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it not be more surprising to find any waiting to meet the course of justice ?(n)
§ 247. We must not, however, dismiss this subject without observing that cases sometimes occur where an offence has been committed under the prospect of impunity *offered by a change of place re- r #333 i solved on from other motives.
§248. Few things distinguish an enlightened system of judicature from a rude and barbarous one more than the way in which they deal with evidence. The former weighs testimony, while the latter, conscious, perhaps, of its inability to do so, or careless of the consequences of error, at times rejects whole portions en masse, and at others converts pieces of evidence into rules of law, by investing with conclusive effect some whose probative force has been found to be in general considerable. If any proof of this were wanting, it would be amply supplied by the history of our law with reference to the species of evidence under consideration. Our ancestors, observing that guilty persons usually fled from justice, adopted the hasty conclusion that it was only the guilty who did so, according to the maxim, "Fatetur facinus qui fugit judicium."(o) So that, under the old law, a man who fled to avoid being tried for felony forfeited all his goods even though he were acquitted ;(p) and the jury were always charged to inquire, not only whether the prisoner were guilty ot the offence, but also whether he fled for it, and, if so, what goods and chattels he had. This practice was not formally abolished until the stat. 7 & 8 Geo. 4, c. 28, s. 5. In modern times more correct views have prevailed, and the evasion of, or flight from justice, seems now nearly reduced to its true place in the administration of the criminal law, namely, that of a circumstance—a fact which it is always of importance *to j- #324 ] take into consideration, and combined with others may *- * aflbrd strong evidence of guilt, but which, like any other piece of presumptive evidence, it is equally absurd and dangerous to invest with infallibility.
§ 249. VIII. Fear Indicated By Passive Deportment.—The emotion of fear indicated by passive deportment, when a party is either accused, or perceives that he is suspected of an offence, is frequently relied on as a criminative circumstance. The physical symptoms which may be indicative of fear are thus enumerated by Mr. Bentham :—"Blushing, paleness, trembling, fainting, sweating, involuntary evacuations, weeping, sighing, distortions of the countenance, sobbing, starting, pacing, exclamation, hesitation, stammering, faultering of the voice," &c. :(q) and, as the probative force of each depends on the correctness of the inference, that the symptom has been caused by the feeling of fear of detection or punishment for the offence imputed, two classes ofinfirmalive circumstances naturally present themselves.
kj 250. 1st. The emotion of fear may not be present at all in the mind
(n) What a picture of the state of criminal procedure in the country where he lived is presented by the declaration of the French advocate," Je fuirais, si l'on m'accusait d'avoir vole les clochers de Notre Dame." 3 Benth. Jud. Ev. 175.
(o) 5 Co. 109 b; 11 Co. bO b. A similar notion seems to have prevailed among the earlier eivihn.% who laid down the maxim, " Reus per fugam sui pene accusator existiu" See Voet . ad Pand, lib, 22, tit . 3, n. 5. (p) Co. Litt. 373. a. and b.
(o/ 3 Benth. Jud. Ev. 153.
of the individual. Several of the above symptoms are indicative of disease, and characteristic of other emotions, such as surprise, grief, anger, &c. With respect to the first of them, for instance, "blushing," the flush of fever and the glow of insulted innocence are quite as common as the crimson of guilt .
Think you that red spot,
T #325 1 *®ut secon(Ny,tne emotion of fear, even if actually present ■- -" although presumptive, is by no means conclusive evidence
of guilt of the offence charged. The alarm may be occasioned by consciousness of some other crime committed either by himself, or some other individual connected with him by some tie of sympathy, and on whom the inquiry may bring down suspicion or punishment;(r) or even by the recollection of a fact, through which, without any delinquency at all, vexation has been, or is likely to be, produced to himself or others.(r) To these may be added the apprehension of condemnation and punishment, (though innocent), or of vexation and annoyance from prosecution,—a circumstance, the weight of which, like that of the evasion of justice, depends very considerably on the character of the tribunal before whom the trial is to take place, and the mode of criminal procedure in the country ;(r) and, lastly, the rare, although no doubt possible, case of the falsity of the supposed self-criminative recollection. This may arise either from mental derangement, or habitual delinquency; e. g. an habitual professed thief is taken into custody for a theft with which he had nothing whatever to do— that he should show symptoms of fear is natural enough, and confounding one of his exploits with another, may (especially if the time of the supposed offence be very remote) suppose himself to recollect a theft in which, in truth, he bore no part.(s)
§251. Closely allied to this subject is the inference of the existence of alarm, and through it of delinquency, derived from confusion of T #326 1 mmd' as Detrayed by countenance, *discourse, or conduct, L J or by all three.(<) This, however, like the former, is sub
ject to the infirmative circumstances—1st. That the alarm may be caused by the apprehension of some crime or circumstance coming to light, other than that with which the party is charged,(u) or of which he stands suspected; and, 2nd, The consciousness that, although innocent, appearances are against him.
§ 252. IX. Fear Indicated By A Desire For Secrecy.—The other mode by which the presence of fear may be evidenced is by acts shewing a desire for secrecy; such as doing in the dark what would other
(r) 3 Benth. Jud. Ev. 157. («) Id. 167, 158.
(t) 3 Benth. Jod. Ev. 149.
(u) The following excellent instance of this is given in the note to 3 Benth. Jud. Ev. 151; u Bolingbroke being suspected of harbouring a person accused of a state crime, his house, and even his bed chamber, as he was lying in his bed, were searched by the ministers of justice. Traitorous bedfellow with him he had none: a bedfellow, however, he had,—a female whose reputation would have been ruined by the disclosure; and confusion, more or less, he must have betrayed. His presence of mind saved himself and her, by uncovering enough of her person to indicate the sex, without betraying the individual."
wise have been done in the day; choosing a retired spot; disguising the person; taking measures to remove witnesses from the scene of action, &c.(z) Acts of the above nature are frequently capable of explanation. 1st. It is perfectly possible that the design of the person seeking secrecy may be altogether innocent.(y) The lovers of servants, for instance, are sometimes taken for thieves, and vice versa. 2ndly. The design, even if criminal, may be with a different object, and of a degree infinitely less culpable than that attributed; as, for instance, where a man, with *a view of making sport by alarming r #327 i his neighbours, dresses himself up to pass for a ghost, &c(z). *-'
§ 253. X. Confessorial Evidence.—The evidence of guilt, derived from criminative statements, may be either of a direct or presumptive nature.(a) Where guilt is avowed in language which, if believed, leaves no room for doubt or inference, the statement is substantially the deposition of a witness to the physical facts which form the basis of the charge, accompanied by an avowal of the psychological part by the person who of all others has the strongest interest to conceal it. Confessions of this kind are said to be full, direct, or plenary.(6) But where there the words used do not necessarily import guilt, the criminative inference from them is of the nature of presumptive evidence. Thus, where a man says, " I murdered A.," or "stole the goods of B.," the statement is, if believed, proof positive of delinquency. But where A. has been found murdered, or the goods of B. proved to have been stolen, and the accused or suspected person says, " I am very sorry that I ever had anything to do w ith A.," or " that I ever meddled with the goods of B.," theexpressions are obvionsly ambiguous; for, although consistent with an intention to avow guilt, they are equally so with an expression of regret that circumstances should have occurred to induce unjust suspicion on the speaker.
§ 254. Confessions or statements by accused or suspected persons are said to be "judicial," when they are made in the course of a judicial proceeding; as, for instance, in the presence of a judge or magistrate; and *" extrajudicial," when made in writing out of r #„gQ -1 court, or to, or in the hearing of, a private individual.(c) *
"Judical confessions of guilt," says Professor Greenleaf, " are sufficient to found a conviction, even if to be followed by a sentence of death, they being deliberately made under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge. Such was the rule of the Roman law,' Confessos injure, projudicalis haberi placet;' and it maybe deemed a rule of universal jurisprudence."^) Still, if the confession appear incredible, especially if there are no traces to be found of a corpus delicti, or it is manifest that the prisoner has some collateral object in view, to induce him to make a false one,(e)
(z) 3 Benth. Jud. Ev. 160,161. (y) Id. 162.
(*) 3 Benth. Jud. Ev. 163. (a) Id. 103. (6) Id. 107.
(c) Greenl.L. E. art. 216, p.250; Benth. Jud. Ev. 109, 122; Poth. Oblig. arts. 797, SOI. "Whatever a prisoner has been overheard to say to another person, or even to himself, is receivable as evidence against him ;" (Per Alderson, B., in R. v. Simons, 6 C. & P. 540, (25 Eng. Com. Law Reps.) With respect to what a person has been heard to say when talking in his sleep, sec R. v. Eliz. Sippets, Kent Summer Ass., 3 Vict., and 6th Monthly Law Mag. 154.
(d) Greenl. L. E. 250, art. 216 ; Phill. Ev. 419, 8th ed.; Dig. lib. 42, tit. 2.; Cod. lib. 7, tit. 59, De confessis; Poth. Obi. art. 798; 11 Co. 30. a.; R. v. Fisher, 1 Leach, 287; R. v. Waxickshall, Id. 222. (*) See infra.
the judge ought not to receive it. So, if it appear to be made in consequence of a promise of leniency, or threat of punishment, &c.
§255. But the subject of extrajudicial confessions will require more attention; and here it will be necessary to consider, 1st, their admissibility in evidence; and 2ndly, their force and effect when received.
§ 256. First, of their admissibility. It is an established principle of English law, that every confession or criminative statement of any kind, T *329 1 wnicn nas eitner *been extracted by any species of physi*- J cal torture, coercion, or duress of imprisonment,^) or been
made in consequence of inducements held out to the accused by any person in whose custody he is or who has any lawful authority, judicial or otherwise, over his person, or the charge against him, ought to be rejected. "The presumption of the truth of a statement," say the books, " is supposed to cease, when there is ground to apprehend that it may have been wrung from a timid and apprehensive mind, deluded by promises of safety, or subdued by threats of violence or punishment."^) But, in order to have this effect, the inducement to confess must be held out by some person in authority, and be of a nature calculated to convey to the mind of the party that his condition relative to the charge against him will be rendered better or worse by his consenting or refusing to confess. If it only refer to other collateral advantages, such as a mere promise of indulgence,(i) or to spiritual advantages, as in the case of exhortations by a clergyman,(A) or be held out by a person whose interference is altogether officious, the confession or statement will be receivable,(/) as it also will, when the supposed influence of the illegal inducement to confess may fairly be presumed to have been previously dissipated by a warning from a person in authority not to pay any attention to what was said.(w) The cases on the subject of what shall be deemed an illegal inducement to confess
T *330 1 are very *numerous, and not altogether consistent with >- * each other.(n)
& 257. We next come to consider the force and effect of extrajudicial confessions when received—a subject on which different opinions seem to have prevailed. In one case,(o) Heath, J., at the Old Bailey, is reported to have laid it down as " an established rule of law that the mere confession of a crime, without any one single circums tance to corroborate it, is not sufficient to convict a prisoner, unless he should again confess the fact by pleading guilty to the indictment;" and the prisoner seems to have been acquitted in that case, although there was clear proof of a corpus delicti independent of the confession. It is, however, utterly impossible to support this ruling, for it is now completely settled, that, at least where there is proof aliunde of a corpus delicti, a full and free confession of the accused is suffice Phill. Et. 427, 8th ed.
(A) Id. 423; R. v. Wurrickshall, 1 Leach, 222; Roscoe's Cr. Ev. 37, 2nd. ed.
(t) R. v. Lloyd, 6C. & P. 393, (25 En?. Com. Law Reps.); R. v. Green, Id. 656. (Id.)
(*) R. v. Gilham, 1 Mo. C. C. 166, (2 Br. C. C.); R. v. Wild, Id. 452.
(/) So finally settled by the judges in R. v. Taylor, 8 C. & P. 733, (34 Eng. Com. Law Reps.)' (ml Phill. LV 431, 8th. ed.
(n) See the cases collected, Phill. Ev. 423, et seq., 8th ed.; Roscoe's Cr. Ev. 37, 2nd ed.; Archbold's Cr. Plead. 116, Uth ed. (e) R. v. Fishor, I Leach, C.L. 286.
cient, without any confirmation whatever, to warrant a conviction.(p) And where the proof of the corpus delicti is imperfect, the statement of the accused may be taken to complete it. Thus, in R. v. Eldridge,((/) which was an indictment for stealing a mare, the only evidence, in addition to a full confession made by the prisoner before a magistrate, was, that, on the 9th October, 1820, a servant of the prosecutor had been seen taking the mare towards one of the prosecutor's fields, that it was not found in the prosecutor's possession on the morning of the 11th, and, on the 13th, the prisoner was found •dealing with the mare as his own, and offering her for r #ggj -. sale. The prisoner having been convicted before Bur- -* rough, J., the judges, on a case reserved, held the conviction right. So, in R. v. White and Langdon.(r) which was an indictment against the prisoners for stealing four bushels of oats, it appeared, at the trial before Burrough, J., that the prosecutor, who was a stable-keeper, had in his granary a quantity (sometimes more, sometimes less) of black Irish kiln-dried oats. On the 24th December, the granary door was found unhinged and drawn back, but the prosecutor could not swear that he had lost any oats. It appeared by the evidence of another witness, that, at the hour of half-past two on that morning, two persons, not identified, were seen coming from the prosecutor's yard, each with a sack on his shoulders; and another witness proved that the prisoner White had been seen on the same day dealing with four bushels of oats similar to that in the granary of the prosecutor. To this evidence was added a full confession made by both prisoners when before the magistrate, who were convicted, and the conviction was afterwards held right by the judges. In R. v. Tippet.(s) also, before the same judge, the indictment was for stealing two bushels of oats, the property of the same prosecutor; and the proofof the loss of the oats was the same as in the former case, theother evidence being that the prisoner was an under-ostler in the stables of the prosecutor, and that he had, when before the magistrate,made a full confessionof his guilt. The prisonerwas convicted, and,on a case reserved, seven judges, who were all that met on the occasion, were of opinion that the conviction was right, *as there was not only the confession, but the evi- r- #332 -I dence of the prosecutor, which made it probable that the J oats had been stolen, as it showed that the door of the granary had been broken open. "And most of the learned judges," continues the report, " thought that, without the owner's evidence, the prisoner's confession was evidence on which the jury might have convicted." This latter view is strongly supported by the case of R. v. Faulkner and Bond.(<) That was an indictment for robbery, in which the only evidence was a full confession by the prisoners to a constable and before the magistrate, and that one of them had been desirous of sending a message to the prosecutor to keep him from appearing, and who, in point of fact, did not appear when called on his recognisances. On this evidence, the counsel for the prosecution expressed a doubt, whether the confession of a prisoner alone, without proof
(p) R. v. Lambe, 2 Leaeli, 553; R. v. Warickshall, 1 Leach, 222; R. y. Wheling, 1 Loach, C. C.287, n.; R. v. Read, Id. (q) R. & R. C. C. 440, (1 Br. C. C.)
(r) R. at R. C. C. 508, (1 Br. C. C.) («) Id. 509.
(0 R. & R. C. C. 481, (1 Br. C. C.) February, 1845.—13