such portions, and asked her if they were correct, to which she said yes, and signed the paper, which ended thus: The statement I previously made and have now heard read over to me is true.' Held admissible: Phips. p. 304: per Darling J., Whitmarsh, 62 J. P. 680, 1898: per Bigham J. ib. 711 (second trial). The earlier statement, viz., answers by deceased to questions put to and signed by her on June 29, five days after arrival at a hospital, where she died on July 10, was doubtfully rejected by Darling J. and decisively by Bigham J., who, however, allowed it to be read when defending counsel, unable to keep out the later one, asked for it.

The question is, what was the belief of the declarant at the time of declaration, and it is immaterial that declarant afterwards took a more hopeful view of his condition. Hubbard, 14 Cox C. C. 565, 1881; A. A. Austin, 8 Cr. A. R. 27, 1912. But cf. Megson.

Interval between declaration and death] It is clear that, if the impression exists in the mind of the declarant that dissolution is shortly impending, it will not make any difference that death does not in fact take place until some time afterwards. Reaney, above. Nor does there appear to be any case in which the evidence has been rejected on this ground. In most of the reported cases, however, the statements have been made within a few days of death actually taking place, and in most cases within a few hours. In Bernadotti, however, declarant did not die for nearly three weeks; in Craven, 1 Lew. 77, 1826, 'several weeks.'

Reduced into writing] A statement giving the substance of questions and answers is not admissible: the actual words of deceased must be given and so must the questions put, if any; for answers, even if taken word for word, seem to me to be useless without the questions

. . and when a person is in such a condition the danger arising from leading questions is enormously increased': per Cave J., Mitchell, 17 Cox C. C. 503, 1892, dissenting from Mann, 49 J. P. 743, 1885, where, on a trial for grievous bodily harm, Denman J. admitted a statement, not a dying declaration nor a deposition, but intended as the former, as one made in defendant's presence.

Presence of accused] When a dying declaration is taken formally by a magistrate in writing, it is of no value as a Deposition (which see), unless made in the presence of defendant and accompanied by the proper formalities for taking depositions, including full opportunity for cross-examination; nor if these formalities have not been complied with, e.g., if, owing to the sufferer's state, the cross-examination cannot be finished, is it admissible as a statement made in his presence-unless the cross-examination was vexatious and frivolous, with the object of wasting time-since he would not be likely to deny at once the statements made, but would wait his opportunity for crossexamination. Mitchell, and see p. 57; see also per Hawkins J., Smith, 18 Cox C. C. 470; 61 J. P. 120, 1897. It has been held that, if a' dying declaration has been reduced into writing, and signed by deceased, no secondary evidence can be given of its contents: per Coleridge J., Gay, 7 C. & P. 230, 1835, following Reason, Str. at 500, But mere notes of the declaration taken down by a person present would not be even admissible: p. 4.

Inherent defects] Such evidence is liable to be very incomplete, if only from the physical condition of the sufferer. He may naturally, also, be disposed to give a partial account of the occurrence, although possibly not influenced by animosity or ill-will. But it cannot be concealed. that animosity and resentment are not unlikely to be felt in such a situation. See Mitchell, above, at 507, and Crockett, where the declaration was, that damned man has poisoned me,' which may be presumed to be vindictive; and Bonner, 6 C. & P. 386, 1834, where the dying declaration was distinctly proved to be incorrect. Such considerations show the necessity of caution in receiving impressions from accounts given by dying persons; especially when it is considered, that they cannot be subjected to cross-examination-a power quite as necessary for securing the truth as the religious obligation of an oath can be. And, of course, the ordinary 'sanctions' of courts of justice cannot exist in this case. See Spilsbury, 1835. When a party comes to the conviction that he is about to die, he is in the same practical state as if called on in a court of justice under the sanction of an oath, and his declarations as to the cause of his death are considered equal to an oath, but they are, nevertheless, open to observation. For though the sanction is the same, the opportunity of investigating the truth is very different, and therefore the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of more full investigation by the means of cross-examination': per Alderson B., Ashton, 2 Lewin, C. C. 147, 1837.

Contradiction] Dying declarations are, of course, open to direct contradiction in the same manner as any other evidence; and as defendant is at liberty to show that a prosecutor-witness is not to be believed on his oath, he seems to be equally at liberty to prove that the character of the deceased was such that no reliance is to be placed on his dying declarations. 2 Russ. Cri. 2094, citing Macarthy, 1842, where A. (deceased) had declared that B. (defendant) had assaulted him and knocked him down. B. had stabbed A. while A. was pursuing him to give him into custody. The judge allowed cross-examination to show that A.'s character was so bad that B. might reasonably think that A. was following him to rob him; and it was proved by two friends of A. that A. had never been knocked down at all. Perhaps, therefore, Phips. p. 300, goes too far in saying, 'There is no express English authority.'

There may perhaps be addel

9. Enquiries made at defendant's request] It seems that the answers to such inquiries may be given in evidence on the authority of (Campbell, below, in some cases, and) J. Gray, 6 Cr. A. R. 242, 1911, where Alverstone L.C.J. said: 'Prisoner asked for certain inquiries to be made, and although it may be that in some cases the result of those inquiries may be given in evidence, evidence of further facts obtained as a result of those inquiries, which facts are not a direct answer to those inquiries, is not admissible. This further evidence in this case was admitted,' viz., the police gave hearsay evidence that defendant's discharge was inaccurate-which was his case-and went on to say that persons not called said it was a forgery: see Phips. 239. But hearsay in answer to inquiries which defendant has not asked for is not admissible: J. W. P. Campbell, 8 Cr. A. R. 75; 77 J. P. 95, 1912: c. q., partly because defendant was not allowed to cross-examine on the hearsay evidence.

Confessions.

37

CONFESSIONS, ADMISSIONS, INCRIMINATING
STATEMENTS.

I. BEFORE EXAMINATION OF DEFENDANT.

A. Self-incriminating Statements.

Definition] In criminal law, confession generally means an acknowledgment of guilt; admission is of some fact not involving criminal intent. T. 724, 862; Phips. 248. Sometimes, however, 'confession' merely means a connected statement which the prosecution offers as incriminating; e.g., Layer, 214: By confession I understand not necessarily a full confession of guilt, but any statement made which, being relevant to the issue, may be put in evidence against the person making it,' per the C. J. in Wong Chin Kwai. Thus confessions of other crimes not relating to the charge, e.g., showing or admitting a general tendency even to the crime charged, are inadmissible: Cole, 1810.

Confessions may be divided into two classes:-Judicial and extrajudicial.

Judicial confessions are those which are made before the magistrate or in court in the due course of legal proceedings: T. s. 866; and any such is sufficient by itself to support a conviction.' It is, in other words, a plea of guilty. Extra-judicial are those made elsewhere: If it be but an extra-judicial confession tho' it be in court, as where the prisoner freely tells the fact, and demands the opinion of the court whether it be felony, tho upon the fact thus shewn, it appear to be felony, the court will not record his confession, but admit him to plead to the felony not guilty.' 2 Hale, P. C. 225.

Presumption of truth] The confessions of defendants are received on the same principle as that on which admissions in civil suits are received, viz., the presumption that a person will not make an untrue statement against his own interest. T. s. 723.

Rebuttable by (a) facts, (b) law] An admission by a defendant is not conclusive, and if it afterwards appear in evidence that the fact was otherwise, the admission will be of no weight. Thus, on a trial for bigamy, where defendant had admitted the first marriage ceremony, and it appeared that such marriage was void, for want of consent of the guardian of the woman, he was acquitted: Le Blanc J., following Bridgwater, 3 Stark. Ev. 1187 n., 1st edn., 1801. So in arson of a ship with intent to injure two other part-owners, it was held that prosecutor could not make use of an admission that these persons were owners, if it appeared that the requisites of the Shipping Acts had not been complied with. Philp. 1830.

Effect of confessions] Whether extra-judicial confessions . . . uncorroborated by any other proof of the corpus delicti are of themselves

in general sufficient whereon to justify a conviction, has been the subject of grave doubt. T. s. 868. It is said to have been decided to be so in Wheeling, 1 Lea. 311 n., 1789; but the report is very meagre, and despite this case (which he explains) Mr. Greaves in a note to 3 Russ. Cri. 366, 4th ed. (by him: 1865), says, 'it does not appear that it has ever been expressly decided, that the mere confession of a prisoner alone, and without any other evidence, is sufficient to warrant a conviction.' But perhaps the true rule is that in the 7th edn., 1909, vol. 2, 2156: An extra-judicial confession, if duly made and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroboration aliunde in the case of most crimes, but such a confession is not, as a rule, accepted by itself in cases of murder or bigamy or offences involving title to property, all of which may involve mixed questions of law and fact.' So Phips. 249. For an instance, see Sykes, 8 Cr. A. R. 233, 1913: murder; confession retracted. The invariable practice in serious cases is for the judge to warn the accused of the gravity of his plea and to offer him 'freely' to retract it. Best, s. 549. See Kersey.

Credibility] See last paragraph. About the degree of credit which a jury ought to attach to a confession, much difference of opinion has existed. By some it has been considered as forming the highest and most satisfactory evidence of guilt: per Grose J., delivering the opinion of the judges in Lambe, 2 Lea. 554, 1791. So it is stated by the court in Warwickshall, 1 Lea. 263, 1783, that 'a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it.'

On the other hand, it is said by Foster J. (Discourses, 243) that 'hasty confessions made to persons having no authority to examine, are the weakest and most suspicious of all evidence. Proof may be too easily procured, words are often mis-reported through ignorance, inattention, or malice . . . and they are extremely liable to misconstruction.' Moreover, this evidence is not, in the usual course of things, 'to be disproved by that sort of negative evidence by which the proof of plain facts may be, and often is, confronted '-an opinion adopted by Blackstone, 4 Com. 357. It has been said that it is not to be conceived that a man would be induced to make confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. See T. s. 865. It cannot be doubted, however, that instances have occasionally occurred in which innocent persons have confessed themselves guilty of the gravest of crimes. Three men were convicted of the murder of a Mr. Harrison. One of them confessed himself guilty of the fact, under a promise of pardon; the confession, therefore, was not given in evidence against him, and a few years afterwards it appeared that Mr. Harrison was alive. MS. case, cited 1 Lea. 264 n.; and see T. s. 863. Other sources of distrust are the zeal which generally prevails to detect offenders . . . and the strong disposition which is often displayed by persons engaged in pursuit of evidence to magnify slight grounds of suspicion into sufficient proof, together with the character of the witnesses, who are sometimes necessarily called in in cases of secret and atrocious crime." Ib. s. 862. See per Alderson B., Simons, 6 C. & P. 541, 1834.

Inadmissible confessions] Prima facie, as a matter of course, a confession by defendant is admissible against him. But there are certain grounds which may be shown by him sufficient to exclude the confession. The general rule is that no confession by defendant is admissible which is made in consequence of any inducement of a temporal nature, having reference to the charge against him, held out by a person in authority. But if an inadmissible confession gives a clue to other evidence in the case, that may be given. Warwickshall, above; cf. Leatham, 1860.

It is usual to speak of a threat or inducement as excluding the confession; and whether a man says, 'If you do confess I will not do so and so,' or whether he says, 'If you do not confess I will do so and so,' makes very little difference, if in fact the person accused is influenced. All that is here said, therefore, will be applicable to both threats and inducements.

In Boughton, 1910, both a father and a mother had told defendant that if he would sign an apology he would not be prosecuted, and the mother wrote out a form which he sent back unsigned, and this paper was not produced at the trial, but the judge treated it as a qualified confession' having some bearing on the question of guilt: c. q.

What is an inducement] The reported cases in which statements by defendant have been held inadmissible are very numerous, and far from consistent with each other.' Best, s. 551. Before Baldry, 2 Den. C. C. 430; 21 L. J. M. C. 130; 5 Cox C. C. 523, 1852, they had gono a very great length. There, all the previous cases were reviewed. A constable had said to defendant, after telling him the charge, that he must not say anything to criminate himself; what he did say would be taken down, and used as evidence against him.' L. Campbell C.J. received the evidence, but reserved the point for the C. Ĉ. C. R., which was unanimous that the statement was admissible. Pollock C.B. said, 'A simple caution to the accused to tell the truth, if he says anything, has been decided not to be sufficient to prevent the statement being given in evidence; and although it may be put that when a person is told to tell the truth he may possibly understand that the only thing true is that he is guilty, that is not what he ought to understand. . . . It has been decided that that would not prevent the statement being given in evidence, by Littledale J. in Court, 7 C. & P. 486, 1836; and by Rolfe B. in . . . Holmes, 1 C. & K. 248, 1843; 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; the objectionable words being, that it would be better to speak the truth,' because they import that it would be better for him to say something: Garner, 1 Den. C. C. 329; 2 C. & K. 920; 3 Cox C. C. 175, 1848. The true distinction between the present case and a case of that kind is, that here it is left to the prisoner a perfect matter of indifference whether he should open his mouth or not.'

Court was this: before a magistrate on a charge of forgery, prosecutor said, in the hearing of defendant, that he considered him as the tool of one G., and the magistrate then told him to be sure and tell the truth; on which he made a statement. It was held by Littledale J. that evidence of this statement was admissible. Holmes was charged with rape; the magistrate said, 'Be sure you say nothing but the truth, or it will be taken against you, and may be given in evidence against you at your trial.' Evidence of the statement then made by