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that it ought to appear that the deceased believed his dissolution impending. And unquestionably the length of time may be a material consideration in forming an inference as to the state of mind of the deceased with respect to his expectation of death, at the time of making a declaration, especially if the deceased has not expressed his sense of his own situation. [ *32 | Phill. Ev. 298, 8th ed. Where, *on the day of receiving the injury, the deceased said he should not get better, and continued to say so to his nurse till the day of his death, which occurred eleven days, afterwards, it was held that a declaration made on the day of his receiving the injury was admissible, although he had never expressed to the surgeon who attended him any opinion either of hope or apprehension, and although the surgeon thought there was a probability of recovery till the day before his death, which opinion however was not communicated to the patient. Mosley's case, 1 Moo.C. C. 97 (a). But where the proof of the deceased's knowledge of his situation was that he said “ he should never recover," Hullock, B., rejected the declaration made seven days before the death of. the party, observing, “ The principle on which declarations in articulo mortis are admitted in evidence, is that they are (made] under an inpression of almost imniediate dissolution. A man may receive an injury from which he may think that ultimately he shall never recover, but that would not be sufficient to dispense with an oath." Van Butchell's case, 3 C. and P. 631 (b). Where, however, the party being confined to his bed, said to his surgeon, “ I am afraid, doctor, I shall never get better," and soon afterwards made a statement and died, Hultock, B., admitted this as a dying declaration, although made several weeks before his death. Craven's case, i Lewin, C. C. 77. The surgeon said to the party, “You are in great danger,” to which he answered, " I fear I am," and after this made a statement. Though he afterwards recovered so far as to think himself out of danger, the statement was admitted by Bayley, J. Simpson's case, i Lewin, C. C. 78. . But see Errington's case, ante, p. 31, contra. The deceased asked the surgeon,“ Shall I recover ?” He replied, “No.” The patient grew better, and the surgeon changed his opinion, and thought she might get better. The deceased then had a relapse, and again asked the surgeon if she should recover. He replied, “ I think you will not recover,” to which she rejoined, “ I think so too." It was after this conversation, but not iminediately, that the declaration was made. The surgeon had attended the woman until her death, but not regularly: The question as to recovery was not repeated at any of his subsequent visits. Alderson, B., after consulting Patteson, J., admitted the declaration. Ashton's case, 2 Lewin, C.C. 147.. See also Smith's case, 1 Lewin, C. C. 81. Bonner's case, ante, p. 29 (1).

Dying declarationswhere reduced into writing.) Where the deceased made three several declarations at three several times in the course of the same day, as to the cause of the injury he had sustained ; and the first and third accounts were not reduced into writing, but the second was taken down in writing, in the presence of a magistrate, by the same person to whom the former account was given ; the account in writing being retained by the magistrate, who was not called, it was held (Pralt, C. J.

(1) State v. Ferguson, 2 Hill, 619.
(a) 2 Eng. Cr. C. 98. (b) Eng. Com. L. Rep. xiv. 495.

diss.) that *the accounts given by the deceased were distinct facts, and that there was no reason to exclude the evidence as to the first and third declaration, because the prosecutor was disabled from giving an account of the second. Reason's case, 1 Str. 500.. 16 IIow. St. Tr. 31, S. C. The prisoner was indicted for wilful murder. Depositions of the deceased, taken in writing by a magistrate, in the hospital where he lay, but not in the presence of the prisoner, were offered in evidence, it being objected that these depositions could not be read, as not having been taken pursuant to the statute 10 Car. c. 1 (Irish), Downs, J., ordered the magistrate to be sworn, and he having deposed that the deceased, at the time of making those depositions, was impressed with the fear of immediate death, his parol testimony of the facts declared by the deceased was admitted. Callaghan's case, Cork Ass. 1793, 1 M'Nally, 385.

Where a dying declaration has been reduced to writing and signed by the deceased, neither a copy of the paper, nor parol evidence of its contents can be received. Per Coleridge, J., Gay’s case, 7 C. and P. 230 (a). See also Trowter's case, 10 Vin. Abr. 118. East's P. C. 356.

Dying declarations-degree of credit to be given to. With respect to the effect of dying declarations, it is to be observed, that although there may have been an utter abandonment of all hope of recovery, it will often happen that the particulars of the violence, to which the deceased has spoken, were likely to have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed. The consequences, also, of the violence may occasion an injury to the mind, and an indistinctness of memory as to the particular transaction. The deceased may have stated his inferences from facts, concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars, from not having his attention called to them. Such evidence therefore is liable to be very incomplete. He may naturally, also, be disposed to give a partial account of the occurrence, although possibly not influenced by animosity or ill-will. But it cannot be concealed, animosity and resentment are not unlikely to be felt in such a situation. The passion of anger once excited may not have been entirely extinguished, even when all hope of life is lost. See Crockett's case, 4 C. and P. 544 (6), ante, p. 31, where the declaration was, “that damned man has poisoned me.” If these observations are founded upon the common 'experience of human nature, it is necessary to be cautious in receiving impressions from accounts given by persons in a dying state ; especially when it is considered that they cannot be subjected to the power of crossexamination ; a power, quite as necessary, for securing the truth as the religious obligation of an oath can be. The security also, which courts of justice have in ordinary cases, for enforcing truth, by the terms of punishinent and the penalties of perjury cannot exist in this case. The remark before made, on verbal statements, which have been heard and reported *by witnesses, applies equally to dying declarations, 1 *34 | namely, that they are liable to be misunderstood and misreported, from inattention, from misunderstanding, or from infirmity of memory. In one of the latest cases upon the subject, this species of proof is spoken of as an anomaly, and contrary to all the general rules of evidence, yet as hav

(a) Eng. Com. L. Rep. xxxii. 499. (b) Id. xix. 518.

ing, where it is received, the greatest weight with juries. Per Coleridge, J., Spilsbury's case, 7 C. and P. 196 (a). Phill. Ev. 305, 8th ed. “When a party comes to the conviction that he is about to die, he is in the same practical state as if called on in a court of justice under the sanction of an oath, and his declarations as to the cause of his death are considered equal to an oath, but they are, nevertheless, open to observation. For though the sanction is the saine, the opportunity of investigating the truth is very different, and therefore the accused is entitled to every allowance and benefit that he may have lost, by the absence of the opportunity of more full investigation by the means of cross-examination.” Per Alderson, B., Ashton's case, 2 Lewin, C. C. 147.

Dying declarationsevidence in answer to proof of.] As the declarations of a dying man are admitted, on a supposition that in his awful situation, on the confines of a future world, he had no motive to misrepresent, but, on the contrary, the strongest motives to speak without disguise and without malice, it necessarily follows that the party against whom they are produced in evidence may enter into the particulars of his state of mind, and of his behavior in his last moments; and may be allowed to show that the deceased was not of such a character, as was likely to be impressed with a religious sense of his approaching dissolution, 1 Phill. Ev. 238, 7th ed.

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Ground of admissibility

35 Cases where witnesses have made stateEffect of, in general


ments, and have afterwards been tried Must be voluntary 37 for the same offence

45 Cases in which they have been held inad- Evidence of facts, the knowledge of which missible

37 has been obtained by improper confesCases in which they have been held ad- sions, admissible

47 missible

38 Evidence of acts done in consequence of Inducement to confess—where held to have inducement, not admissible

48 ceased

40 Declarations accompanying the delivery Where held not to have ceased

41 up of stolen property, whether admisWhere the inducement to confess has pro


48 ceeded from persons having no author- Confessions evidence only against the parity •

ties making them

49 Confessions obtained by artifice, or decep- By Agents

51 tion, adınissible

44 The whole of a confession must be taken Confessions elicited by questioning admis. together

51 sible

45 Confessions of matters void in law, or false in fact



Ground of admissibility. The confessions of prisoners are received in evidence upon the same principle upon which admissions in civil suits are received, viz., the presumption that a person will not make an untrue statement militating against his own interest. Phill. Ev. 419, 8th ed.

(a) Eng. Com. L. Rep. xxxii. 487.

Efect of, in general.] A voluntary confession made by a person who has committed an offence, is evidence against him, upon which he may be convicted, although the confession is totally uncorroborated by other evidence (1). Wheeting's case, 1 Leach, 311 (n). Eldridge's case, Russ. and Ry. 440 (a). And even where there is no other proof of the corpus delicti, as where, on an indictment for robbery, the party robbed did not appear at the trial, it was held by the twelve judges, that the prisoner was properly convicted on his own confession. Falkner's case, Russ. and Ry. 481 (b). See also White's case, Id. 508 (c). Tippet's case, Id. 509 (d).

*With regard to the degree of credit, which a jury ought to [ *36 ] attach to a confession, much difference of opinion has existed (2). By some, it has been considered as forming the highest and most satisfactory evidence of guilt. Grose, J., delivering opinion of the judges in Lambe's case, 2 Leach, 554. The voluntary confession of the party in interest, says Chief Baron Gilbert, is reckoned the best evidence, for, if a man swearing for his interest can give no credit, he must certainly give most credit when he swears against it. Gilb. Ev. 137. So it is stated by the court in Warickshall's case, 1 Leach, 263, that a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt, and therefore, it is admitted as proof of the crime to which it refers. On the other hand, it is said by Mr. Justice Foster, (Discourses, 243,) that hasty confessions made to persons having no authority to examine, are the weakest and most suspicious of all evidence. Proof may be too easily procured, words are often misreported, through ignorance, inattention, or malice, and they are extremely liable to misconstruction. Moreover, this evidence is not, in the usual course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be and often is confronted. This opinion has also been adopted by Sir W. Blackstone. 4 Com. 357. It has been said, that it is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. i Phill. Ev. 110. (7th ed.) It cannot be doubted, however, that instances have occasionally occurred, in which innocent persons confessed themselves guilty of crimes of the gravest nature. Three men were tried and convicted of the murder of a Mr. Harrison. One of them confessed himself guilty of the fact, under a promise of pardon ; the confession, therefore, was not given in evidence against him, and a few years afterwards, it appeared that Mr. Harrison was alive. MS. case, cited i Leach, 264, (n). Mr. Phillipps also, in the last edition of his work, after stating that in criminal cases a confession carries with it a greater probability of truth than a confession in civil suits, the consequences being more serious

(1) State o. Guild, 5 Halst. 163. The People o. M'Fall, 1 Wheeler's Cr. C. 108. (2) Confessions ought always to be received with great caution, lest the language of the witness should be substituted for that of the accused. Law v. Merril, 6 Wend. 268. Malin o. Malin, 1 Id. 625. State o. Gardiner, Wright's Rep. 393.

The confession of an infant is competent, but the jury should be careful in weighing it. Mather o. Clark, 2 Aik. 209. A boy of twelve years and five months may be convicted on his own confession and executed. Capacity to commit a crime, necessarily supposes capacity to confess it. State o. Guild, 5 Halst. 163. See also Comm. 0. Yard, Mina's Trial, p. 10, the case of a boy of twelve years, where it was left to the jury, (the point being doubtful) to determine as a matter of fact, whether the confession was voluntary. State v. Aaron, 1 Southar1, 231, the case of a boy ten years old. Case of Stage & al. 5 Rogers' Rec. 177.

(a) 1 Eng. C. C. 440. (6) 1 Ibid. 481. (c) 1 Ibid. 508. (d) 1 Ibid. 509.

and highly penal“ habemus optimum testem, confitentem reum,” adds, “But it is to be observed there may not unfrequently be motives of hope and fear inducing a person to make an untrue confession which seldom operate in the case of admissions. And further, in consequence also of the universal eagerness and real which prevail for the detection of guilt when offences occur of an aggravated character, in consequence also of the necessity of using testimony of suspicious witnesses for the discovery of secret crimes, the evidence of confessions is subject, in a very remarkable degree to the imperfections attaching generally to hearsay evidence. See per Alderson B., Simons' case, 6 C. and P. 541 (a). Also 5 C. and P. 5127b). For these reasons the statements of prisoners are often excluded from being given in evidence in cases where they would be unobjectionable as the admissions of a party to a civil suit.” Pbill. Ev. 419, Sth ed.

[*37] * Must be voluntary-cases in which confessions have been held inadmissible after promises, &c.] A confession is not admissible in evidence, unless it was made freely and voluntarily, and not under the influence of promises or threats. “A confession forced from the mind by the flattery of hope or the torture of fear, comes in so questionable a shape, when it is to be considered the evidence of guilt, that no credit ought to be given to it, and therefore it is rejected.” Per Cur. Warickshall's case, I Leach, 263.

The rule extends to all statements by a prisoner which may affect him criminally, though in terms they charge another person ; Enoch's case, 5 C. and P. 540 c); or purport to be a refusal to confess. Tyler's case, 1 C. and P. 129 (n.)(d). Phill. Ev. 423, 8th edit. (n).

With regard to what is such a promise or threat as will exclude a confession, it is laid down by Mr. East, 2 P. C. 659, that saying to the prisoner, it will be worse for him if he do not confess, or that it will be better for him if he do, is sufficient to exclude the confession according to constant experience. Thus where a surgeon called in to a prisoner, under a charge of murder, said to her, “ you are under suspicion of this, and you had better tell all you know;" and after this, the prisoner made a statement to the surgeon. Mr. Justice James Parke, aster conferring with Mr. Justice Littledale, held that evidence of this statement was inadmissible. Kingston's case, 4 C. and P. 387 (e). So where a constable said to a prisoner charged with larceny, “It is of no use for you to deny it ; for there are the man and boy who will say they saw you do it;" a confession made after this, was rejeced by Gurney, B.

Mill's case, 6 C. and P. 146 (f). So where the words were, “ It would have been better if you had iold at first.” Walkley's case, 6 C. and P. 175 (8). So where the prosecutor said, “If you will tell me where the property is, I will be favorable to you ;" Gould, J. rejected the evidence, saying, that the slightest hope of mercy held out to a prisoner to induce bim to disclose the fact, was sufficient to invalidate a. confession. Cass's case, 1 Leach, 293 (n). So where the prosecutor, on the prisoner, who had stolen his money, being apprehended, said, “ He only wanted his money, and if the prisoner gave him that he might go to the devil if he pleased,” upon which the prisoner pulled some money out of his pocket, and (a) Eng. Com. L. Rep. xxv. 532. (b) Id. xxiv. 448. (c) Id. xxiv. 446. (d) Id. xi. 343.

(6) Id. xix. 434. (f) Id. xxv. 324. (g) Id. xxv. 340.

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