competent to prove something said by the defendant beyond what is taken down before the magistrate. (d) A prisoner's confession, if not reduced to writing, may be given in evidence against him, and a fortiori, if reduced into writing, though not signed by him.(e) Confessions to other persons than magistrates, if in writing, must be proved in the same manner as any other written instrument. If by parol, they are to be proved by parol evidence of some person who heard them.. In all cases, the whole of the confession should be given in evidence; for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving, at the same time, his contemporaneous assertion of a fact favorable to him, not merely as evidence that he made such assertion, but admissible evidence of the matter thus alleged by him in his discharge. (ƒ) A man's confession is only evidence against himself, and not against his accomplices; (g) although made in the hearing of the accomplice, who did not deny it.(h) Confessions made to certain classes of people cannot be given in evidence against the defendant, on the ground that they are privileged communications. Such are statements made to counsel, solicitors and attornies, interpreters, agents, clerks, (i) clergymen and physicians. (k) The privilege of not being examined on such subjects is the privilege of the client and not of the attorney or counsel, and it never ceases.(1) If the client waives the privilege, however, the witness may be examined.(m) But the privilege is confined to communications made to the attorney, clergyman, physician, &c. in his professional character;(n) and if admissions are made to a clergyman, they must be made in the course of discipline enjoined by his church, or they may be given in evidence.(0) Effect of confession.] When the defendant in open court confesses that he is guilty of the offence with which he is charged in the indictment, a trial is unnecessary, and the court may immediately proceed to award judgment.(p) The courts are usually, however, very backward (d) 1 Moo. C. C. 231. (e) 2 Leach, 582. (f) 4 Taunt. 245. 2 Brod. & Bing. 294. 4 Car. & P. 221. (g) 1 Hale, 585. 2 Hawk. ch. 46, s. 3. 2 Russ. on Cr. 652. (h) 3 Stark. Rep. 33. (i) 2 Russ. on Čr. 209, &c. (k) 2 R. S. 406, §§ 72, 73. (1) 10 Mod. 40. Bull. N. P. 284. (m) Ry. & Moo. N. P. C. 390. (n) 2 Russ. on Cr. 614. 13 Wend. 312, 2 R. S. 406, § 73. (0) 13 Wend. 312. (p) Arch. Cr. Pl. 121. in receiving and recording such a confession, and will generally advise the defendant to retract it and plead to the indictment.(g) A free and voluntary confession of guilt made by a defendant, whether under examination before magistrates or otherwise, if duly made and satisfactorily proved, is sufficient at once to warrant a conviction, without any corroborative evidence aliunde.(r) But this must be understood of a direct and positive confession; for admissions by implication are not entitled to the same weight. (s) The confession of an infant is competent, but the jury should be particularly careful in weighing it. (t) A boy of twelve years and five months old may be convicted on his own confession, and executed. Capacity to commit a crime, necessarily supposes capacity to confess it. (u) Confessions, however, ought always to be received with caution. (v) And Sir William Blackstone observes that hasty, unguarded confessions, made to persons having no authority, even in cases of felony at the common law, are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence. (w) These remarks of the learned judge are no less sound than humane, and we commend them to the attentive consideration of magistrates and judges in all cases; but more especially in cases where infants are brought before them for examination or trial. q) 2 Hale, 225. Arch. Cr. Pl. 121. 5 Halst. 163. Roscoe's Cr. Ev. 28. Russ. & Ry. C. C. 508, 9, 440, 481, 204. 6 St. Tr. 58. 2 Leach, 554. But see ante, 419. (s) Id. ib. (t) 2 Aikin's Rep. 209. (u) 5 Halst. 163. 1 South. 246. 5 City Hall Rec. 177. (v) 6 Wend. 268. 1 id. 625. BOOK VIII. Of the office of Justice of the Peace; and of the Jurisdiction, Duty, and Authority of Justices of the Peace, in Criminal Cases. I. Of the office of justice of the peace. II. Jurisdiction. III. Their duty and authority. CHAPTER I. Of the office of Justice of the Peace. 1st. ITS NATURE.] Justices of the peace were originally mere conservators of the peace, and had no civil jurisdiction. In this state a two fold authority is incident to the office: viz. a power to try civil causes where the sum in controversy does not exceed one hundred dollars, and in addition to their common law authority as conservators of the peace, a criminal jurisdiction in the cases prescribed by statute. Before the institution of justices of the peace, officers were appointed for preserving and maintaining the public peace who were called conservators, wardens, or keepers of the peace, till the statute of 34 Ed. 3, ch. 1 (which gave them the power of trying felonies,) when they acquired the more honorable appellation of justices. The office of justice of the peace is one of great antiquity. It has had an existence in England for a period of nearly five hundred years, and in this state, under different titles, and with a jurisdiction more or less extensive for more than a century and a half.(a) 2d. Of the qualifications for the office.] As the office is one of great antiquity, so it is one of great importance; and should be filled only by those who are well informed, honest, and fearless. In the language of Dalton, an ancient writer, justices should have "stout and upright hearts, and clean and uncorrupted hands," not fearing to offend, nor lending themselves, or their office, to evil minded persons, but holding the balance even between the parties and the public. Besides their civil jurisdiction, (of which it is not our purpose here to speak,) the powers conferred upon justices of the peace under the acts respecting proceedings to prevent the commission of crimes, the arrest and examination of offenders of every grade, and as members of courts of special sessions, and, in some cases, of the general sessions, are of a nature too serious to be confided to the ignorant, or the dishonest. The ancient English statutes required that justices of the peace should "be of the best reputation, and most worthy men in the county." "And because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible," another statute required that no justice should be put in the commission unless he had lands to the value of £20 per annum. (b) The only qualification for the office which the statute requires, in this state, besides taking the oath of office, is that the justice must reside in the county, and be an elector of the town, for which he is chosen. (c) 3d. Justices how chosen, or appointed.] There are at least four justices of the peace in each town, who are divided into four classes, one of whom is to be elected by ballot annually, at the town meeting, in the manner prescribed by statute.(d) In the cities the number varies.(e) The clerk of every town meeting at which an election for justice of the peace shall have been had, shall, within ten days thereafter, transmit to the clerk of his county a certificate of the result of such election, under his hand, which shall be evidence of the facts therein certified. (ƒ) Justices may also in some cases, be appointed in a different manner. Thus, it is provided, by statute, that in case of a vacancy in the office of justice, by resignation, death, or by the neglect of the town to elect one at its annual town meeting, any three justices of the town may appoint a (a) Davis' Just. 1. Cowen's Tr. Pref. 1. 4 Black. Com. 352. |