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hysteric affections, for the actual interviews and impressions of Satan."(r)
§ 272. The above causes affect, more or less, every species of confessorial evidence. But extrajudicial confessions, especially when not plenary, are subject to additional affirmative circumstances, which it is to be feared, are too much overlooked in practice. These are, 1st, Mendacity in the report: the supposed confessorial statement may be either wholly, or in part a fabrication of the deposing witness. And here it is essential to remember, that of all testimony this is the most easily fabricated and the most difficult to disprove; for, from its very nature, it is seldom possible to confront and expose its falsehood by positive, or, indeed, even by presumptive evidence.(s) 2ndly, Misinterpretation; which may arise from various causes: first, the party suspected may be entirely blameless, and seeking secrecy from a different motive: e. g. a paper in his handwriting is found in his possession, in which he is treated and spoken of as the author of the offence imputed to him; this, which is consistent with his guilt, is equally so with the paper being only a copy of the original, and r #343 -i *taken by the party with the view of refuting its allega- *- * tions, or keeping it by him until an opportunity presents itself of bringing the libeller to justice.(£) Secondly. Entirely fallacious suspicions sometimes arise from words uttered in jest, or by way of bravado; as where a man wrote to his friend, who was summoned as a juror on a political trial, conjuring him to convict the defendant, guilty or innocent.(a) But equally unfounded inferences are sometimes drawn where the confessorial words are used with reference to an act which is not identical with that which is the subject of accusation; as where a man, who has robbed or beaten another, on hearing that he has since died, utters an exclamation of regret at ever having had any thing to do with him. But of all causes of misinterpretation of statements made by suspected persons, the greatest is to be found in the haste or eagerness of witnesses, and that love of the marvellous so incident to the human mind, by which they are so frequently prompted to imagine or exaggerate facts, or mistake expressions, especially where the crime charged against the accused has any thing very peculiar or atrocious about it.(x)
(r) Hume's Commentaries on the Criminal Law of Scotland, vol 1, p. 591.
(u) Id. 115. The unfortunate result of the case of Richard Coleman, in 1748, was partly owing to this cause. One Sarah Green had been brutally assaulted by three persons, one of whom called another by the name of the prisoner. She afterwards died of the injuries she received. Coleman, who was in a public-house rather intoxicated, was asked by a person there, whether he was not one of the party concerned in that affair, to which he answered, " If I was, what then?" He was convicted and executed; but the real criminals where afterwards discovered. Wills, C. E. 94.
(z) See note to Earle v. Picken, 5 C. & P. 542, (24 Eng. Com. Law Reps.;) Phil!. Ev. 459, 8th ed. A remarkable instance of this is presented in the case of R. v. Simons, 6 C. & P. 540, (25 Eng. Com. Law Reps.) The prisoner was indicted for the then capital offence of having set fire to a barn; and a witness was called to prove, that, as the prisoner was leaving the committing magistrate, ho was overheard to say to his wife, "Keep your, ■elf to yourself, and don't marry again." To confirm this another witness was called, who had also overheard the words, and stated them to be, "Keep yourself to yourself, and keep your own counsel;" on which Alderson, B., remarked, "One of these expressions is widely different from the other. It shows how little reliance ought to be placed on such evidence." The prisoner was acquitted.
T *344 1 *^ t^ird cause of error in confessions of this
*• J nature is incompleteness, or where the confessorial words,
although not misunderstood as far as they go, convey a false impression, for want of some explanation which the speaker either neglected to give, or has been prevented from giving, through interruption, &c; as where a man says, " I killed A. B.," but does not add that it was in self-defence; or, in a case of larceny, says, " I took the goods of the prosecutor," but omits to add that he did so under the belief that he was justified in so doing, &c.
§ 274. It is proposed to conclude this chapter, and with it the present work, by briefly adverting to what seem to be the chief practical defects in the administration of justice in this country, where the evidence against a person charged with an offence is of a presumptive nature. Some of these defects are to be found in the practice of our criminal courts, while others are traceable to extrinsic circumstances. Again, the effect of some is to give undue advantage to the prosecution, where others exercise an unfair influence in favour of the accused. In the first place, too great weight is generally attributed by judges to a supposed power of explanation by the accused of facts which raise a prima facie case against him. This is chiefly percepr «34g -i tible in charges of larceny, *where the evidence against *- * the accused consists wholly or principally of the circum
stance of the stolen goods having been found in his possession shortly after the theft. The legitimate presumption arising from this, together with its infirmative circumstances, have been already considered ;(y) and it will be sufficient to add that its weight is considerably diminished when the accused has not had the benefit of legal advice previous to his trial, or wants the means of paying the expenses of witnesses to come from any distance to give evidence in his favour. This last observation, of course, applies more or less to any case where guilt is sought to be inferred from the non-explanation of circumstances, and the difficulties has been increased by the construction put by the judges on the 6 & 7 Will. 4, c. 114, commonly called the Prisoner's Counsel Act, by which a prisoner, charged with felony, is allowed to make his full defence by counsel as he previously might in treason and misdemeanor. In the construction of this statute, it has been held, that where the prisoner has no counsel, he may state his defence to the jury, and, although he call no witnesses to establish that defence, it is for them to take its probability into their consideration; but that counsel, employed by prisoners, are bound by the general rule of practice not to open to the jury any fact which they are not prepared to substantiate by evidence.(z) In all cases, therefore, where the prisoner's defence rests on mere explanation of a prima facie case, his employing counsel causes his defence to be
(z) R. v. Beard, 8 C. & P. 142, (34 Eng. Com. Law Reps.); R. v. Butcher, 2 M. & Rob. 229; R. v. Burrows, Id. 124. See, however, R. v. Malings, 8 C. & P. 242, (34 Eng. Com. Law Reps.); and R. v. Walking, Id. 243.
suppressed—a state of *things hardly contemplated by the r #g^„ framers of the statute, and certainly at variance with the *• -• principle of natural justice. It is sought to defend this anomalous proceeding on the ground that the prisoner's counsel may put his client's defence before the jury in a hypothetic form; but how feebly does this tell in comparison with a manly, straightforward explanation.
§ 275. Thus far the practice of our criminal courts seems hostile to the interests of the accused. But there are errors of an opposite kind. Thus, a tendency has sometimes exhibited itself to reject articles of presumptive evidence, on the ground of their being weak, or even inconclusive—not remembering that it is the very nature of presumptive proof to be made up of a number of detached circumstances, most, if not all, of which, when taken singly, weigh little or nothing, but which, when joined together, are often, as Mr. Bentham remarks, found to press on the delinquent with the weight of a millstone.(a) Again, there is far too great a desire evinced to stop the mouth of the accused, and not allow him to criminate himself. Every care should of course be taken to prevent a prisoner's being tortured, frightened, weedled, or coaxed into making a statement, but to dissuade him from free and voluntary confession is stopping up one of the sources of justice; and, indeed of late years this injudicious practice seems somewhat on the decline.(6)
6 276. We have already noticed the great *indulgence r #341* -i shewn to witnesses who come to bear testimony to the L J good character of persons on their trial.(c) It is not the practice of the bar to cross-examine such witnesses, unless there is some specific charge on which to found a cross-examination; or at least without
fiving notice of an intention to cross-examine, if they are put into the ox; the judges discourage the exercise of the undoubted right of prosecuting counsel to reply on their testimony; and the most obvious perjury in giving false characters for honesty, &c. is everyday either overlooked, or dismissed with a slight reprimand. But surely this is mercy out of place. If mendacity in this shape is not to be discouraged, tribunals will naturally be induced either to look on all character evidence with suspicion, or attach little weight to it. Now there are many cases in which the most innocent men have nothing to oppose in answer to criminal charges but their reputation, and to deprive this of any portion of the weight legitimately due to it is to rob the honest and upright citizen of the lawful reward of his good conduct. In this, as in many other instances, the old legal maxim holds good, "Minatur innocentes qui parcit nocentibus."(rf)
§ 277. But the pure administration of justice does not depend wholly on the practice of tribunals—its stream, and even its source, may be poisoned by malpractices as well as by mistaken notions
(a) 3 Benth. Jud. Ev. 242. So, Quintilian, Inst . Orat., lib. 5, e. 12, "Infirmiora (acil. argumenta) congreganda sunt. * * * Singula levia sunt, et communia, universa vero nocent, etiamsi non ut fulmine, tamen ut grandine."
(6) 1 Phil!. &. Am. Ev. 428; R. v. Green, 5 C. & P. 312, (24 Eng. Com. Law Reps.); R. v. Arnold, and another case, Kent Summer Assizes, 2 Vict., MS., and 3 Jurist, 814.
(e) Supra, Part II., cbap. 8. (d) 4 Co. 45 a.
elsewhere. Among the former of these, it will only be necessary to notice one of the most formidable, namely, misconduct in the public t *348 1 pres3- When facts have come to Might, indicating the *• J commission of some offence peculiar or alrocious in its
character, the press of this country has too often forgotten the honourable position it ought to occupy, and the fearful responsibility consequent on the abuse of its power. Under a horror, real or affected, of the crime, but more probably with the view of pandering to excited curiosity and morbid feelings in the public, a course is taken calculated to deprive the unfortunate person suspected of all chance of a fair trial. For weeks or months previous to it, his conduct and character are made the continual subject of discussion in the public prints, and, through their influence, every where else. Circumstantial descriptions of the mode in which the crime was committed, and in some cases actual delineations of it, with the accused represented in the very act,—elaborate histories of his past life, in which he is frequently spoken of as guilty of crimes innumerable,—minute accounts of his conduct in the retirement of his cell, and when under examination, —and, lastly, expressions of rage and wonder that he has had the audacity not to confess his guilt, are daily and hourly poured forth. In one case, matters were carried so far, that while certain parties were awaiting their trial for murder, the whole scene of the murder, of which, of course, they were assumed to be the perpetrators, was r #349 -] dramatized, and represented on the stage to a metropolitan ■ audience.(e) The "necessary consequence is, that a firm
belief of the guilt of the accused is silently and imperceptibly worked into the minds of the better portion of society, while those of the rest are inflamed to the highest pitch of excitement and exasperation against him. In the midst of all this he is brought to trial, which, under such circumstances, can be little better than a mockery. The judge and jury who sit in judgment on such a man are not looked on, perhaps even by themselves, as individuals chosen to investigate calmly the guilt or innocence of the accused,—they are rather expected to be the formal registrars of a verdict of guilty, already unjustly and iniquitously given against him by society, before he was heard in his defence.
§ 278. There is another source of mischief, namely, the prevalence of superstitious notions; which, although much diminished by the
(e) Trial of John Thurtell and Joseph Hunt for the murder of William Weare, London, 1824. Weare was murdered on the 17th October, 1823; the play was represented at the Surrey Theatre on the 17th November in the same year; and Thurtell and Hunt were tried on the 7th January, 1824. It also appeared, that, before the trial, prints delineating the murder were published in the newspapers. Notwithstanding that all this, with many other circumstances equally unjust and disgusting, were brought before the judge of assize by affidavit, an application to postpone the trial until the next assizes was refused. A more just course was taken by Parke and Alderson, I'D., in the recent case of R. v. Archibald Bolam, (2 M. & Rob. 192), who was indicted at the Spring Assizes of 1839, for the murder of John Millie. These learned judges then made the precedent (well deserving imitation) of postponing the trial until the next assizes, on an affidavit made by the prisoner's attorney, that the prejudice and excitement raised against the prisoner, chiefly by the local newspapers, was so strong, that an impartial trial could not reasonably be expected. This conduct was the more cruel, as few cases have presented a more mysterious aspect, or required more careful consideration than that of Bolam. He was afterwards (bund guilty of manslaughter.
march of enlightenment and civilization, are by no means extinct. The days are, it is true, gone by, when supernatural agency was allowed to supply chasms in a chain of proof, when persons were condemned on the testimony of *apparitions,(g) or of corpses r *oea -i bleeding at their touch ;(h) but the spirit of superstition * is ever the same. There is a notion, still very prevalent among the lower orders of society, (although by no means confined to the lower orders,) that no person would venture to die with a lie in his mouth; and, consequently, that when a criminal awaiting his execution, especially a criminal who has evinced religious feeling, makes a solemn protestation of *his innocence, no alternative remains but r #g,.j -. to believe him, and that the tribunal by which he was * * condemned is either corrupt or mistaken. It is difficult to imagine a fallacy more dangerous to'the peace of society than this. Conceding that asseverations of innocence are always deserving of consideration by the executive, what is there to invest them with a conclusive efficacy, in opposition to a chain of presumptive evidence, the force and weight of which falls short only of mathematical demonstration 1 It is said that the criminal is standing on the confines of a future world,—true; but perhaps he may not believe in its existence. Take, however, the strongest case. Suppose his faith undoubted, that he has been most attentive to his religious duties, and, up to the very moment of execution, has displayed a becoming sense of contrition for past offences in general, but solemnly declares his innocence of the crime for which he is about to suffer,—must he necessarily be believed? Is there nothing else to be taken into consideration? Recollecting the obloquy which an avowal or non-disclaimer of his guilt will bring on his family and connexions,—that its effect will be to expose them to the finger of scorn and contempt for generations to come, and possibly (especially among the lower orders of Irish) reduce them to poverty,or drive them to self-expatriation,we shall not feel astonished if a criminal, whose notions of morality were perhaps never very clear,
(g) At the trial of Alexander Bain Macdonald and another, in 1754, for murder, before the High Court of Justiciary, in Scotland, two witnesses were allowed to swear to their having seen a ghost or spirit, which they said had told them where the body was to be found, and that the pannels (the accused) were the murderers. (Burnett's Crim. Law of Scotland, p. 529, and 14 Ho. St. Tr. 1327.) See also the unfortunate case of John Miles, who certainly owed some of his conviction to the reports spread through the neighbourhood, that the house, the scene of the supposed murder, (for none had been committed in reality, the deceased having accidentally fallen into a deep privy, where no one thought of looking for him), was haunted, and that the ghost of the deceased had appeared to an old man and denounced Miles as bis murderer. Theory of Presumptive Proof, Append., case, 5.
(A) Huberus, Prel. J. C, lib, 22, tit. 3, n. 15, when speaking of slight presumptions, says, " Hue etiam pertinet fama sive rumor, et fuga item fluxus sanguinis e cadavcre, ad alicujus preesentiam respectu cadis. Id enim ut aliquando dedcrit occasionem homicidas detcgendee, ita seBpe sliis causis, licet occultis, evenisse legitur." See, also, Burnett's Criminal Law of Scotland, p. 529. In this country, in the case of Mary Norkott and others, who were tried on an appeal of murder at the bar of the King's Bench, in 1627 or 1628, (for the precise date is not given), two old and respectable clergymen swore, that, the body having been taken out of the grave and laid on the grass thirty days after the death, and one of the parties required to touch it, " the brow of the dead, which was before of a livid and carrion colour, began to have a dew or gentle sweat arise on it, which increased by degrees, till the sweat ran down in drops on the face, the brow turned of a lively fresh colour, and the deceased opened one of her eyes, and shut it again; she likewise thurst out the ring or marriage finger three times, and pulled it in again, and the finger dropped blood from it on the grass." 14 Ho. St. Tr. 1324.