Evidence-Confession, Admissibility ofInducement or Threat.

One of a firm who employed the prisoner, having called him up into the private counting-house of the firm, in the presence of another of the firm and two officers of police, said, "I think it is right that I should tell you that, besides being in the presence of my brother and myself, you are in the presence of two officers of the police; and I should advise you that to any question that may be put to you you will answer truthfully, so that if you have committed a fault you may not add to it by stating what is untrue;" and having shewn a letter to him, which he denied to have written, added, "Take care; we know more than you think we know." The prisoner thereupon made a confession:-Held, that these words did not import an inducement or threat; and that evidence of the confession was admissible.

The following CASE was reserved by the Recorder of London :

At a session of the Central Criminal Court, held on the 8th of July, 1867,

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

NEW SERIES, 37.—MAG. CAS.

and following days, Frank Jarvis, Richard Bulkley and Wilford Bulkley were tried before me on an indictment for feloniously stealing 138 yards of silk and other property of William Leaf and others, the masters of Jarvis. There was a second count in the indictment for feloniously receiving the same goods. William Laidler Leaf was examined, and said, "The prisoner Jarvis was in my employ. On the 13th of May we called him up when the officers were there into our private counting-house. I said to him, 'Jarvis, I think it is right that I should tell you that, besides being in the presence of my brother and myself, you are in the presence of two officers of the police; and I should advise you that to any question that may be put to you you will answer truthfully, so that if you have committed a fault you may not add to it by stating what is untrue.' I produced a letter to him, which he said he had not written, and I then said, Take care, Jarvis; we know more than you think we know.' I do not believe I said to him, 'You had better tell the truth.' Counsel for the prisoner Jarvis objected to any statement of his made after the above was said being received in evidence, and referred to The Queen v. Williams (1), The Queen v. Warringham (2), The Queen v.

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

B

6

(6), The Queen v. Sleeman (7) and The Queen v. Parker (8). I decided that the statement was admissible.

The jury found Jarvis guilty, adding, that they so found upon his own confession, but they thought that confession prompted by the inquiries put to him. They acquitted the other two. At the request of counsel for Jarvis, I reserved for the Court for the Consideration of Crown Cases Reserved the question, whether I ought to have admitted the statements of the prisoner in evidence against him. If I ought not to have done so, the conviction should be reversed. The prisoner is in custody awaiting judgment.

Coleridge (Straight with him), for the prisoner. The confession of the prisoner was wrongly admitted in evidence against him. Any confession to be admissible must be made freely and voluntarily. And, further, the prosecution must take upon itself the onus of shewing that it was free and voluntary, and cannot throw the burden on the prisoner to shew that it was not so. The test is, was there any inducement or threat of a temporal nature as distinguished from that of a religious or spiritual kind? It is the effect produced on the mind of the recipient that is to be regarded, and not the intention of the person holding it out. If the words therefore are fairly capable of conveying to the mind of the hearer the idea of an inducement or threat, the confession induced by them is inadmissible; and it is submitted such was the effect of the words here. In The Queen v. Baldry (6) the authorities are exhausted. We must look at the surrounding circumstances under which the confession is made. In this case the prisoner is a servant-lad; the prosecutor is his employer, a man of position. The place is his master's private counting-house. He is questioned in the presence of more than one of his masters; he is ostentatiously informed that two police officers are also present;

(3) 1 Den. C.C. 329. (4) 7 Car. & P. 579. (5) 3 Cox, 507.

(6) 2 Den. C.C. 430. (7) Dears. 249. (8) 1 Leigh & C. 42.

he is then advised to do in effect what he had better do, viz., to answer truthfully, which is really another form of saying he had better tell the truth, which latter expression would make the confession inadmissible upon the authority of The Queen v. Garner (3). Then there is the incident of the letter and its denial, followed by the words "Take care." If these circumstances had any influence, either of hope or fear, on the prisoner's mind at the time, the law cannot measure the extent of that influence. In The Queen v. Baldry (6) a simple caution was used, which could not be construed reasonably by the prisoner into an inducement or threat; but Pollock, C.B. in that case says, p. 442, "But where the admonition to speak the truth has been coupled with any expression importing that it would be better for him to do so, it has been held that the confession was not receivable,” and cites The Queen v. Garner (3). Again, if the words were ambiguous, and such as might have been considered by the prisoner as an inducement or threat, the evidence ought not to have been given--The Queen v. Williams (9), The Queen v. Shepherd (4). It is for the prosecution to satisfy the Court that the confession was free and voluntary; and if the Recorder has left it in doubt on the case whether that were so done, it is submitted that the conviction should be quashed-The Queen v. Warringham (2). In The Queen v. Parker (8) the facts were so different that that case has no bearing. Then, here the jury have found that the confession was prompted by the inquiries made.

Giffard (Grain with him), in support of the conviction, were not called upon.

KELLY, C.B.-I have always felt that we ought to approach with caution the rule of law that no man is bound to criminate himself, so I watch with care any infringement of that rule of law; but we must, on the other hand, for the sake of public justice, take care that our consideration for prisoners should not interfere with the rules of evidence and decisions. The question is, do the words before us in substance and fairly considered import a threat of evil, or hold out a hope of benefit to the accused

(9) MSS. 3 Russ. on Crimes, 4th edit. by Greaves, p. 377, note.

in case he should state the truth? I think that the first words used, viz., “I think it is right that I should tell you," &c. operate rather as a warning than a threat or promise, and were rather calculated to put the prisoner on his guard. Then the prosecutor adds, "You are in the presence of two officers of the police," &c., and “I should advise you that to any question that may be put to you you will answer truthfully," &c. In the first place, this appears to me to be advice given by a master to a servant, and when he adds, "So that if you have committed a fault you may not add to it by stating what is untrue," he appears to me to be giving further advice on moral grounds. It is neither a threat that evil shall befall him, nor is it an inducement or holding out of advantage. These words, without straining them, amount only to this: we put certain questions to you, and I advise you to answer truly that you may not add a fault to an offence committed, if any has been. Then the last words appear to me to be only a caution beyond the words already used. He refers back to reasons already given. As to the words "You had better," referred to in the argument, there are many cases in which those words have occurred, and they seem to have acquired a sort of technical meaning, that they hold out an inducement or threat within the rule that excludes confessions under such circumstances. It is sufficient to say, that those words have not been used on this occasion; and that the words used appear to me to import advice given on moral grounds, and not to infringe upon the rule of law prohibiting a threat or inducement in these cases.

WILLES, J.-I agree; but if it had appeared that the prisoner could have supposed the words meant "you had better," I think the case would have been different. The other JUDGES concurred.

Conviction affirmed.

Attorneys Humphreys & Morgan, for the prose. cation; Wontner & Son, for the prisoner.

1

Perjury-Secondary Evidence of Written Document without Notice to Produce-Indictment not Notice.

Upon an indictment for perjury in falsely swearing on a former trial that there was no draft of a statutory declaration, the materiality of the existence of such draft turned upon its contents and the fact of certain alterations having been made in it. Parol evidence was admitted, not only of the fact of the existence of the draft, but of its contents and of alterations made in it which were not in the declaration itself, without any notice to produce the draft having been given to the prisoner -Held, that such parol evidence of the draft and its contents was inadmissible, and that the nature of the indictment was not such as of itself to operate as a notice to produce, and the conviction upon such indictment was quashed.

The following CASE was Willes, J.

reserved by

Elworthy was tried for perjury before me at the Old Bailey. The perjury was alleged to have been committed at the trial of Thomas Cannon, for making a false statutory declaration. The assignment of perjury relied upon at the trial was in a statement made by Elworthy that there was no draft of that statutory declaration. It appeared that Elworthy was one of a firm of attorneys who were employed to lend. money for a client. They were applied to by Cannon for a loan, which they agreed, on behalf of their client, to make, upon the security of some property belonging to Mrs. Cannon, and also of a newspaper in which Mr. Cannon was interested. Elworthy's firm required of Cannon as a condition of the loan a statutory declaration, which he made, and which stated amongst other things that he was the registered proprietor of the newspaper unincumbered. 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, and upon his cross-examina

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