Biscoe v. State

Robinson, J., delivered the opinion of the Court. The confession made by the prisoner to Morgan, the committing magistrate, was not a free and voluntary con ⁷ fession; and it ought not therefore to have been permitted to go to the jury. The confession was made under the following circumstances: The prisoner was committed to jail for the murder of Captain Robert R. Dixon, and the magistrate seemed to think it was his duty to get from the prisoner an admission or confession of some kind as to his guilt. Eor this purpose he went to see the prisoner ho less than five times, and at each of these interviews the prisoner denied he had anything to do with the killing of the deceased.

Finally, at the fifth interview, Morgan said he had read a statement in a newspaper “ that a Captain Evans had seen the deceased on his vessel on the trip on which he was killed, and that there was only one other man on board.” Upon making this statement, the prisoner seemed to hesitate, and Morgan then said to him “that it would be better for him to tell the truth, and have no more trouble about it,” and thereupon the prisoner made the confession which was offered in evidence. Morgan further says that in all these interviews, he told the prisoner, he could make him no promises. Now all agree that a confession is not admissible in evidence against the prisoner, unless it was freely and voluntarily made. There is no difficulty in regard to the rule itself, the trouble is in the application of the rule to the facts of each particular case, that is whether it was a free •and voluntary confession, or whether it was procured by the influence of another under a hope of favor or advantage if made, or fear of harm or disadvantage of some kind if withheld.

It is not, of course, au easy matter to measure in all cases the force of the influence used, or to decide as to its precise effect upon the mind of the prisoner; much, very much, we may add, depends'upon the age, the experience, the intelligence and character of the prisoner. And it may he, that Courts leaning to the. side •of mercy, have, in some cases, excluded confessions, when it is difficult to see how the alleged inducement had any ⁸ influence on the mind of the prisoner. As was said by Baron Parke, in Baldry's Case, 2 Den. C. C., 430, “ the rule has been extended quite too far, and justice and common sense have frequently been sacrificed at the-shrine of mercy.” We have no disposition to extend the rule beyond the sound, and well established principles on. which it is founded ; and tested by these principles, the confession in this case is, we think, clearly inadmissible.

The prisoner was in the custody of the law, and although pressed, time and again, to make a confession, and pressed too by one in authority, he persisted in denying his guilt,, and it was not until he was told that. it would be better for him to tell the truth, and have no more trouble about it, that the confession was made. Here then was an inducement, and one, too, of the strongest kind, held ont to him. The witness, it is true, says he told the prisoner he could make no promises, but what does this amount to, when in the next breath we find him saying to the prisoner, that it would he better for him to tell the truth, and thereby have no more trouble about the matter? It was, in fact, saying to the prisoner, if you will tell me the truth, it will not only be the better for you, but you shall have no more trouble about the matter.

In Reg. vs. Garnier, 2 Carr. & K., 920, the witness told the prisoner “ that it would he better for him to tell the truth.” Patteson, J., before whom the case was tried, after conferring with Lord Denman, O. J., held the confession to be admissible, and upon the conviction of the prisoner, the question was reserved for the consideration of all the Judges. After full argument of the case, Pollock, C. B., said: “ When a prisoner has been told that he had better tell the truth, and these expressions are used by, or in the presence of a person in authority, I always reject the evidence.” Maulé, J., said “That the