appears to have been employed, the statement the prisoner may have made is evidence which can be used against him on his trial, and is generally entitled to great weight. And in any other case except treason2 the confession of the ac- [* 314] cused may be received in evidence to establish his guilt, provided no circumstance accompanies the making of it which should detract from its weight in producing conviction. But to make it admissible in any case it ought to appear that it was made voluntarily, and that no motives of hope or fear were employed to induce the accused to confess. The evidence ought to be clear and satisfactory that the prisoner was neither threatened nor cajoled into admitting what very possibly was untrue. Under the excitement of a charge of crime, coolness and selfpossession are to be looked for in very few persons; and however strongly we may reason with ourselves that no one will confess a heinous offence of which he is not guilty, the records of criminal courts bear abundant testimony to the contrary. If confessions could prove a crime beyond doubt, no act which was ever punished criminally would be better established than witchcraft ; 4 10 Grat. 731; Shifflet v. Commonwealth, 14 Grat. 652; Page v. Commonwealth, 27 Grat. 954; Williams v. Commonwealth, 27 Grat. 997; United States v. Cox, 1 Cliff. 5, 21; Jordan's Case, 32 Miss 382; Runnels v. State, 28 Ark. 121 ; Commonwealth v. Holt, 121 Mass. 61; Miller v. People, 39 Ill. 457. 1 It should not, however, be taken on oath, and if it is, that will be sufficient reason for rejecting it. Rex v. Smith, 1 Stark. 242; Rex v. Webb, 4 C. & P. 564; Rex v. Lewis, 6 C. & P. 161; Rex v. River, 7 C. & P. 177; Regina v. Pikesley, 9 C. & P. 124; People v. McMahon, 15 N. Y. 384. "The view of the English judges, that an oath, even where a party is informed he need answer no questions unless he pleases, would, with most persons, overcome that caution, is, I think, founded on good reason and experience. I think there is no country certainly there is none from which any of our legal notions are borrowed where a prisoner is ever examined on oath." People v. Thomas, 9 Mich. 318, per Campbell, J. - 2 In treason there can be no conviction unless on the testimony of two witnesses to the same overt act, or on confession in open court. Const. of United States, art. 3, § 3. See Smith v. Commonwealth, 4 See Mary Smith's Case, 2 Howell's State Trials, 1019; Case of Essex Witches, 4 Howell's State Trials, 817; Case of Suffolk Witches, 6 Howell's State Trials, 647; Case of Devon Witches, 8 Howell's State Trials, 1017. It is true that torture was employed freely in cases of alleged witchcraft, but the delusion was one which often seized upon the victims as well as their accusers, and led the former to freely confess the most monstrous and impossible actions. Much curious and valuable information on this subject may be found in "Superstition and Force," by Lea; "A Physician's Problems," by Elam; and Leckey, History of Rationalism. and the judicial executions which have been justified by such confessions ought to constitute a solemn warning against the too ready reliance upon confessions as proof of guilt in any case. As" Mr. Justice Parke several times observed" while holding one of his circuits, "too great weight ought not to be attached to evidence of what a party has been supposed to have said, as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say." 1 And when the admission is full and positive, it perhaps quite as often happens that it has been made under the influence of the terrible fear excited by the charge, and in the [* 315] hope that confession may ward * off some of the conse quences likely to follow if guilt were persistently denied. A confession alone ought not to be sufficient evidence of the corpus delicti. There should be other proof that a crime has actually been committed; and the confession should only be allowed for the purpose of connecting the defendant with the of fence. And if the party's hopes or fears are operated upon to induce him to make it, this fact will be sufficient to preclude the confession being received; the rule upon this subject being so strict that even saying to the prisoner it will be better for him to confess, has been decided to be a holding out of such inducements to confession, especially when said by a person having a prisoner in custody, as should render the statement ob[* 316] tained by means of it inadmissible. If, however, * state 1 Note to Earle v. Picken, 5 C. & P. 542. See also 1 Greenl. Ev. § 214, and note; Commonwealth v. Curtis, 97 Mass. 574; Derby v. Derby, 21 N. J. Eq. 36; State v. Chambers, 39 Iowa, 179. 2 In Stringfellow v. State, 26 Miss. 157, a confession of murder was held not sufficient to warrant conviction, unless the death of the person alleged to have been murdered was shown by other evidence. In People v. Hennessey, 15 Wend. 147, it was decided that a confession of embezzlement by a clerk would not warrant a conviction where that constituted the sole evi dence that an embezzlement had been committed. So on an indictment for blasphemy, the admission by the defendant that he spoke the blasphemous charge, is not sufficient evidence of the uttering. People v. Porter, 2 Park. Cr. R. 14. And see State r. Guild, 5 Halst. 163; Long's Case, 1 Hayw. 524; People v. Lambert, 5 Mich. 349; Ruloff v. State, 18 N. Y. 179. 3 Rex v. Enoch, 5 C. & P. 539; State v. Bostick, 4 Harr. 563; Boyd v. State, 2 Humph. 390; Morehead v. State, 9 Humph. 635; Commonwealth v. Taylor, 5 Cush. 605; Rex v. Par ments have been made before the confession, which were likely to do away with the effect of the inducements, so that the tridge, 7 C & P. 551; Commonwealth v. Curtis, 97 Mass. 574; State v. Staley, 14 Minn. 105; Frain v. State, 40 Geo. 529; Austine v. State, 51 Ill. 236; People v. Phillips, 42 N. Y. 200; State v. Brockman, 46 Mo. 566; Commonwealth v. Mitchell, 117 Mass. 431; Commonwealth v. Sturtivant, 117 Mass. 122. Mr. Phillips states the rule thus: "A promise of benefit or favor, or threat or intimation of disfavor, connected with the subject of the charge, held out by a person having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducements, either of hope or fear. The prosecutor, or prosecutor's wife or attorney, or the prisoner's master or mistress, or a constable, or a person assisting him in the apprehension or custody, or a magistrate acting in the business, or other magistrate, has been respectively looked upon as having authority in the matter; and the same principle applies if the principle has been held out by a person without authority, in the presence of a person who has such authority, and with his sanction, either express or implied." 1 Phil. Ev. by Cowen, Hill, and Edwards, 544, and cases cited. But we think the better reason is in favor of excluding confessions where inducements have been held out by any person, whether acting by authority or not. Rex v. Simpson, 1 Mood. C. C. 410; State v. Guild, 5 Halst. 163; Spears v. State, 2 Ohio, N. s. 583; Commonwealth v. Knapp, 9 Pick. 496; Rex v. Clewes, 4 C. & P. 221; Rex v. Kingston, 4 C. & P. 387; Rex v. Dunn, 4 C. & P. 543; Rex v. Walkley, 6 C. & P. 175; Rex v. Thomas, 6 C. & P. 353. The reason is, that in the agitation of mind in which the party charged is supposed to be, he is liable to be influ enced by the hope of advantage or fear of injury to state things which are not true." Per Morton, J., in Commonwealth v. Knapp, 9 Pick. 496; People v. McMahon, 15 N. Y. 387. There are not wanting many opposing authorities, which proceed upon the idea, that " a promise made by an indifferent person, who interfered officiously without any kind of authority, and promised without the means of performance, can scarcely be deemed sufficient to produce any effect, even on the weakest mind, as an inducement to confess." 1 Greenl. Ev. § 223. No supposition could be more fallacious; and in point of fact a case can scarcely occur in which some one, from age, superior wisdom or experience, or from his relations to the accused or to the prosecutor, would not be likely to exercise more influence upon his mind than some of the persons who are regarded as "in authority" under the rule as stated by Mr. Phillips. Mr. Greenleaf thinks that, while as a rule of law all confessions made to persons in authority should be rejected, "promises and threats by private persons, not being found so uniform in their operation, perhaps may, with more propriety, be treated as mixed questions of law and fact; the principle of law, that a confession must be voluntary, being strictly adhered to, and the question, whether the promises or threats of the private individuals who employed them were sufficient to overcome the mind of the prisoner, being left to the discretion of the judge under all the circumstances of the case. 1 Greenl. Ev. § 223. This is a more reasonable rule than that which admits such confessions under all circumstances; but it is impossible for a judge to say whether inducements, in a particular case, Wear fr Law. $40 of 20 The case of People c MoMaun 19 N. X. 365, and Com13Curtis. 7 Mars, 574. have candong comaidered the general In the wond of these, the pienwer had waxed the officer who Male the arrest, whether he had better pisad guilty, and the officer had replied that as a general thing it was better for a man who was guilty to plead guilty, for he got a lighter sentence," After this he muude statements which were relied upon to prove guilt. These statements were not allowed to be given in evidences, Per Foster, J.; "There is no doubt that any inducement of temporal fear or favor coming from one in authority, which preceded and may have influenced a confession, will cause it to be rejected, unless the confession is made under such circumstances as to show that the influence of the inducement had passed away. No cases require more careful scrutiny than those of disclosures made by the party under arrest to azi Heards Lead -Ward r. Su a d case depen is large as : VI FOHLA Granos Bu ve MT DR us an instance with the Z actually beli cat ac the hope and in issemens if a sentence if he pleaded g a determination to plead y Mi trial, thus induced, wood amny lead to an immediate disclosure of guilt." And the court held it an unimportant circumstance that the advice of the officer was given at the request of the prisoner, instead of being volunteered. State v. Guild, 5 Halst. 163; Commonwealth v. Harman, 4 Penn. St. 269; State v. Vaigneur, 5 Rich. 391; Rex v. Cooper, 5 C. & P. 535; Rex v. Howes, 6 C. & P. 404; Rex г. Richards, 5 C. & P. 318; Thompson v. Commonwealth, 20 Grat. 724. 2 See State v. Roberts, 1 Dev. 259; Rex v. Cooper, 5 C. & P. 535; Thompson v. Commonwealth, 20 Grat. 724; State v. Lowhorne, 66 N. C. 538. make such statements as they saw fit concerning the charge against them, during the progress of the trial, or after the evidence for the prosecution was put in; and upon these statements the prosecuting officer or the court would sometimes ask questions, which the accused might answer or not at his option. And although this practice has now become obsolete, yet if the accused in any case should manage or assist in his own defence, and should claim the right of addressing the jury, it would be difficult to confine him to "the record " as the counsel may be confined in his * argument. A disposition has been manifested of [* 317] late to allow the accused to give evidence in his own behalf; and statutes to that effect are in existence in some of the States, the operation of which is believed to have been generally satisfactory. These statutes, however, cannot be so construed as to authorize compulsory process against an accused to compel him to disclose more than he chooses; they do not so far change the old system as to establish an inquisitorial process for obtaining evidence; they confer a privilege, which the defendant may use at his option. If he does not choose to avail himself of it, unfavorable inferences are not to be drawn to his prejudice from that circumstance; 2 and if he does testify, he is at liberty to stop 1 See American Law Register, Vol. V. N. s. pp. 129, 705; Ruloff v. People, 45 N. Y. 213. See The 2 People v. Tyler, 36 Cal. 522; State v. Cameron, 40 Vt. 555. For a case resting upon an analogous principle, see Carne v. Litchfield, 2 Mich. 340. A different view would seem to be taken in Maine. State v. Bartlett, 55 Me. 200. views of the court are thus stated in the recent case of State v. Cleaves, 59 Me. 298. The judge below had instructed the jury that the fact that the defendant did not go upon the stand to testify was a proper matter to be taken into consideration by them in determining the question of her guilt or innocence. This instruction was sustained. Appleton, Ch. J. It has been urged that this view of the law places the prisoner in an embarrassed condition. Not oner, if embarrassed, is the result of his own previous misconduct, not of the law. If innocent, he will regard the privilege of testifying as a boon justly conceded. If guilty, it is optional with the accused to testify or not, and he cannot complain of the election he may make. If he does not avail himself of the privilege of contradiction or explanation, it is his fault if by his own misconduct or crime he has placed himself in such a situation that he prefers any inferences which may be drawn from his refusal to testify, to those which must be drawn from his testimony, if truly delivered. The instruction given was correct, and in entire accordance with the conclusions to which, after mature deliberation, we have arrived. State v. Bartlett, 55 Me. 200; State v. Lawrence, 57 Me. 375." In People v. Tyler, 36 Cal. 522, 529, Sawyer, Ch. J., expresses the con |