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COURTS OF QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUER,

AND THE

COURT FOR CROWN CASES RESERVED,

FROM

MICHAELMAS TERM, 1867, TO TRINITY TERM, 1868,

BOTH INCLUSIVE.

REPORTED

In the Court of Queen's Bench,
By ROBERT SAWYER, Esq. AND ARTHUR PAUL STONE, Esq.

BARRISTERS-AT-LAW.

In the Court of Common Pleas,
By WILLIAM PATERSON, Esq. AND GILMORE EVANS, Esq.

BARRISTERS-AT-Law.

In the Court of Erchequer,
By HUGH COWIE, Esq. AND LUMLEY SMITH, Esq. BARRISTERS-AT-Law,

In the Court for Crown Cases Reserved,
By THOMAS SIRRELL PRITCHARD, Esq., BARRISTER-AT-LAW.

FORMING PART III. OF

VOL. XLVI.
NEW SERIES, VOL. XXXVII.

LONDON:
Printed by James Holmes, 4, Took's Court, Chancery Lane.
PUBLISHED BY EDWARD BRET INCE, 5, QUALITY COURT, CHANCERY LANE.

MDCCCLXVIII.

REPORTS OF CASES

CHIEFLY CONNECTED WITH

THE DUTIES AND OFFICE OF MAGISTRATES

AND THE ADMINISTRATION OF THE CRIMINAL LAW.

VOL. XXXVII. (NEW SERIES), COMMENCING WITH

MICHAELMAS TERM, 31 VICTORIÆ.

}

on

[CROWN CASE RESERVED.] and following days, Frank Jarvis, Richard 1867.

Bulkley and Wilford Bulkley were tried Nov. 16. THE QUEEN V. JARVIS.

before me an indictment for feloEridence-Confession, Admissibility of other property of William Leaf and others,

niously stealing 138 yards of silk and

Inducement or Threat.

the masters of Jarvis. There was a second One of a firm who employed the prisoner, count in the indictment for feloniously reharing called him up into the private ceiving the same goods. William Laidler counting-house of the firm, in the presence Leaf was examined, and said, “The priof another of the firm and two officers soner Jarvis was in my employ. On the of police, said, I think it is right that 13th of May we called him up when I should tell you that, besides being in the officers were there into our private the presence of my brother and myself, counting-house. I said to him, "Jarvis, I you are in the presence of two officers of think it is right that I should tell you that, the police; and I should advise you that to

besides being in the presence of my brother any question that may be put to you you will and myself, you are in the presence of two auguer truthfully, so that if you have com- officers of the police; and I should advise mitted a fault you may not add to it by you that to any question that may be put stating what is untrue ;and having shewn to you you will answer truthfully, so that a letter to him, which he denied to have

if
you

have committed a fault you may not written, added, Take care; we know more add to it by stating what is untrue. I than you think we know." The prisoner produced a letter to him, which he said he thereupon made a confession :-Held, that had not written, and I then said, Take those words did not import an inducement care, Jarvis; we know more than

you

think or threat ; and that evidence of the confession we know. I do not believe I said to him, wus admissible.

"You had better tell the truth.'" Counsel

for the prisoner Jarvis objected to any The following CASE was reserved by the statement of his made after the above was Recorder of London :

said being received in evidence, and reAt a session of the Central Criminal ferred to The Queen v. Williams (1), The Court, held on the 8th of July, 1867, Queen v. Warringham (2), The Queen v.

Coram Kelly, C.B., Willes, J., Bramwell, B., Byles, J. and Lush, J.

NEW SERIES, 37.-Mag. Cas.

(1) 2 Den. C.C. 433.
(2) Ibid. C.C. 447.

B

SO.

Garner (3), The Queen v. Sheperd (4) and he is then advised to do in effect what he The Queen v. Muller (5). Counsel for the had better do, viz., to answer truthfully, prosecution referred to The Queen v. Baldry which is really another form of saying he (6), The Queen v. Sleeman (7) and The had better tell the truth, which latter exQueen v. Parker (8). I decided that the pression would make the confession inadstatement was admissible.

missible upon the authority of The Queen The jury found Jarvis guilty, adding, that v. Garner (3). Then there is the incident they so found upon his own confession, but of the letter and its denial, followed by the they thought that confession prompted by words “ Take care." If these circumstances the inquiries put to him. They acquitted had any influence, either of hope or fear, on the other two. At the request of counsel the prisoner's mind at the time, the law for Jarvis, I reserved for the Court for the cannot measure the extent of that influence. Consideration of Crown Cases Reserved the In The Queen v. Baldry (6) a simple cauquestion, whether I ought to have admitted tion was used, which could not be construed the statements of the prisoner in evidence reasonably by the prisoner into an induceagainst him. If I ought not to have done ment or threat; but Pollock, C.B. in that so, the conviction should be reversed. The case says, p. 442, " But where the admoprisoner is in custody awaiting judgment. nition to speak the truth has been coupled

Coleridge (Straight with him), for the with any expression importing that it would prisoner. The confession of the prisoner be better for him to do so, it has been held was wrongly admitted in evidence against that the confession was not receivable," him. Any confession to be admissible must and cites The Queen v. Garner (3). Again, be made freely and voluntarily. And, fur- if the words were ambiguous, and such as ther, the prosecution must take upon itself might have been considered by the prisoner the onus of shewing that it was free and as an inducement or threat, the evidence voluntary, and cannot throw the burden ought not to have been given--The Queen on the prisoner to shew that it was not v. Williams (9), The Queen v. Shepherd (4).

The test is, was there any induce- It is for the prosecution to satisfy the ment or threat of a temporal nature as Court that the confession was free and distinguished from that of a religious or voluntary; and if the Recorder has left it spiritual kind? It is the effect produced in doubt on the case whether that were so on the mind of the recipient that is to done, it is submitted that the conviction be regarded, and not the intention of should be quashed-The Queen v. Warthe person holding it out. If the words ringham (2). In The Queen v. Parker (8) therefore are fairly capable of conveying the facts were so different that that case has to the mind of the hearer the idea of an no bearing. Then, here the jury have found inducement or threat, the confession in- that the confession was prompted by the duced by them is inadmissible; and it is sub- inquiries made. mitted such was the effect of the words here. Giffard (Grain with him), in support of In The Queen v. Baldry (6) the authorities are the conviction, were not called upon. exhausted. We must look at the surrounding circumstances under which the confes- KELLY, C.B.—I have always felt that sion is made. In this case the prisoner is we ought to approach with caution the rule a servant-lad; the prosecutor is his em- of law that no man is bound to criminate ployer, a man of position. The place is his himself, so I watch with care any infringemaster's private counting-house. He is ques- ment of that rule of law; but we must, tioned in the presence of more than one of on the other hand, for the sake of public his masters; he is ostentatiously informed justice, take care that our consideration that two police officers are also present; for prisoners should not interfere with the

rules of evidence and decisions. The ques(3) 1 Den. C.C. 329.

tion is, do the words before us in substance (4) 7 Car. & P. 579.

and fairly considered import a threat of evil, (5) 3 Cox, 507.

or hold out a hope of benefit to the accused (6) 2 Den. C.C. 430. (7) Dears. 249.

(9) MSS. 3 Russ. on Crimes, 4th edit. by (8) 1 Leigh & C. 42.

Greaves, p. 377, note.

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in case he should state the truth? I think [CROWN CASE RESERVED.] that the first words used, viz., “I think it 1867.

THE QUEEN V. ELWORTHY. * rather as a warning than a threat or pro

Perjury,Secondary Evidence of Written mise, and were rather calculated to put

Document without Notice to Produce-Inthe prisoner on his guard. Then the prose

dictment not Notice. cutor adds, “ You are in the presence of two officers of the police," &c., and "I should Upon an indictment for perjury in falsely advise you that to any question that may swearing on a former trial that there be put to you you will answer truthfully,” was no draft of a statutory declaration, the &c. In the first place, this appears to me materiality of the existence of such draft to be advice given by a master to a servant, turned upon its contents and the fact of cerand when he adds, “So that if you have tain alterations having been made in it. Parol committed a fault you may not add to it evidence was admitted, not only of the fact by stating what is untrue,” he appears to of the existence of the draft, but of its contents me to be giving further advice on moral and of alterations made in it which were not grounds. It is neither a threat that evil in the declaration itself, without any notice shall befall him, nor is it an inducement or to produce the draft having been given to the holding out of advantage. These words, prisoner :-Held, that such parol evidence without straining them, amount only to of the draft and its contents was inadmissible, this: we put certain questions to you, and and that the nature of the indictment was I advise you to answer truly that you may not such as of itself to operate as a notice not add a fault to an offence committed, to produce, and the conviction upon such if any has been. Then the last words indictment was quashed. appear to me to be only a caution beyond the words already used. He refers back to The following CASE was reserved by reasons already given. Astothe words “You Willes, J.haid better," referred to in the argument, Elworthy was tried for perjury before there are many cases in which those me at the Old Bailey. The perjury was words have occurred, and they seem to have alleged to have been committed at the acquired a sort of technical meaning, that trial of Thomas Caunon, for making a false they hold out an inducement or threat statutory declaration. The assigument of within the rule that excludes confessions perjury relied upon at the trial was in a under such circumstances. It is sufficient statement made by Elworthy that there was to say, that those words have not been used no draft of that statutory declaration. It on this occasion; and that the words used appeared that Elworthy was one of a firm appear to me to import advice given on of attorneys who were employed to lend moral grounds, and not to infringe upon money for a client. They were applied to the rule of law prohibiting a threat or by Cannon for a loan, which they agreed, inducement in these cases.

on behalf of their client, to make, upon WILLES, J.-I agree ; but if it had the security of some property belonging appeared that the prisoner could have sup- to Mrs. Cannon, and also of a newspaper posed the words meant "you had better,"

in which Mr. Cannon was interested. ElI think the case would have been different. worthy's firm required of Cannon as a The other JUDGES concurred.

condition of the loan a statutory declaration, Conviction affirmed. which he made, and which stated amongst

other things that he was the registered Attorneys Humphreys & Morgan, for the prose. proprietor of the newspaper unincumbered. cation; Wontner & Son, for the prisoner.

This declaration he made and signed, and it being untrue he was indicted for making a false declaration.

Upon the trial of that indictment, Elworthy was called as a witness against Cannon,

his cross-examina* Coram Kelly, C.B., Willes, J., Bramwell, B., Byles, J. and Lush, J.

1

and upon

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