CHAPTER XL.

CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED.

§ 306. The Term "Confessions" Defined.

307. Confessions must be Voluntary.

308. Judge to Decide if Confession is Voluntary.

309. Presumption as to.

310. If Elicited by Fear or Menace should be Rejected.

311. Great Caution Enjoined in Receiving.

312. Province of Court and Jury with Reference to.

313. Confessions not Conclusive.

314. Credibility of the Witnesses Proving may be Examined.

315. Confessions under Intoxication.

316. Confessions Obtained by Improper Influence.

317. New York Rule Relative to.

318. Demeanor of the Accused when under Arrest-the Effect of Silence.

§ 306. The Term "Confessions" Defined.-A voluntary confession is one proceeding from the spontaneous suggestion of the party's own mind, free from the influence of any extraneous disturbing cause. People v. McMahon, 15 N. Y. 384; People v. Chapleau, 121 N. Y. 266.

"It is the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the crime." People v. Strong, 30 Cal. 151. And in delivering the opinion of the court in People v. Parton, 49 Cal. 632, McKinstry, J., said: "A confession is a person's declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt."

Prima facie, all confessions are voluntary, and it is for the party objecting to their admission as evidence to show that they were uttered under such pressure of hope or fear as to raise a doubt of their accuracy. It is undoubtedly the duty of the court to guard carefully the rights of a defendant in this respect; and more especially so when the prisoner is in the custody of the law and the hope or fears are supposed to be raised by an offer of the law. The fact that a defendant may think it will be better for

him if he confesses, or thinks it will be worse for him if he does not confess, is immaterial, if that condition of mind is brought about by his own independent reasoning. It is when that state of mind is induced by promises or threats or other inducement from without, that the confession is to be rejected. Com. v. Sego, 125 Mass. 210.

Confessions of the prisoner are receivable in evidence, upon the presumption that a person will not make an untrue statement against his own interest. 1 Phil. Ev. (9th ed.) 397.

§ 307. Confessions must be Voluntary.-To render confes sions of a party charged with crime admissible against him, it must be clearly shown that they were free and voluntary. Coffee v. State, 25 Fla. 501; Murray v. State, 25 Fla. 528. This rule will receive further vindication as we proceed.

Sir William Blackstone in a well known passage, says: "In cases of felony, confessions are regarded as the weakest and most suspicious of all testimony; very liable to be obtained by artifice, false hopes, promises of favor, menaces; seldom remembered accurately or reported with precision, and incapable in their nature of being disproved by other negative evidence." 4 Bl. Com. 357. It is to be observed in the first place that Blackstone uses this language in connection with his criticisms upon state trials for treason in England, and, although he intends his observations to have a general application to all cases of felony, he regarded them as primarily to be considered in state trials for treason. But the annotator upon this text of Blackstone thus remarks in a note: "It seems to be now clearly established that a free and voluntary confession of a person accused of an offense whether made before his apprehension or after, whether on a judicial examination or after commitment, whether reduced into writing or not; in short, that any voluntary confession, made by a prisoner to any person, at any time or place, is strong evidence against him, and, if satisfactorily proved, sufficient to convict without any corroborating circumstances. But the confession must be voluntary, not obtained by improper influence, nor drawn from the prisoner by means of a threat or promise; for, however slight the promise or threat may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt whether it was not made rather from a motive of fear or interest, than from a sense of guilt." Citing Phil. Ev. 86. Such undoubt

edly is the rule as enunciated by the most authoritative text-writers. People v. Bennett, 37 N. Y. 117, 93 Am. Dec. 551.

"No confession is deemed to be voluntary if it appears to the judge to have been caused by any inducement, threat or promise, proceeding from a person in authority, and having reference to the charge against the accused person, whether addressed to him directly or brought to his knowledge indirectly; and if (in the opinion of the judge) such inducement, threat, or promise, gave the accused person reasonable grounds for supposing that by making a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. But a confession is not involuntary, only because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, or by an inducement collateral to the proceeding, or by inducements held out by a person not in authority. The prosecutor, officers of justice having the prisoner in custody. magistrates, and other persons in similar positions, are persons in authority. The master of the prisoner is not as such a person in authority, if the crime of which the person making the confession is accused was not committed against him. A confession is deemed to be voluntary if (in the opinion of the judge) it is shown to have been made after the complete removal of the impression produced by any inducement, threat, or promise which would otherwise render it involuntary. Facts discovered in consequence of confessions improperly obtained, and so much of such confessions as distinctly relate to such facts, may be proved." Stephen, Dig. art. 22.

While some of the adjudged cases indicate distrust of confessions which are not judicial, it is certain, as observed by Baron Parke in Reg. v. Baldry, 2 Den. C. C. 430, 445, that the rule against their admissibility has been sometimes carried too far, and its application, justice and common sense has too frequently been sacrificed at the shrine of mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character. "Such a confession," said Eyre, C. B., Rex v. Warickshall, 1 Leach, C. C. 263, "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."

A confession is presumed to be voluntary unless the contrary is shown, or something appears in the confession or its attendant

circumstances to combat such presumption. State v. Meyers, 99 Mo. 107; People v. Barker, 60 Mich. 277. And the jury are to determine for themselves whether the confession was made freely and voluntarily, without any influence of hope or fear; that if so, they could consider it, but if not, it is no evidence. This was a distinct recognition of the rule on the subject found in Holsenbake v. State, 45 Ga. 44; Stallings v. State, 47 Ga. 572; Mitchell v. State, 79 Ga. 730; Bailey v. State, 80 Ga. 359. In any circumstance, if information derived from a confession leads to a discovery of material facts which go to prove the commission of the crime alleged, so much of the confession as strictly relates to the facts discovered, and the facts themselves, are admissible in evidenee, although the confession may not be shown to have been voluntary. Lowe v. State, 88 Ala. 8.

$308. Judge to Decide if Confession is Voluntary.— When a confession is offered in evidence, the question whether it is voluntary is to be decided primarily by the presiding justice. If he is satisfied that it is voluntary, it is admissible; otherwise it should be excluded. When there is conflicting testimony, the humane practice is for the judge, if he decides that it is admissible, to instruct the jury that they may consider all the evidence, and that they should exclude the confession, if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant. Com. v. Cuffee, 108 Mass. 285; Com. v. Nott, 135 Mass. 269; Com. v. Smith, 119 Mass. 305; Com. v. Preece, 140 Mass. 276.

§ 309. Presumption as to.-In the absence of all evidence, the presumption is that a confession is voluntary; and when the party confessing objects that confessions are not voluntary, he is called upon to show at least enough to rebut such presumption. Com. v. Culver, 126 Mass. 464.

A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given to such evidence, namely: that an innocent man will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made, either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by or in the presence of such person, in reference to such charge. Hopt v. Utah, 110 U. S. 574, 28 L.

ed. 262. This must not be construed as holding that, a confession made by a defendant on the simple advice of an officer that he "had better tell the truth" is free and voluntary (State v. Meekins, 41 La. Ann. 543) but confessions are always admissible if no inducement was held out or threat made, or anything done to induce the accused to believe that it would be better for him to confess, and worse if he did not. State v. Moorman, 27 S.

C. 22.

§ 310. If Elicited by Fear or Menace should be Rejected.The general principle is well settled, that the confessions of parties in civil suits or criminal prosecutions, are to be received in evidence. It is equally clear that confessions made under some circumstances are not admissible. Where they are entirely voluntary, they are to be received; but where they are drawn out by any expectation of favor or by menaces, they are to be rejected. In determining this question, it is proper to take into view the reason on which confessions so drawn out are excluded. It is not because of any breach of good faith in admitting them, nor because they are extorted illegally (though there may be cases in which this would exclude them, as where a magistrate puts the accused upon his oath) but 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 inquiry, to state things which are not true. Com. v. Knapp, 9 Pick. 496, 20 Am. Dec. 491.

The reasoning that prevailed in the Massachusetts case last cited led the New York court of appeals to declare that an accused who has signed a confession that he committed the crime of which he is charged, in concert with others, has the right to prove, if he can, that the important parts of the confession were not entitled to any credit with the jury, especially where he was indicted jointly with some of the persons described in the confession as his confederates. People v. Fox, 121 N. Y. 449.

No reliance whatever can be placed upon admissions of guilt obtained by means of threats or promises; for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them. The cases of State v. Phelps, 11 Vt. 116, 34 Am. Dec. 672; State v. Walker, 34 Vt. 296; Hector v. State, 2 Mo. 166, 22 Am. Dec. 454; State v. Bostick, 4 Harr. (Del.) 563; State v.