or debts; "and every such answer may afterwards be given in evidence against him, in the event of his being prosecuted for any offence against the bankrupt law.*

§ 823. Although the statutes which prescribe the duty of coroners contain no provision for taking the examination of the accused, but simply enact, that every coroner shall put in writing the evidence given to the jury before him, or as much thereof as shall be material, and shall certify and subscribe the same and deliver it to the officer of the court in which the trial is to be,'it seems on several occasions to have been assumed, that the coroner has the same authority to take the examination of a prisoner as a magistrate.'

§ 824.' Where, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement as to his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found; but it would not be competent to inquire whether he confessed that he had concealed it there." Lord Eldon has

1

12 & 13 Vict., c. 106, §§ 117, 260; 20 & 21 Vict., c. 60, §§ 306, 385, Ir. This last Act applies also to insolvents.

2 R. v. Scott, 25 L. J., M. C., 128; 7 Cox, Cr. Cas. 164; & 1 Dear. & Bell, 47, S. C.; R. v. Cross, 1 Dear. & Bell, 68; 7 Cox, Cr. Cas. 226, S. C.

37 Geo. 4, c. 64, §§ 4 & 6; 9 Geo. 4, c. 54, §§ 4 & 6, Ir. It may be doubted whether § 4 of 7 Geo. 4, c. 64, be not now repealed by § 34 of 11 & 12 Vict., c. 42; but if this be so, the duties of coroners are defined by 1 & 2 Ph. & Mar. c. 13, § 5.

4 * R. v. Reid, M. & M. 403, cor. Tindal, C. J.; R. v. Roche, C. & Marsh. 341, cor. Lord Denman ; Brogan's case, 2 Russ. C. & M. 874, cor. Lord Lyndhurst. Gr. Ev., § 231, in great part.

6

* 1 Ph. Ev. 411; R. v. Warickshall, 1 Lea. C. C. 263; R. v. Mosey, id. 265, n., per Buller, J., and Perryn, B.; R. v. Lockhart, id. 386; R. v.

laid down the rule somewhat more strictly, saying, in Harvey's case,' that, where the knowledge of any fact was obtained from a prisoner, under such a promise as excluded the confession from being given in evidence, he should direct an acquittal, unless the fact proved would itself have been sufficient to warrant a conviction, without any confession leading to it. But the sounder doctrine seems to be, that so much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement cannot have been false."

§ 825.3 If the prisoner himself delivers up the goods stolen, the fact that this was done upon inducements to confess held out by persons in authority, will afford no ground for rejecting his declarations, contemporaneous with the act of delivery, and explanatory of its object, though they may amount to a confession of guilt. But whatever he may have said at the same time, not qualifying or explaining the act of delivery, must be rejected. And if, notwithstanding the prisoner's confession, thus improperly induced, and any acts done by him in furtherance of the discovery, the search for the property or person in question is ineffectual, no proof of either the confession or the acts can be received. The confession is excluded, because, being made under the influence of a promise it cannot be relied upon; and the acts done under the same influence, not being confirmed by the finding of the property or person, are open to the same objection. The influence which may produce a groundless confession, may also produce groundless conduct."

§ 826. A prisoner is not liable to be affected by the confessions of his accomplices; and so strictly has this rule been enforced,

1

Gould, 9 C. & P. 364, per Tindal, C. J., and Parke, B.; R. v. Thurtell, cited Joy on Confess. 84; R. v. Cain, 1 Cr. & Dix, C. C. 37, per Torrens, J.; Com. v. Knapp, 9 Pick. 496, 511. 2 East, P. C. 658. and see the cases cited ante, p. 3 Gr. Ev., § 232, in part.

2 R. v. Butcher, 1 Lea. C. C. 265, n.;

745, note 6.

R. v. Griffin, R. & Ry. 151; R. v. Jones, id. 152.

3 R. v. Jenkins, R. & Ry. 492.

6 So is the Roman law. "Confessio unius non probat in præjudicium

that where a person was indicted for receiving stolen goods, a confession by the principal that he was guilty of the theft, was held by all the judges to be no evidence of that fact as against the receiver;' and the decision it seems, would be the same, if both parties were indicted together, and the principal were to plead guilty.

§ 827. The same doctrine prevails in cases of agency. In general, no person is answerable criminally for the acts of his servants or agents, whether he be the prosecutor or the accused, unless a criminal design be brought home to him. The act of the agent or servant may be shown in evidence, as proof that such an act was done; for a fact must be established by the same evidence, whether it be followed by a criminal or civil consequence; but it is a totally different question, in the consideration of criminal as distinguished from civil justice, how the principal may be affected by the fact, when so established. For though the act of the agent may involve his principal civilly, it cannot convict him of a crime, unless further proof be given that the principal has directed, or, at least, assented to such act. Where it was proposed to show that an agent of the prosecutor, not called as a witness, had offered a bribe to a witness, who also was not called, the evidence was held inadmissible; though the general doctrine, as above stated, was recognised. The rule thus generally laid down is open to an apparent exception in the case of the proprietor of a newspaper, who is, primâ facie, criminally responsible for any libel it contains, though inserted by his agent or servant without his knowledge. But Lord Tenterden considered this case as

alterius, quia aliàs esset in manu confitentis dicere quod vellet, et sic jus alteri quæsitum auferre, quando omninò jura prohibent; etiamsi talis confitens esset omni exceptione major. Sed limitabis, quando inter partes convenit parere confessioni et dicto unius alterius." Mascard. De Prob., Concl. 486, vol. 1, p. 409. See ante, §§ 530, 531.

1 R. v. Turner, 1 Moo. C. C. 347.

2 Id. 348, citing an anonymous decision of Wood, B.

3 Gr. Ev., § 234, in great part.

Lord Melville's case, 29 How. St. Tr. 764; the Queen's case, 2 B. & B. 306, 307; ante, § 654.

The Queen's case, 2 B. & B. 302, 306-309.

66

falling strictly within the principle of the rule; for "surely," said he, a person who derives profit from, and furnishes means for carrying on, the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, though you cannot show that he was individually concerned in the particular publication." Yet even here the defendant may prove, if he can, that the publication was made by his servant without his authority, consent, or knowledge, and that it did not arise from want of due care or caution on his part.

3

§ 828. It remains only to be observed, that confessions, like admissions, may be inferred from the conduct of the prisoner, and from his silent acquiescence in the statements of others, made in his presence, respecting himself; provided they were not made either before a magistrate, when the prisoner, from a sense of decorum, might have felt himself restrained from interposing, or under any other circumstances, which would naturally have prevented him from replying. In the case of R. v. Newman,' it was sought to push this doctrine to an unwarrantable length. That was an information for libel, to which truth was pleaded as a justification under the Act of 6 & 7 Vict., c. 96, and the defendant tendered evidence to prove that the very imputations contained in the libel in question, had been previously published in another work, and that the prosecutor, though well aware of that fact, had taken no steps to obtain redress. The Court, however, very properly rejected the evidence, as being far too vague and uncertain to be received in a court of justice as any proof of acquiescence.

1 R. v. Gutch, M. & M. 433, 437. See further as to the acts of agents, ante, § 93. 6 & 7 Vict., c. 96, § 7.

2

3 R. v. Bartlett, 7 C. & P. 832, per Bolland, B.; R. v. Smithies, 5 C. &

P. 332, per Gaselee and Parke, Js. ; ante, §§ 732-740.

4 R. v. Appleby, 3 Stark. R. 33, per Holroyd, J.; Melen v. Andrews, M. & M. 336, per Parke, B.; Joy on Confess. 77-80; ante, § 738. 522 L. J., Q. B., 156; 1 E. & B. 268; 3 C. & Kir. 252, S. C.

CHAPTER XVI.

EVIDENCE EXCLUDED ON GROUNDS OF PUBLIC POLICY.

§ 829. THE law excludes or dispenses with some kinds of evidence, on grounds of public policy; because it is thought that greater mischiefs would probably result from requiring or permitting their admission, than from wholly rejecting them. This rule of law has respect, in some cases, to the person testifying, and will hereafter be discussed in the chapter relating to the Competency of Witnesses. In other cases the rule applies to the matter concerning which the witness is interrogated; and it is to this branch of the rule that our attention will at present be directed.

2

§ 830. The first class of subjects which the law protects from disclosure, includes all communications between husband and wife. "No husband," says the Legislature, "shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage.' This wise enactment rests on the obvious ground, that the admission of such testimony would have a powerful tendency to disturb the peace of families, to promote domestic broils, and to weaken if not to destroy, that feeling of mutual confidence, which is the most endearing solace of married life. The protection is not confined to cases where the communication sought to be given in evidence is of a strictly confidential character, but the seal of the law is placed upon all communications of whatever nature which pass between husband and wife. It extends also to cases in which the interests of strangers are solely involved, as well as to those in which the husband or wife is a party on the record. It