held that, if a dying declaration have been reduced into writing, and signed by the deceased, secondary evidence cannot be given of its contents; Per Coleridge, J., R. v. Gay, 7 C. & P. 230, 32 E. C. L. But mere notes of the declaration taken down by one of the parties who were present would not be even admissible. See supra, p. 4.1 Dying declarations-degree of credit to be given to. With respect to the effect of dying declarations, it is to be observed that, although there may have been an utter abandonment of all hope of recovery, it will often happen that the particulars of the violence to which the deceased has spoken were likely to have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed. The consequences, also, of the violence may occasion an injury to the mind, and an indistinctness of memory as to the particular transaction. The deceased may have stated his inferences from facts, concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars, from not having his attention called to them. Such evidence, therefore, is liable to be very incomplete. 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. The passion of anger once excited may not have been entirely extinguished, even when all hope of life is lost. See R. v. Crockett, 4 C. & P. 544, ante, p. 34, 19 E. C. L., where the declaration was, "that damned man has poisoned me," which may be presumed to be vindictive; and R. v. Bonner, 6 C. & P. 386, 25 E. C. L., where the dying declaration was distinctly proved to be incorrect. Such considerations show the necessity of caution in receiving impressions from accounts given by persons in a dying state; especially when it is considered that they cannot be subjected to the power of cross-examination; a power quite as necessary for securing the truth as the religious obligation of an oath can be. The security, also, which courts of justice have in ordinary cases for enforcing truth, by the terror of punishment and the penalties of perjury, cannot exist in this case. The remark before made on verbal statements which have been heard and reported by witnesses applies equally to dying declarations; namely, that they are liable to be misunderstood and misreported, from inattention, from misunderstanding, If dying declarations have been reduced to writing and signed, the writing must be produced or accounted for. State v. Tweedy, 11 Ia. 350. [But a verdict will not be set aside where parol evidence of such declarations has been admitted without objection, on a subsequent objection to the testimony of the one who reduced the declarations to writing. Epperson v. State, 5 Lea, (Tenn.) 291. Where the dying declarations have been reduced to writing by a bystander and are not signed, parol evidence of them is not precluded. Allison v. Commonwealth, 99 Pa. St. 17. See State v. Cantieny, 34 Minn. 1.] A written statement of dying declarations taken down by a magistrate is admissible as secondary evidence, if the magistrate swears that he cannot recollect the statement of the deceased. Beets r. State, 1 Meigs, 106. S. Notes of an ante mortem statement not read to the deceased are not admissible, but may be used by the writer, as a witness, to refresh his memory. State v. Fraunburg, 40 Ia. 555. or from infirmity of memory. In one of the latest cases upon the subject, the species of proof is spoken of as an anomaly, and contrary to all the general rules of evidence, yet as having, where it is received, the greatest weight with juries. Per Coleridge, J., R. v. Spilsbury, 7 C. & P. 196, 32 E. Č. L.; 1 Phill. Ev. 251, 10th ed. "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 crossexamination." Per Alderson, B., R. v. Ashton, 2 Lewin, C. C. 147. See also the remarks of Pollock, C. B., to the same effect in delivering the judgment of the Court of Criminal Appeal in R. v. Reaney, supra, p. 36. [*39 Dying declarations-evidence in answer to proof of. Dying declarations are, of course, open to direct contradiction in the same manner as any other part of the case for the prosecution; and as a prisoner is at liberty to show that a prosecutor who appears in court against him is not to be believed upon his oath (see post), 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. 3 Russ. on Cri. 361, 5th ed. As the declarations of a dying man are admitted on a supposition that, in his awful situation, on the confines of a future world, he had no motive to misrepresent, but, on the contrary, the strongest motives to speak without disguise and without malice, it necessarily follows that the party against whom they are produced in evidence may enter into the particulars of his state of mind and of his behavior in his last moments, and may be allowed to show that the deceased was not of such a character as was likely to be impressed with a religious sense of his approaching dissolution. See 1 Phill. Ev. 242, 10th ed.2 'The substance of dying declarations may be proved. It need not be the exact words. Ward v. State, 8 Black. 101; Montgomery v. State, 11 Stant. 424. [Verbal evidence of the dying declarations of the deceased is admissible. State v. Somnier, 33 La. An. 237; Roberts v. State, 5 Tex. App. 141. Even when the copy reduced to writing by a magistrate is in the custody of the court. Kelly v. State, 52 Ala. 361.] When the declaration is not of facts known to the deceased, but of an opinion or suspicion, as an inference from other facts, the jury should disregard it as evidence in itself. State v. Arnold, 13 Ired. 184; Nelms v. State, 13 Smed. & M. 500. S. 2 State v. Elliot, 45 Ia. 486. So the prisoner may show conflicting declarations made by deceased. Battle v. State, 74 Ga. 101. What is an inducement Whether the inducement must have reference to the charge Inducement held out with reference to a different charge Inducement must be held out by a person in authority Who is a person in authority Inducement by offer of pardon from the crown where held not to have ceased Confessions obtained by artifice or deception, admissible by questioning, admissible in course of legal proceedings Declarations accompanying the delivering up of stolen property by agents Admissions by the prosecutor The whole of a confession must be taken together Ground of admissibility. The confessions of prisoners are received in evidence upon the same principle upon which admissions in civil suits are received, viz., the presumption that a person will not make an untrue statement against his own interest. 1 Phill. Ev. 397, 9th ed.1 1 State v. Guild, 5 Halst. 163; People v. McFall, 1 Wheel. C. C. 108. The commonwealth is not bound to accept an admission of defendant that the fact offered to be proved is true, but may go on to establish it by evidence. Commonwealth v. Miller, 3 Cush. 243. As to confessions generally. Brister v. State, 20 Ala. 107; Alfred v. State, 2 Swan, 581; State v. York, 37 N. H. 175; State v. Wentworth, Id. 196; Shifflett's Case, 14 Gratt. 652; State v. George, 5 Jones' L. 233; Bob v. State, 32 Ala. 560; State v. Gregory, 5 Jones' L. 315; State v. Lamb, 28 Mo. 228; Meyer v. State, 19 Ark. 156; Fouts r. State, 8 O. (N. S.) 98; Hartung v. People, 4 Parker, C. R. 319; Keenan v. State, 8 Wis. 132; Drumright v. State, 29 Ga. 430; Lynes v. State, 36 Miss. 617; Cain v. State, 18 Tex. 387; People v. Harriden, 1 Parker, C. R. 344; Hendrickson v. People, Id. 406; People v. Thayers, Id. 595; Liles v. State, 30 Ala. 24; Scott v. State, Id. 503; Commonwealth v. Reny, 8 Gray, 501; Aiken v. State, 35 Ala. 399. As to confessions by slaves, see Seaborn r. State, 20 Ala. 15; Spencer r. State, 71 Id. 192; Stater. Clarissa, 11 Id. 57. Evidence that defendant was in the habit of drinking cannot be given by him to explain or account for declarations. Whitney v. State, S Mo. 165. [Ballard v. State, 19 Neb. 609.] The fact that the defendant was intoxicated, "that he was excited and scattering in his conversation, and that no one who heard him could repeat all that he said," does not render his declarations or confessions of guilt inadmissible. Eskridge v. State, 25 Ala. 30. A statement by the pris oner before he was charged with the crime is admissible against him. State v. Vaigneur, 5 Rich. 391. [State v. Carrick, 16 Nev. 120. But a statement in reference to the future commission of an offence is not a confession. Banks r. State, 13 Tex. App. 182.] A conversation between a witness and the prisoner having been given in evidence by the State, it was held that other conversations on the same matter between Nature and effect of confessions. Confessions may be divided into two classes:-Judicial and extra-judicial. They may also be divided into plenary and non-plenary.' A plenary judicial confession, i. e., a confession made by the accused before a tribunal competent to try him, is sufficient whereon to found a conviction. It is said by Lord Hale, that where the prisoner freely tells the fact, and demands the opinion of the court, whether it be felony, though upon the fact thus shown, it appears 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. A plenary judicial confession is in other words a plea of guilty. the same persons, were not admissible on behalf of the defendant. State v. McPherson, 9 Ia. 53. The giving in evidence, against the defendant in a criminal case, of his statements at the time of his arrest, as tending to show that he then gave a false account of himself, does not entitle him to show that he had previously, on other occasions given a different and true account of the same facts. Commonwealth v. Goodwin, 14 Gray, 55. When a conversation has been testified to, it is competent for defendant to give evidence of a subsequent conversation with the same witness. People v. Green, 1 Parker's Cr. Rep. 11. A confession made at one time is not destroyed by a denial made at another time. Jones v. State, 13 Tex. 168. Words uttered in sleep by a defendant in a criminal case are not admissible in evidence against him. People v. Robinson, 19 Cal. 40. The record of the examination before a justice is evidence on the trial of the prisoner even if it show no confession but only refusals to answer. People v. Banker, 2 Park. C. R. 26. [But see State v. Spier, 86 N. C. 600. See State v. Graham, 74 N. C. 646. So also a statement made by the accused at an inquest, whether the coroner's jury was legally organized or not. Snyder v. State, 59 Ind. 105.] But it cannot be used by him in his defence. Nelson v. State, 2 Swan, 237. Admissions made to a clergyman are admissible as evidence in a criminal case, if not made to him in his professional character, in the course of discipline enjoined by his church. People v. Gates, 13 Wend. 311. A letter written by the defendant after his arrest and before trial, in relation to confessions made by an accomplice, is admissible in evidence against him. State v. Watson, 31 Mo. 361. The confessions of an accused person should not be excluded, because the facts themselves have been proved by witnesses who were present when they transpired. Such confessions and the testimony are of the same grade of evidence. Austin v. State, 14 Ark. 556. Statements made under such circumstances that a defendant in a criminal case might have heard them, and would have been likely to contradict them if untrue, are admissible against him. Commonwealth v. Gallavan, 9 Allen, 271. Telegraphic messages are admissible against a party as evidence of his declarations, and also as evidence tending to show communications to the person to whom they were addressed, if proved to be in his handwriting, and to have been received at the telegraph office, and sent over the wires properly directed. Commonwealth v. Jeffries, 7 Allen, 548. On a trial for adultery the admission of the accused that he is married is competent evidence of that fact. State v. Medbury, 8 R. I. 543. Evidence that the prisoner was charged with the theft and made no reply or denial is proper, its effect being left to the jury. State v. Pratt, 20 Ia. 267. [Commonwealth v. Brailey, 134 Mass. 527.] The prosecution cannot rely upon defendant's not having offered himself as a witness. People v. Anderson, 39 Cal. 703. Where the defendant confesses the crime with which he is charged, circumstances corroborating such confessions are admissible. People v. Jones, 32 Cal. 80. [And the corroboration is sufficient, even if the corroborating circumstances are capable of innocent construction, and the confession alone furnishes the key. People v. Jaehne, 4 N. Y. Crim. Rep. 478.] Confessions by one intoxicated not admissible. Commonwealth v. Howe, 9 Gray, 110. S. See State v. Bryan, 74 N. C. 351. Contra, Lester v. State, 32 Ark. 727. State v. Grear, 28 Minn. 426. 1Statements of the defendant which do not amount to an actual confession of guilt, but are admissions of isolated facts from which guilt may be inferred, are relevant and admissible. Ettinger v. Commonwealth, 98 Pa. St. 338. Luby v. Commonwealth, 12 Bush. (Ky.) 1. An extra-judicial confession is good evidence, but not conclusive, even though plenary. Whether or not a plenary extra-judicial confession, uncorroborated in any way whatever, is sufficient whereon. *to found a conviction, has been the subject of some discussion. *411 It is said to have been decided to be so in R. v. Wheeling, 1 Leach, Cr. Ca. 311 (n); but it seems doubtful, whether the language is to be taken in the unqualified sense which, at first sight, it appears to bear. The subject is ably discussed by Mr. Greaves in a note to 3 Russ. 4th ed. 366; and he is of opinion that it has never been expressly decided, that the mere confession of a prisoner alone, and without any other evidence, is sufficient to warrant a conviction." 1 Confessions ought always to be received with great caution, lest the language of the witness should be substituted for that of the accused. Law . Merrill, 6 Wend. 268; Malin v. Malin, 1 Id. 625; State v. Gardiner, Wr. Rep. 393. [They are entitled to the highest credit when voluntarily and freely made. State v. Brown, 48 Ia. 382. They are of little weight when liable to misconstruction. Chicago, etc., R. R. Co. v. Button, 68 Ill. 409. Statements made in the presence of the prisoner as to the circumstances attending the commission of the crime charged, are evidence only to the extent that they are admitted by him expressly or by his silence. Any statement made at the same time by the one charged is also admissible. People r. Estrade, 49 Cal. 171. Statements made by the prisoner at a different time are inadmissible to rebut a confession. McCullough v. State, 48 Ind. 109; Ray v. State, 50 Ala. 104.] The confession of an infant is competent, but the jury should be careful in weighing it. Mather v. Clark, 2 Atk. 209. A boy of twelve years and five months may be convicted on his own confession and executed. Capacity to commit a crime necessarily supposes capacity to confess it. State v. Guild, 5 Halst. 163. See also, Commonwealth v. Yard, Mina's Trial, Pamp., p. 10. The case of a boy of twelve years, where it was left to the jury (the point being doubtful) to determine, as a matter of fact, whether the confession was voluntary. State v. Aaron, 1 Southard, 231. The case of a boy ten years old. Case of Stage et al., 5 Rog. Rec. 177. When there is evidence from which the jury may reasonably infer the commission of the offence charged, sufficient foundation is laid for admitting the voluntary confessions of the prisoner; the prosecution being still held to the production of proof requisite to warrant conviction. State r. Laliyer, 4 Minn. 368. [The declarations of a defendant are admissible in evidence against him, although the witness testifying to them did not hear the whole of the conversation of which they form a part. State v. Pratt, 88 N. C. 639. But when made simply for the purposes of a particular trial they cannot be used against the party upon another and different trial. McKinney v. Salem, 77 Ind. 213.] A mere confession of the party charged with crime uncorroborated by circumstances is insufficient to justify conviction. Bergen v. People, 17 Ill. 426; People v. Rulloff, 3 Parker C. R. 401. [People v. Thrall, 50 Cal. 415; Matthews v. State, 55 Ala. 187.] Extra-judicial confessions of a prisoner are not sufficient to warrant a conviction, without proof aliunde of the corpus delicti. Brown v. State, 32 Miss. 433; Same v. State, 33 Id. 347. [Hill v. State, 11 Tex. App. 132; Kennon v. State, 11 Tex. App. 356; Williams v. People, 101 Ill. 382; Johnson v. State, 59 Ala. 37; State v. Knowles, 48 Ia. 598; People v. Lane, 49 Mich. 340. In New York a confession is evidence of the corpus delicti. People v. Jaehne, 4 N. Y. Crim. Rep. 478.] The extra-judicial confession of a prisoner indicted for murder, without proof aliunde of the death of the party, is insufficient to convict him. Strongfellow v. State, 26 Miss. 157. There must be satisfactory evidence that a crime has been committed; as that, in case of larceny, the property has been feloniously taken and carried away, even when the prisoner shows satisfactory indications of guilt. Tyner v. State, 5 Humph. 383; People v. Hennessey, 15 Wend. 147; Keithler v. State, 10 Smed. & M. 192; Stephen v. State, 11 Ga. 225; People v. Badgley, 16 Wend. 53; State v. Cowan, 7 Ired. 239; State v. Lamb, 25 Mo. 218. [The proof that a crime has been committed is necessary to sustain a confession. But this is only a proof of an objective crime, not that it has been committed by the defendant. It need not be introduced before the confession, and it is enough if it be beyond reasonable doubt. State v. Grear, 29 Minn. 221; Gray v. Commonwealth, 101 Pa. St. 380.] If the prisoner is in law capable of committing crime he is liable to be convicted upon his own confession. Stud |