V. COMMITMENT DISCHARGED.

A person legally committed for a crime, certainly appearing to have been done by some one or other, cannot lawfully be discharged till he be acquitted on his trial, or have an ignoramus (not a true bill) found by the grand jury, or none to prosecute him, on a proclamation for that purpose made by the justices. But if a person be committed on a bare suspicion, without any indictment, for a supposed crime, where afterwards it appears that there was none, as for the murder of a person thought to be dead, who afterwards is found to be alive, he may be safely dismissed without any farther proceeding, for that he who suffers him to escape is properly punishable only as an acces sary to his supposed offence; and it is impossible that there should be an accessary, where there can be no principal; and it will be hard to punish one for a contempt, in disregarding a commitment founded on suspicion, appearing in so uncontested a manner to be groundless. Haw. B. 2. c. 16. sect. 22.

'To

VI. PRECEDENTS OF COMMITMENTS.

1. General warrant of commitment.

county, to wit,

(sheriff or constable, as the case may be) and to the keeper of the jail in the said county.

These are to command you, the said sheriff (or constable) in the name of the commonwealth, forthwith to convey and deliver into the custody of the said keeper of the said jail, the body of A O, of &c. charged before me of &c. (here describe the offence.) And you the said keeper are hereby required to receive the said Á O into your custody in the said jail, and him there safely to keep, until he shall thence be discharged by due course of law. Given under my hand and seal, at the county aforesaid, this year

&c.

county, to wit.

2. Mittimus for felony.

day of

To the keeper of the jail of the said county.

in the

Whereas A O, late of suspicion of a felony by him, as it is said, committed, in stealing

&e. labourer, hath been arrested for

of the value of

the property of

of

&c. Therefore,

on behalf of the said commonwealth, I command you, that you receive the said AO into your custody in the said jail, there to remain, till he be delivered from your custody by due course of law. under my hand and seal, at the said county, the year of the commonwealth.

the year

and in the

day of

Given

in

county, to wit.

3. Another.

J P. a justice of the peace for the said county, to the keeper of the jail in the said county.

These are in the commonwealth's name to charge and command you, that you receive into your said jail the body of A O, late of in the said county, yeoman, taken by A C, constable, of in the said county, and by him brought before me for suspicion of felony, that is to say, for stealing and that you safely keep the said AO in your said jail, until he shall thence be delivered by due course of law. Given under my hand and seal, &c..

county, to wit.

4. Another.

To the keeper of the jail in the said county.

I send you herewith the body of A O, late of &c. labourer, taken and brought before me for, &c. (here describe the offence.) And you the said jailor are hereby commanded to receive the said A O into your jail and custody, and him there safely to keep, till he shall be thence discharged by due course of law. Given under my hand and seal, &c.

5. Mittimus, in the name of the commonwealth.

County, to wit.

The commonwealth of Virginia to the keeper of the jail of the sad county, greeting:

of

Whereas A O, late of in the said county, yeoman, is arrested for suspicion of felony by him, as it is said, committed, in feloniously of the value of taking and carrying away the property You are, therefore, commanded to receive the said A O into your custody in the said jail, there to remain, till he be delivered out of your custody by the laws of the commonwealth. Witness JP, one of the commonwealth's justices assigned to keep the peace for the said county, at the county aforesaid, this

day of year of the commonwealth.

in the

CONFESSION.

AN express confession is the highest conviction that can be. Haw B. 2. c. 31. sect. 1.

Upon a simple and plain confession of the indictment, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession, out of tenderness to the life of the prisoner; and will generally advise him to retract it, and plead to the indictment. 4 Bl. Com. 329.

An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it, by yielding to the mercy of the court, and desiring to submit to a small fine, which the court may accept, without putting him to a direct confession. Haw. B. 2. c. 31. sect. 3.

But no confession whatsoever shall, before final judgment, deprive the defendant of the privilege of taking exceptions, in arrest of judg ment, to faults apparent in the record; for the judges must, ex officio, take notice of all such faults, and any one as amicus curia may inform them. Ibid. sect. 4.

The confession of the defendant, taken on an examination before justices of the peace, or in discourse with private persons, it is said, may be given in evidence against the party confessing, but not against others. (4 Haw. seventh edit. 624.) But it should be observed, that this examination of the offender, being taken in pursuance of the statute of England of 1 & 2 P. & M. c. 13. which is not in force in this country, the trial of a criminal in this state must be governed by the rules of the common law, and our own acts of Assembly; neither of which will justify his own examination in order to convict him. See 4 Bl. Com. 296.

The human mind under the pressure of calamity is easily seduced, and liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail; a confession, therefore, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be planted, is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction. Leach's case in Cr. L. 222. Warwickshall's case, 4 Haw. (7th edit.) 425. See also, 4 Bl. Com. 357.

But if any facts arise in consequence of even such a confession, they may be given in evidence; because they must ever be immutably the same, whether the confession which disclosed them be true or false; and justice cannot suffer by their admission. The truth of these contingent facts, however, must be proved independently of, and not coupled with, or explained by, the conversation or confession from which

they are derived. Leach's case, in Cr. L. 224. Maxey's case, 4 Haw. (7 edit.) 425.

Thus where the prisoner, in consequence of promises of favour, had discovered the stolen goods, which were accordingly found in her possession, it was said by Justice Butler, present Baron Perryn, who agreed, "Whatever acts are done, are evidence; but if those acts are not sufficient to make out the charge against the prisoner, the conversation or confession of the prisoner cannot be received, so as to couple it with those acts, in order to make out the subject matter of proof. A prisoner was tried before me (Mr. Butler) where the evidence was just as it is here. I stopped all the witnesses when they came to the confession. The prisoner was acquitted. There were two learned judges on the bench, who told me, that although what the prisoner said was not evidence, yet that any facts arising afterwards must be received. This point, though it did not affect the prisoner at the bar, was stated to all the judges; and the line drawn was, that although confessions improperly obtained cannot be received in evidence, yet that the acts done afterwards may be given in evidence, though they were done in consequence of the confession." Leach's Cr. L. 250. note (a)--Maxey's case.

So it was held by the court, in Lockhart's case, that although a confession improperly obtained cannot be given in evidence, yet it can never go to the rejection of the evidence of other witnesses, which are got at in consequence of such confession. Leach's Cr. L. 300. Lockhart's case. 4 Haw. (7 edit.) 425.

It was once held, that a prisoner could not be convicted on the single, uncorroborated, evidence of his own confession. Thus, in Alexander Fisher's case, the prisoner was indicted for burglariously breaking and entering the dwelling house of Benjamin Ward, and stealing therein four gold watches of a considerable value; to which indictment he had pleaded Not Guilty. The prosecutor proved that the burglary had been committed, and that the watches were stolen ; but there was no evidence whatever to bring the charge home to the prisoner, except a confession of the fact, which he had freely and voluntarily made before a justice, on his examination; but it was not reduced into writing. The Court. It is an established rule of law, that the mere confession of a crime, without any one single circumstance to corroborate it, is not sufficient to convict a prisoner, unless he should again confess the fact, by pleading guilty to the indictment. - Leach's Cr. L. (1 edit.) 319.

But it has since been held, that the bare confession, regularly proved at the trial, is sufficient, without any corroborating evidence to support it. See 4 Haw. (7 edit.) 425. Leach's Cr. I. (2 edit.) 286.

CONSPIRACY.

I. What it is. II. How punishable.

I. WHAT IT IS.

1. BY the common law, all confederates whatsoever, wrongfully to prejudice a third person, are highly criminal; as where divers per sons confederate together by indirect means to impoverish a third person, or falsely and maliciously to charge a man with being the reputed father of a bastard child, or to maintain one another in any matter, whether it be true or false. Haw. B. 1. c. 72. sect. 2.

2. Journeymen confederating and refusing to work, unless for certain wages, may be indicted for a conspiracy; for the offence consists in the conspiring, and not in the refusal, and all conspiracies are illegal, although the subject matter of them may be lawful. (8 Mod. 11.) So, also, a bare conspiracy to do a lawful act, to an unlawful end, is a crime, although no act be done in consequence thereof. (8 Mod. S21.) And the fact of conspiring need not be proved on the trial, but may be collected by the jury from collateral circumstances. (1 Bl. Rep. 392. 1 Stra. 144.) And if the parties concur in doing the act, although they were not previously acquainted with each other, it is conspiracy. See 2 Leach's Haw. (7th edit.) 122. 4 Bl. Com. 137. Christian's note (4.) See also, the trial of the Journeymen boot and shoe makers of Philadel phia, reported by Lloyd, 1806.

3. "Conspirators be they that do confederate and bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear the other falsely and maliciously to move, or cause to be moved, any indictment or information against another on the part of the commonwealth, and these who are convicted thereof, at the suit of the commonwealth, shall be punished by imprisonment and amercement, at the discretion of a jury:" 1 Rev. Code, p. 30.

4. From this definition of conspirators, it seems clearly to follow, contrary to the opinion of lord Coke, that not only those who actually cause an innocent man to be indicted, and also to be tried upon the indictment, whereupon he is lawfully acquitted, are properly conspirators, but that those also are guilty of this offence, who barely conspire to indict a man falsely and maliciously, whether they do any act in prosecution of such conspiracy or not. Haw. B. 1. c. 72. sect. 2. Ld. Raym. 1169.

5. But an action will not lie for the conspiracy, unless it be put in execution; for in such case, the damage is the ground of the action. Ld. Raym. 378.