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was found at her lodgings, concealed between the sackings of her bed ; it was held that evidence of the finding was admissible. Warickshall's case, 1 Leach, 263. So the evidence of a third person, the knowledge of which is got at, through a confession obtained by favor, is admissible; as where the prisoner named the person to whom the property had been disposed of, it was held that such person might be called. Leach, 386. See also Mosey's case, 1 Leach, 265, (n).
Evidence of acts done in consequence of inducement-not admissible. It is said in Warickshall's case, 1 Leach, 265, that although confessions improperly obtained cannot be received in evidence, yet that any acts done afterwards might be given in evidence, notwithstanding they were done in consequence of such confessions. It seems however that such acts, if they are only tantamount to a confession, and are unsupported by facts, are inadmissible. A prisoner charged with stealing, was induced by a promise from the prosecutor to confess, and after confessing, carried the officer to a particular house where he said he had disposed of the property, and pointed out the person to whom he said he had delivered it. That person denied the fact, and the property was not found. The evidence of the confession was not received; but the evidence of his carrying the officer to the house was. The judges were of opinion that the latter evidence was not admissible. The confession was excluded, because being made under the influence of a promise, it could not be relied upon, and the acts of the prisoner under the same influence, and not being confirmed by the finding of the property, were open to the same objection. The influence which might produce a groundless confession might also produce groundless conduct. Jenkins' case, Russ. and Ry. 492 (a).
Declarations accompanying the delivery up of stolen property—whether admissible.] Declarations accompanying an act done, that act being corroborated by a fact, have in one case been admitted in evidence. The prisoner was tried for stealing a guinea and two promissory notes. The prosecutor was proceeding to state an improper confession, when Chambre, J., stopped him, but permitted him to prove that the prisoner brought to him a guinea and a 5l. Reading Bank note, which he gave up to the prosecutor, as the guinea and one of the notes that had been stolen from him. The learned judge told the jury, that notwithstanding the previous inducement to confess, they might receive the prisoner's description of the note, accompanying the act of delivering it up, as evidence, that it was the stolen note. A majority of the judges, (7.) held the conviction right. Lawrence and Le Blanc, JJ., were of a contrary opinion, and Le Blanc said, that the production of the money by the prisoner was alone admissible, and not that he said it was one of the notes stolen. Griffin's case, Russ. and Ry. 151 (b). And see Jones' case, Russ. and Ry. 152 (c); ante, p. 37, where the statement of the prisoner on producing some money out of his pocket, that it was all he had left *of [*49] it, was held inadmissible, the prosecutor having held out inducements to confess. Speaking of declarations accompanying an act, Mr. Phillipps observes, "it may be thought that the only ground upon which such dec
(a) 1 Eng. C. C. 492. (b) 1 Ibid. 151. (c) 1 Ibid. 152.
larations can be received is, that they are explanatory of the act of delivery, and not a narrative of a past transaction." Phill. Ev. 432, 8th ed.
Evidence only against the parties making them.] A confession is only evidence against the party himself who made it, and cannot be used against others. Tong's case, Kel. 18. Gilb. Ev. 137. Hervey's case, 1 Leach, 235 (1). So when it was proposed to be proved on the trial of three prisoners, that on their examination, one of them, who was charged by the examination of another with having jointly committed the felony in question, did not deny that what was so said was true, Holroyd, J. held that it was not competent to the prosecutor to go into such evidence, and said that it had been so ruled by several of the judges in a similar case, which had been tried at Chester. Appleby's case, 3 Stark. 33 (a). The same principle was acted upon in Melen v. Andrews, M. and M. 36 (b). "The deposition of a witness," says Mr. Justice James Parke, in that case, "taken in a judicial proceeding, is not evidence on the ground that the party against whom it is sought to be read was present, and had the opportunity of cross-examining. It clearly would not be admissible against a third person, who merely happened to be present, and who being a stranger to the matter under investigation, had not the right of interfering, and I think the same rule must apply here. It is true that the plaintiff might have cross-examined for commented on the testimony; but still, in an investigation of this nature, there is a regularity of proceeding adopted, which prevents the party from interposing when and how he pleases, as he would in a common conversation. The same inference, therefore, cannot be drawn from his silence, or his conduct in this case, which generally may from that of a conversation in his presence." But it would be otherwise, if what was said drew any answer from the prisoner; what passed in such a case would be evidence. See Child v. Grace, 2 C. and P. 193 (c). As to confessions and admissions in Conspiracy, vide post. ·
Where a confession by one prisoner is given in evidence, which implicates the other prisoners by name, a doubt arises as to the propriety of suffering those names to be mentioned to the jury. On one circuit the practice has been to omit their names: Fletcher's case, 4 C. and P. 250 (d), but it has been ruled by Littledale, J., in several cases, that the names must be given. Where it was objected on behalf of a prisoner whose name was thus introduced, that the witness ought to be directed to omit his name, and merely say another person, Littledale, J., said, “the witness must mention the name. He is to tell us what the prisoner said, and if he left out the name he would not do so. He did not say 'another person,' and the witness must give us the conversation just as it occurred;
(1) Morrison v. The State, 5 Ohio, 539. Lowe v. Boteler, 4 Har. & M'H. 346. Therefore on an indictment against A. for concealing a horse thief, it is not competent to give evidence of what the alleged horse thief confessed in the presence of A. to establish the fact that a horse was stolen: Ibid. Unless it be first established that they were partners in the guilty design. American Fire Co. v. The United States, 2 Peters, 364. Snyder . Laframbois, 1 Bre. 269. Commonwealth v. Eberle and al. 3 S. & R. 9. Wilbur v. Strickland, 1 Rawle, 458. Reitenback v. Reitenback, 1 Id. 362. The court will not inquire into the credibility of the evidence, which proves the conspiracy. Commonwealth v. Crowninshield, 10 Pick. 497. What is asserted in the presence of a party and not contradicted by him is evidence. Batturs v. Sellers & al. 5 Har. & J. 117. Hendrickson v. Miller, 1 Rep. Const. Ct. 300. Commonwealth v. Call, 21 Pick. 515.
(a) Eng. Com. L. Rep. xiv. 152. (b) Id. xxii. 329. (c) Id. xii. 84. (d) Id. xix. 369.
but I shall tell the jury that it is not evidence against the other prisoner Hearne's case, 4 C. and P. 215 (a). Clewes's case, Id. 225 (b).
*It is said by Mr. Phillipps, that a distinction might perhaps be [*50] taken in this respect, in case the confession has been reduced into writing, if that part which relates to the other prisoners is capable of being separated, and detached from the rest, and can be omitted without in any degree affecting the prisoner's narrative against himself. 1 Phill. Ev. 116, 7th ed. Upon this it may be remarked, that the same observation seems equally to apply to confessions not in writing, where the witness might be cautioned not to mention the names of the other prisoners, unless from such omission the confession, as affecting the party making it, should become unintelligible. The rule as laid down by Mr. Justice Littledale, has been acted upon by him in the case of written confessions also. A letter written by one of several prisoners was offered in evidence. It immediately implicated one of the others; and it was objected that the name of all but the prisoner in question should be omitted in the reading. But Littledale, J., ruled the contrary, and said that to make it evidence the whole must be read. Fletcher's case, I Lewin, C. C. 107; 4 C. and P. 260 (c), S. C. In a later case, before Parke, J., in which Fletcher's case was cited, the learned judge said, "I know that is Mr. Justice Littledale's opinion, but I do not like it. I do not think it the fair way." Barstow's case, I Lewin, C. C. 110. Other judges, however have ruled in the same manner as Mr. Justice Littledale. Alderson, J., Hall's case, 1 Lewin, C. C. 110. Denman, C. J., Foster's case, Id. See Morse's case, post, 56.
Upon the same principle, the confession of the principal is not admissible in evidence, to prove his guilt, upon an indictment against the accessory. This was long considered a doubtful point, and in a modern case, Bosanquet, J., is stated to have said that whatever is evidence against the principal, is prima facie evidence of his guilt, as against the accessory, to prove the felony. Blick's case, 4 C. and P. 377 (d), stated post. The law was, however, decided to be otherwise, by the judges in the following case: Turner was indicted for stealing sixty sovereigns, &c., by one Sarah Rich, then lately before feloniously stolen. To establish the larceny by Rich, the counsel for the prosecution proposed to prove a confession by her, made before a magistrate in the presence of the prisoner, in which she stated various facts, implicating herself and others, as well as the prisoner. Appleby's case, ante, p. 49, was cited on the other side, and Patteson, J., refused to receive as evidence any thing which was said by Sarah Rich respecting the prisoner, but admitted what she had said respecting herself, only. The prisoner was convicted. Having afterwards learned that a case had occurred before Mr. Baron Wood, at York, where two persons were indicted together, one for stealing and the other for receiving, in which the principal pleaded guilty, and the receiver not guilty, and that Mr. Baron Wood refused to allow the plea of guilty, to establish the fact of the stealing by the principal, as against the receiver. Patteson, J., thought it proper to refer to the judges the question. "Whether he was right in admitting the confession of Sarah Rich in the present case?" All the judges having met, (except Lord Lyndhurst, C. B. *and [ *51 ] Taunton, J.) were unanimously of opinion, that Sarah Rich's confession
(a) Eng. Com. L. Rep. xix. 350. (b) Id. xix 356. (c) Id. xix. 369. (d) Id. xix. 428.
was no evidence against the prisoner, and many of them appeared to think that had Sarah Rich been convicted, and the indictment against the prisoner stated, not her conviction, but her guilt, the conviction would not have been evidence of her guilt, which must have been proved by other means. The conviction was held wrong. Turner's case, I Moody, C. C. 347 (a).
By agents.] In general a person is not answerable criminally, for the acts of his servants or agents, and therefore the declarations or confessions of a servant or agent will not be evidence against him. But it is otherwise, where the declaration relates to a fact in the ordinary course of the agent's employment, in which case such declarations accompanying an act done, will be evidence in a criminal proceeding, as well as in a civil suit. See Rosc. Dig. Ev. N. P. 41, 5th ed. (1). Thus in the impeachment of Lord Melville by the House of Lords, it was decided that a receipt given in the regular and official form, by Mr. Douglas, (who was proved to have been appointed by Lord Melville, to be his attorney to transact the business of his office as treasurer of the navy, and to receive all necessary sums of money, and to give receipts for the same) was admissible in evidence against Lord Melville, to establish the single fact, that a person appointed by him as his paymaster, did receive from the exchequer a certain sum of money in the ordinary course of business. How. St. Tr. 746.
In what cases a prosecutor may be affected by the acts and declarations of his agents does not appear to be well decided. In the Queen's case, the judges held that it was not competent to show that the agent of the prosecutor, not called, offered a bribe to a witness, who was also not called. The question, the Lord Chief Justice observed, regarded the act of an agent addressed to a person not examined as a witness in support of the indictment, the proffered proof not apparently connecting itself with any particular matter deposed by the witness, who had been examined in support of the indictment, and leaving, therefore, those witnesses unaffected by the proposed proof, otherwise than by way of inference and conclusion. His Lordship added, that notwithstanding the opinion he had delivered, he was by no means prepared to say that in no case, and under no circumstances, appearing at a trial, it might not be fit and proper for a judge to allow proof of this nature to be submitted to the consideration of a jury; and that the inclination of every judge was to admit, rather than exclude, the offered proof. 2 Brod. and Bingh. 302 (b).
The whole of a confession must be taken together.]. In criminal, as well as in civil cases, the whole of an admission made by a party is to be taken together. See Rosc. Dig. Ev. N. P. 50, 5th ed. (2). The rule is
(1) American Fire Co. v. The U. States, 2 Peters, 364. U. States v. Morrow, 4 Wash. C. C. Pep 733.
(2) Unless its improbability renders it necessary that the defendant should prove what he asserts in avoidance of a conceded fact. Newman v. Bradley, 1 Dall. 340. Farrel v. M'Clea, Id. 392. The jury may believe part and disbelieve part. Fox v. Lambson, 3 Halst. 275. Bank of Washington v. Barrington, 2 Penn. 27. Young v. The State, 2 Yerg. 292. Yet such parts must be distinct, and relate to different matters of fact. Fox v. Lambson, 2 Halst. 275. See Hick's case, 1 Rogers' Rec. 66. The People v. Weeks, 3 Wheeler's C. C. 533. The rule does not exclude a confession where only part of what the defendant said has been (a) 2 Eng. C C. 347. (b) Eng. Com. L. Rep. vi. 126.
thus laid down by Abbott, C. J., in the Queen's case, 2 Brod. and Bingh. 297 (a). If, on the part of the prosecution, a confession or admission of the defendant, made in the course of a conversation with the [*52] witness, be brought forward, the defendant has a right to lay before the court the whole of what was said in that conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the matter introduced on the previous examination, provided only that it relates to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said on the same occasion. "There is no doubt," says Mr. Justice Bosanquet, "that if a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another; and if there be either no other evidence in the case, or no other evidence incompatible with it, the declaration so adduced in evidence must be taken as true. But if, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so, and then the statement of the prisoner, and the whole of the other evidence must be left to the jury, for their consideration, precisely as in any other case where one part of the evidence is contradictory to another. Jones's case, 2C. & P. 629 (b). Where a prisoner was indicted for larceny, and in addition to evidence of the possession of the goods, the counsel for the prosecution put in the prisoner's statement before the magistrate, in which he asserted that he had bought the goods, Garrow, B., is reported to have directed an acquittal, saying, that if a prosecutor used a prisoner's statement, he must take the whole of it together. Anon. cited arg. Jones's case, 2 C. and P. 630 (c). It must not, however, from this, be supposed that every part of a confession is entitled to equal credit. A jury may believe that which charges the prisoner, and reject that which is in his favor, if they see sufficient grounds for so doing. Thus in à case. similar to that before Mr. Baron Garrow, the prosecutor having put in the prisoner's examination, which merely stated that "the cloth was honestly bought and paid for," Mr. Justice J. Parke told the jury, "if you believe that the prisoner really bought and paid for this cloth, as he says he did, you ought to acquit him, but if, from his selling it so very soon after it was lost, at the distance of eight miles, you feel satisfied that the statement of his buying it is all false, you will find him guilty." Higgin's case, 3 C. & P. 603 (d). So where a prisoner, charged with murder, stated in his confession that he was present at the murder, which was committed by another person, and that he took no part in it, Littledale J., left the confession to the jury, saying, "it must be taken altogether, and it is evidence for the prisoner as well as against him; still the jury may, if they think proper, believe one part of it and disbelieve another." Clewes'
overheard. State v. Covington, 2 Bailey, 569. But in such case the defendant would, without doubt, be allowed to prove the whole.
If a prisoner, in speaking of the testimony of one who had testified against him, says, that "what he said was true so far as he went, but he did not say all or enough;" this is not admissible as a confession, nor does it warrant proof to the jury of what the witness did swear to. Finn v. The Commonwealth, 5 Rand. 701.
(a) Eng. Com. L. Rep. vi. 121. (b) 1d. xii. 292. (c) Id. xii. 293. (d) Id. xiv. 476.