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character and circumstance. (*) Upon this principle, in one case, the declarations of a mob were held admissible. (4)

Interest.] Declarations of deceased persons, having no interest in misrepresenting, or who speak against their own interest, have been admitted. On this ground, entries by a deceased rector or vicar, of the receipt of ecclesiastical dues, are admissible for his successor. (u) So, entries by a deceased collector of rates, made by him in the book of his office, charging himself with the receipt of money, are evidence against his surety, to prove his receipt. (v) So an entry made by a deceased collector of taxes, in his own private book, whereby he charged himself with the receipt of sums of money, was admitted against his surety, though the parties who paid them were alive and might have been called. (w) Entries made by a former steward of a manor, in his day-book or in a book signed by him, of receipts of sums of money for trespasses committed upon the place in question, have been holden good evidence to prove soil and freehold; for the steward charged himself. (x) So, the books of a deceased attorney, who had made an entry therein of having prepared certain writings, with his charge, and also an entry of payment, were admit

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ted to prove the fact of surrender of an interest in an [* 458] estate. (1) So, an attorney's entry, by himself, of charges

for making a lease, and an entry of payment, were admitted to prove that the real time of its execution was different from its actual date. (z) So a written memorandum by a deceased man-midwife, of a delivery, and an entry of payment therefor, was admitted in evidence upon an issue as to the child's age. (a)

What a man writes or says for himself can not be evidence of his right, nor of the right of his representative claiming in his place. Possibly length of time may vary it; otherwise it can not be more evidence for his representative than for himself. (b)

Titles of office, etc.] Upon a collateral issue, common reputation is sufficient proof that such a man was justice of the peace, baronet, or the like, without showing the commission or letters patent. (c) And as to justices of the peace, peace officers, constables, &c., it is suffi cient to prove that they acted in those characters, without producing their appointments. (d) So in an indictment for disobeying a justice's

(8) Rosc. Cr. Ev., 20, 21. 2 Greenl., 242.

(t) 21 How. St. Tr., 542.

(u) Matt. Dig., 126. 2 Gwill., 529. 4 Price, 218.

(v) 3 Brod. & Bing., 132,

(w) 10 Barn. & Cress., 317.

(x) 4 T. R., 514.

(y) 2 Str., 1129.

(2) 15 East, 33.
(a) 10 id., 109.

(b) 2 Barn. & Adol., 185.
(c) Tr. Per Pais, 347.

10 Wend., 254.

(d) 1 Leach, 581, 381, n. 4 T. R., 366.

order, it was held unnecessary to produce the commission of the peace to show that he was a justice. (e) And, in general, where a party assumes a particular character, proof of that fact will suffice as against him. (ƒ) (1)

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*CHAPTER VII.

CONFESSIONS.

CONFESSIONS are of two kinds. First, where the prisoner, being indicted either for a felony or a misdemeanor, confesses to the indictment at the trial; and these confessions are either express or implied.

An express confession is where a defendant pleads guilty, and thereby directly confesses the crime with which he is charged; and this is the highest conviction that can be. (a)

An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the mercy of the court, and desiring to submit to a small fine, which submission the court may accept, without putting him to a direct confession. (b) And in trifling personal injuries, the prosecu tor and defendant frequently settle the charge in private, and the latter comes into court and pleads guilty, and upon proving a general release from the former, submits to a small fine for his breach of the peace. (c)

Secondly, where the defendant, upon his examination before a justice of the peace on a charge of felony or misdemeanor, admits

(e) 1 Nol. P. L., 598.

(f) 3 T. R., 635.

(a) 2 Hawk., ch. 31, § 1. 1 Chit. Cr. L., 428.

(b) Id., ib., § 3.
(e) Dick. Sess., 156.

(1) Letters or declarations of third persons.]—On a trial for murder, the counsel for the defendant offered in evidence two letters, purporting to be written by one R. K., from Indiana, one to his brother, A. K., who resided at the place of the murder, and the other to the sheriff. In these letters he admitted that he committed the murder, and that the prisoner was innocent. Both of the K.'s were in court, at the time, but neither of them was called as a witness, by either party. Held that the court properly excluded the letters, as hearsay, or derivative testimony; and also on the ground that upon a trial for murder, declarations or admissions of persons other than the prisoner, that they had killed the deceased, are not evidence in favor of the defendant. (People v. Greenfield, 23 Hun, 454.)

either his guilt, or any fact which may tend to prove it at the trial, or admits such guilt or fact to any other person. (1)

Must be voluntary.] All confessions, whether at the trial or before, to be admissible, must be free and voluntary. (2) A free and volun

(1) On a trial for murder, statements made by the prisoner as a witness before the coroner, before he had been charged with the crime, and before it was ascertained that a murder had been committed, are evidence against him. (Hendrickson v. People, 10 N. Y., 9.) What a prisoner has testified to, as a witness against a third person, is evidence, if no inducements were held out, on the part of the prosecution. (People v. Burns, 2 Park., 34.)

While the prisoner was at the station-house, and after the watch of the deceased had been found upon him, he was asked by an officer where the rest of the jewelry was. He replied that he knew nothing about it. Subsequently, the question being repeated, he asked: "Will you do me a favor?" The officer said: "I will if I can; I sympathize with you, or I pity you; you are in a bad fix." The prisoner then asked him to send his clothes to his mother, and not let her know what had happened. The prisoner then, in answer to a question by another person, made a detailed statement of what he had done. Held that his confession was properly admitted on his trial for murder. (Cox v. People, 19 Hun, 430; aff'd 80 N. Y., 500.) It is not sufficient to exclude a confession, made by a prisoner, that he was under arrest, at the time, or that it was made to the officer in whose custody he was, or in answer to questions put by him; or that it was made under hope or promise of a benefit of a collateral nature. (S. C., 80 N. Y., 500.)

The magistrate before whom an examination is taken is a competent witness to testify to acts done by the prisoner, before him, but not to declarations forming part of such examination. (Rebetaille's Case, 5 C. H. Rec., 171.) Examinations of prisoners before a magistrate stand on the same footing, in courts of justice, as their declarations, reduced to writing, before any individual would. (Id.)

A declaration or admission, if made before the prisoner is conscious of being charged with, or suspected of, crime, is admissible in evidence, under all circumstances, however made or obtained; under oath or without; upon a judicial proceeding or otherwise. (Phillips v. People, 57 Barb., 353; aff'd 42 N. Y., 200.) Where the defendant, while under arrest for stealing a horse, was told by the complainant, and again, in substance, by the officer, that "the best he (the accused) could do was to own it up; that this would be better for him "; held, that a confession made under this inducement of advantage if he confessed, was not a voluntary confession. (Id.) Where confessions of the prisoner are given in evidence, on the trial of an indictment, in the absence of proof of such threats or inducements as would render the confession inadmissible, a refusal of the court to charge the jury that if they believed, from the evidence, that the prisoner was induced to make the confession under any inducements or hope of reward, held out to him, they should exclude the evidence, is not error. (Woodford v. People, 19 N. Y., 117.)

An uncorroborated confession, made out of court, without other proof of the corpus delicti, will not justify a conviction. (People v. Hennessay, 15 Wend., 147; People v. Badgley, 16 id., 53; State v. German, 15 Mo., 526.)

(2) Prisoner in illegal custody.]-A prisoner, indicted for murder, after the killing, fled from the city of New York, where it occurred, finally stopping at Wheeling, W. V., where he was arrested by an officer of the New York police force, with the cooperation and assistance of the local police force, but without any process, put in irons and taken to New York. While on the cars, he was asked by the officer if he killed his wife, and said "Yes." Held that, conceding that he was illegally held in custody, at the time he made the confession, that fact did not invalidate it, or render it inadmissible. (Balbo v. People, 19 Hun, 424; aff'd 80 N. Y., 484.)

Not alone sufficient.]-Confessions are competent evidence, in the case, but alone are not sufficient. No man can be convicted of a criminal offense upon his own confession, alone, that a crime has been committed. (People v. Ruloff, 3 Park., 401.) Confessions of a prisoner are a doubtful species of evidence, and should be received with great caution. (Id.) In proving the confessions of a prisoner, it is required that all the confessions be taken together, as well that which makes for the prisoner

tary confession of guilt made by a defendant, whether before a magistrate or otherwise, if duly made and satisfactorily proved, is

as that which makes against him; but it is not necessary to adopt the whole contession where other evidence in the case proves part of the confession to be untrue. (Id.)

A confession made under the influence of threats, or promises of favor, is not to be received; but the fact of finding goods in consequence of such confession and by the showing of the prisoner, is good evidence; that being a fact independent of such confession. (Tucker's Case, 5 C. H. Rec., 164.)

Confessions are excluded only where they are made under circumstances that tend to produce doubt as to their truth, arising from the operation of hope or fear in the mind of the prisoner. When made under the effect of threats, or the sanction of an oath, without the proper caution being given that he need not answer, and that what he says may be used against him, and some other circumstances, are excluded as matters of law. (O'Brien v. People, 48 Barb., 274.) But where the admissions are purely voluntary, they are to be submitted to the jury for what they may be deemed to be worth. (İd.)

The undoubted rule laid down by the most authoritative text-writers is, that a free and voluntary confession by a person accused of an offense, whether made before his apprehension or after, whether on a judicial examination or after commitment, whether reduced to 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. (People v. Bennett, 37 N. Y., 117.) 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 threat or promise may have been, a confession so obtained can not 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. (Id.)

Where the confessions of a prisoner are wholly voluntary, it is no objection to their admissibility as evidence against him that they were made to a policeman; especially when the prisoner was not, at the time, in his custody. (People v. Wentz, 37 N. Y., 303.) Voluntary confessions are admissible in evidence against the party making them. And those are deemed voluntary which proceed from the spontaneous expressions of the mind-free from the influence of any extraneous disturbing cause. (Id.) The confession may be admissible though made in reply to a question assuming the guilt of the prisoner. (Id.)

It is no objection to proving the confession of a defendant that it was made when he was under oath; if it appear that it was free and voluntary, and not made under the influence of fear or hope. (People v. Hendrickson, 1 Park., 406; S. C., 8 How. Pr., 404.)

A judgment will not be reversed because the court permitted the prosecution to prove the confession of the prisoner to the officer, while under arrest, as to the place where he had secreted money; it appearing that the money was found at the place designated by him. (Done v. People, 5 Park., 364.)

If a declaration or admission is made after the accused is conscious of being charged with, or suspected of, crime, the law at once becomes cautious and hesitating. The true inquiry then is, was it voluntary? For, unless it is entirely voluntary, it is held to be not admissible. (Phillips v. People, 57 Barb., 353; aff'd 42 N. Y., 200.) By voluntary is meant proceeding from the spontaneous suggestion of the party's own mind, free from the influence of any extraneous disturbing cause. (Id.)

Evidence of a confession, made by a party, in a criminal case, should not be excluded on the sole ground that it was made while under arrest. Such a confession, if voluntary, not made under the influence of fear or hope, or under the excitement or agitation of mind which would probably affect its verity, nor drawn out by the act or conduct of the person to whom it was made, should be received. (Hartung v. People, 4 Park., 319.)

The Code of Criminal Procedure contains this provision:

A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless

generally sufficient to warrant a conviction, without any corroborative evidence. (d) It has been decided in this state, however, that evidence of confessions alone, unsupported by corroborating facts and circumstances, is not sufficient to convict. There must be proof aliunde of the corpus delicti, although such proof need not be conclusive. (e) If it appear that the defendant was induced by promises of favor, by menaces, or undue terror, it can not be received in evidence against him. (f) Thus, evidence of a confession made to a magistrate previous to examination, on the declaration of the magistrate that it would be better for the accused to make a full

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confession, is not evidence. (g) So, if it appears that [* 460 ] before the confession was made the surgeon in attendance

had told the prisoner "it would be better for her to speak the truth." (h) So, if a confession be procured by a threat to take the defendant before a magistrate if he does not give a satisfactory account; (¿) or if it be said "tell me where the things are and I will be favorable to you; " (k) or, "I only want my money, and if you will give me that, you may go to the devil if you please; " upon which the defendant took part of the money from his pocket, and said it was all he had left of it. (7) In all these cases the confession is inadmissible, and so is a confession made with a view and under a hope of being thereby allowed to turn state's evidence. (m) (3) Where a married woman, being apprehended on a charge of felony, her husband, in the presence of the constable, held out an inducement to her to confess, upon which she made a statement, it was held that it was not receivable in evidence; inasmuch as an inducement held out in the presence of the constable was the same in effect as if it had been held out by him. (n) A constable telling a prisoner, "Any thing you can say in your defense we shall be ready to hear," renders a confes

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(d) Russ. & Ry. C. C., 508, 509, 440, 481. Dyer,

6 St. Tr., 58. 2 Leach, 554, 311, n.

(e) 16 Wend., 53; 15 id., 147.

(f) 2 Hale, 285.

(g) 15 Wend., 231. 2 East's P. C., 659.

(h) Queen v. Garner, 12 Jur., 944. 3 New Sess. Cas., 329.

(i) i Leach, 291.

(k) Id., 290, n.

(7) Russ. & Ry. C. C., 152.
(m) 2 Leach, 559. 2 Stark. Ev., 23.
(n) 2 Car. & K., 225.

made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed. (§ 395.)

(3) A prosecuting officer can not be admitted to testify against a prisoner, upon the trial, as to what the latter has disclosed to him upon an application to be admitted as a witness for the state. (State v. Phelps, Kirby, 282.)

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