Page:Federal Reporter, 1st Series, Volume 8.djvu/270

 256 FBDKBAL REPORTEE.- �Heard, Lead. Crim. Cas. (2d Ed.) 484, 630 ; 2 Euss. Crimes, (8th Ed.) 824; 1 Whart. Crim. Law, (17th Ed.) § 683. �The real question is whether there bas been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from fear of the threat or hope of profit from the promise. Steph. Dig. "Evidence," p. 70, and note ; Reg. v. Reason, 12 Cox, 228. And Chief Baron Kelly said: "The cases excluding confession, on the ground of unlawful inducement have gone too far for the protection of crime." Id. p. 73, and note; Reg. v. Reeve, 12 Cot, 179. The same thing was said by Baron Parke, and he farther said that — " He could not look at the decisions without some shame when he considered what objections had prevailed to prevent the reception of confessions in evi- dence, and that justice and common sense had been too frequently sacriflced at the shrine of mercy." Reg/. v. Baldry, 5 Cox, 623; S. C. 2 Ben. & Heard, Lead. Crim. Cas. (2d Ed.) 484, 495. �Mr. Justice Earle said that the sacrifice was made, "not at the shrine of mercy, but at the shrine of guilt." Id. I am aware that the cases on this subject are conflicting to that extent, that if we look only for precedents any given case can be ruled one way or the other, so often are the established distinctions overlooked. But I think the principle to be extracted from them amounts to this: The court will submit the confession to the jury for what it may be worth, in all cases where the threat or promise has been made by one having no authority over the prosecution for the offence, and will exclude it in all cases where there has been a threat or promise, of the nature above described, to one having such authority, or in his presence or by his sanction. There may be possible qualifications to this state- ment, as applicable to other circumstances, but it is sufficiently com- prehensive to include the facts we have in hand. As I understand the law established by the cases that show the adjudication to have been made with careful consideration, the determination of the ques- tion of authority depends upon the relation of the person to a crim- inal prosecution for the act done by the accused. If some ofiScious person, not at all so related to the prosecution for the crime, should, by threats or promises, extort a confession, it would be a question, not of the competency of the evidence for the judges to decide, but of its weight with the jury. The elements entering into the prelim- inary inquiry by the judge, where he is called on to determine the competency of the evidence, are these : �(1) Has the person to whom, ov in whose presence, or by whose sanction, the alleged confession was made, any authority f (2) Were the threats or promises of that character that should exclude the confession as one made involuntarily ? ��� �