. 53), it was held that the dying declarations of a person as to the relationship between the lessor of the plaintiff and the person last seised, could not be received in evidence. D. F. Jones and Chitty, for the Crown, contended that the affidavits as to the dying declarations were admissible. The general principle upon which such evidence is competent is founded partly on the situation of the dying man, which must be taken to have as much power over his conscience as the sanction of any oath could have, and partly on the manifest absence of any interest, when he is on the point of passing into another world. Lord Mohun's case, 12 St. Tr. 949; Rex v. Reason, 1 Strange 499.... ABBOTT, C.J. We are all of opinion that the evidence cannot be received.... The dying declaration of Law was for the purpose, not of accusing but, of clearing himself. It therefore falls within the general rule that evidence of this description is only admissible where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. CHAPTER VI. CONFESSIONS. [In criminal trials, an admission made by the accused cannot be given in evidence if it were induced by any threat or promise, connected with the prosecution.] THE QUEEN v. THOMPSON. CROWN CASE RESERVED. 1893. L.R. [1893] 2 Q.B. 12. Kendal on At the Westmoreland Quarter Sessions, held at October 21, 1892, Marcellus Thompson was tried for embezzling certain moneys belonging to the Kendal Union Gas and Water Company, his masters. Mr Crewdson, the chairman of the Company, at whose instance the warrant for the prisoner's apprehension had been issued, was called as a witness by the prosecution to prove among other things a confession by the prisoner. As soon as this confession was sought to be put in evidence, objection was taken to its admissibility, and we therefore, before receiving further proof, allowed the witness to be cross-examined by the prisoner's counsel. In answer to the latter's questions, the witness stated that, prior to the confession being made, the prisoner's brother and brother-in-law had come to see him, and that at this interview he said to the prisoner's brother, "It will be the right thing for Marcellus to make a clean breast of it." The witness added, "I won't swear I did not say 'It will be better for him to make a clean breast of it.' I may have done so. I don't think I did. I expected what I said would be communicated to the prisoner. I won't swear I did not intend it should be conveyed to the prisoner. I should expect it would. I made no threat or promise to induce the prisoner to make a confession. I held out no hope that criminal proceedings would not be taken." No evidence was produced to the Court tending to prove that the details of the interview had been communicated to the prisoner, or to rebut the evidence of Mr Crewdson as to what took place at the interview. It was then contended by the prisoner's counsel that the above statements to the prisoner's brother were inducements to the prisoner to confess, held out by a person in authority, and that evidence of the confession was therefore inadmissible. We found that Mr Crewdson was a person in authority, and we found, as a fact, that the statements made by him were calculated to elicit the truth, and that the confession was voluntary, and we accordingly admitted the evidence. The witness then proved that after the interview he charged the prisoner with embezzling the Company's money, and one of the directors told the prisoner that he was in a very embarrassing position. The prisoner replied, "I know that; I will give the Company all the assistance I can." He said, in answer to witness's charge, "Yes, I took it; but I do not think it is more than £1000. It might be a few pounds more." No statement was made to the prisoner that the confession would save him from prosecution; there was no threat or promise. Subsequently the prisoner made out a list of moneys which he admitted had not been accounted for by him. This list we also admitted in evidence. The prisoner was convicted and sentenced to three years' penal servitude. The question for the opinion of the Court is whether the evidence of the confession was properly admitted. The case having been sent down for amendment, the following statement was added :—At a meeting of the directors a question was asked by one of the directors as to the value of the stock on a farm occupied by the prisoner's brother, and it was suggested that a bill of sale over the stock should be given. The prisoner stated that the worth of the stock was over £1000, but that he could not accept the suggestion about the security without telling his brother. At the same meeting the prisoner said, "My brothers have got it" (meaning the money); "it has gone to pay interest on mortgages." Mr Crewdson said, "I never agreed not to prosecute, if a bill of sale were given." After the charge was made, £340 was received from the prisoner, together with some money and an I.O.U. for £25, which were found in the cash-box. Of the sum of £340, £90 was paid into the bank by the prisoner, and £250 by his brother. Mr Crewdson stated that no arrangement was made as to the discrepancy being treated as a debt, and that the sum paid was simply by way of restitution. Segar for the prosecution. Evidence of the confession was admissible. It is not shewn that what passed between the prisoner's brother and the prosecutor was communicated to the prisoner. The words used were also advice on moral grounds. Confessions preceded by exhortations of this kind were held admissible in Reg. v. Jarvis', and Reg. v. Reeve. The justices have found that the confession was voluntary; and it was for them to decide what words were used, and whether they were repeated to the prisoner in such a manner as to convey a promise or threat. Evidence of a confession is primâ facie admissible, and can only be excluded upon proof by the prisoner that the confession was not voluntary. CAVE, J.. Many reasons may be urged in favour of the admissibility of all confessions, subject of course to their being tested by the crossexamination of those who heard and testify of them; and Bentham 1 L. R. 1 C. C. R. 96; infra, p. 525. 2 L. R. 1 C. C. R. 362. seems to have been of this opinion (Rationale of Judicial Evidence, Bk. v., ch. vi., s. 3). But this is not the law of England. By that law, to be admissible, a confession must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible. On this point the authorities are unani mous.... In Reg. v. Baldry it is said by Pollock, C.B., that the true ground of the exclusion is not that there is any presumption of law that a confession not free and voluntary is false, but that "it would not be safe to receive a statement made under any influence or fear." He also explains that the objection to telling the prisoner that it would be better to speak the truth is that the words import that it would be better for him to say something. With this view the statutory caution agrees, which commences with the words: "You are not obliged to say anything unless you desire to do so."... ...If these principles and the reasons for them are, as it seems impossible to doubt, well founded, they afford to magistrates a simple test by which the admissibility of a confession may be decided. They have to ask, Is it proved affirmatively that the confession was free and voluntary that is, Was it preceded by any inducement to make a statement held out by a person in authority? If so, and the inducement has not clearly been removed before the statement was made, evidence of the statement is inadmissible. In the present case the magistrates appear to have intended to state the evidence which was before them, and to ask our opinion whether on that evidence they did right in admitting the confession. Now there was obviously some ground for suspecting that the confession might not have been free and voluntary; and the question is whether the evidence was such as ought to have satisfied their minds that it was free and voluntary. Unfortunately, in my judgment, the magistrates do not seem to have understood what the precise point to be determined was, or what evidence was necessary to elicit it. The new evidence now before us throws a strong light on what was the object of the interview between Mr Crewdson and the prisoner's brother and brother-in-law, why he made any communication to them, and why he expected that what he said would be communicated to the prisoner. There is, indeed, no evidence that any communication was made to the prisoner at all; but it seems to me that after Mr Crewdson's statement, that he had spoken to the prisoner's brother and brother-in-law about 1 2 Den. C. C. 430, at p. 442. See the Indictable Offences Act, 1848 (11 and 12 Vict. c. 42), s. 18. |