
    *Schwartz v. Commonwealth.
    
    November Term, 1876,
    Richmond.
    [21 Am. Rep. 365.]
    Rape — Confessions.—S is examined as a witness against T charged with the crime of rape. He is ashed if he and T had not agreed to commit the rape, and if he did not hear the cries of the girl whilst T had her in the hushes; and he denies both. The examination is interrupted for a few minutes, and the witness is retired into another room, when he states to two of the officers and another person, that to help The had sworn falsely; and when his examination is resumed he says that he and T had agreed to commit the rape, and that he did hear the cries of the girl. S is then indicted for perjury in making his first statement. There is no evidence against him hut his own statements. Held: His statements are not sufficient to convict him.
    This was an indictment for perjury in the hustings court of the city of Manchester. ’ On the trial the jury found the prisoner guilty, and assessed his fine at one dollar, and the court sentenced him to imprisonment in the jail of the city for one year. There were a number of exceptions taken by the prisoner to rulings of the court; but this court only considered the question on the motion for a new trial on the ground that the verdict was not sustained by the evidence. The facts are set out in the opinion of Judge Staples. On the application of the prisoner this court awarded him a writ of error.
    G. Wise, for the prisoner.
    The Attorney General, for the commonwealth. ■
    
      
      For monographic note on Confessions, see end of case.
    
   ^Staples, J.

The prisoner was indicted for perjury in the hustings court of the city of Manchester, and was convicted and sentenced to confinement in the jail of the city for one year. After the verdict was rendered, he moved the court to grant him a new trial, upon the ground that the verdict of the jury was contrary to the law and the evidence. His motion was overruled, and the prisoner excepted. His bill- of exceptions contains all the facts proved on the trial, from which it appears that the prisoner was examined as a witness upon the trial of Joseph Turner, before the mayor of Manchester, upon the charge of rape, and upon the examination the prisoner testified that he had no conversation or plot with the said Joseph Turner, before they left Manchester, to commit a rape upon Pallas Boyd; that he and Turner went to the locality of the alleged offence for the purpose of getting flowers, and that he heard no screams from the girl, Pallas Boyd, whilst Turner had her in the bushes; that the commonwealth’s attorney asked that his testimony be written down; that a pause in his examination of two or three minutes ensued, during which time the prisoner was retired from the witness stand; that the prisoner during- this interruption stated to Mr. Fitzgerald, a police officer, to Mr. Redford, a bystander, and to the commonwealth’s attorney, that he had sworn falsely in his testimony just given; that he had done so to screen Turner, and that when he went back on the stand he would tell the truth; that the prisoner was then put on the stand again as a witness, no other witness intervening, and testified that he and Turner had had a bargain and conversation about the girl before they left Manchester, and that he did hear screams from the girl while Turner had her in the bushes; and thereupon the said mayor refused to hear him further. *It was further proved that the prisoner was not warned by said mayor that he had a right to refuse to answer questions put to him; that he had no counsel; that he appeared somewhat confused, but not more so than is usual with witnesses; and that he is in the fifteenth year of his age. And these were all the facts proved on the trial.

The charge in the indictment is of perjury in the first statement before the mayor; and the evidence relied on to establish the perjury is the contradictory statement before the same officer at a subsequent period of the same examination. As will be seen from the bill of exception, this contradictory statement was the sole and only proof adduced by the commonwealth in support of the indictment.

The question we are to determine is, was he properly convicted upon that evidence?

No rule is perhaps better settled than that to authorize a conviction of perjury there must be two witnesses testifying to the falsity of the statement, or one witness with strong corroborating circumstances of such a character as clearly to turn the scale and overcome the oath of the party and the legal presumption of his innocence. This rule is founded upon the idea that it is unsafe to convict in any case where the oath of one man merely is to be weighed against that of another. Lord Tenterden is reported to have said that corroborating circumstances are not sufficient, but that the contradiction must be given by two witnesses. But the rule is now settled otherwise; the confirmatory evidence however must be of a strong character, and not merely corroborative in slight particulars.

It was at one time held that when the same person has by opposite oaths asserted and denied the same fact, he may be convicted on either; for whichsoever of *them is given in evidence to disprove the other, the defendant cannot be heard to deny the truth of that evidence, inasmuch as it came from him. But this doctrine has been long since exploded, and it is now held that the prosecuting attorney must elect which of the two oaths he means to rely upon as false, and he must prove the perjury in that particular statement. Two early English cases are sometimes cited as holding that the perjury may be established by proof of the contradictory oath merely, without other evidence. One of these is an anonymous case decided by Yates, J., at the Lancaster assizes in 1764, and the ruling approved by Lord Mansfield. The other is the case of Rex v. Knill, a short report of which is found in a note in Barnwell & Alderson R., page 929. It is shown, however, in 2 Russell on Crimes, 652, that in each of these cases there were corroborating circumstances in addition to the contradictory oath. But if these cases even go to the extent which is claimed for them, they are overruled by the later English decisions. And it is now held by those courts that the defendant’s own evidence upon oath is not sufficient of itself to disprove the evidence on which the perjury is assigned.

In Regina v. Wheatland, 8 Car. & Payne R. 238, Mr. Baron Gurney held that it was not sufficient to prove that the defendant had on two different occasions given directly contradictory evidence, although he might have wilfully done so; but that the jury must be satisfied affirmatively, that what he swore at the trial was false, and that would not be sufficiently shown to be false by the mere fact that the defendant had sworn contrary at another time; it might be that his evidence at the trial was true, and his deposition before the magistrate false. There must be such confirmatory evidence of the defendant’s deposition before the magistrate *as proved that the evidence given by the defendant at the trial was false.

In Regina v. Hughes, 1 Car, & Kerwan, 519, Tindall, C. J., said: If you merely prove the two contradictory statements on oath, and leave it there, non constat which statement is the true one. See also Mary Jackson’s case, 1 Lewin 270 ; 2 Russell on Crimes 651-652; Roscoe Crim. Evidence, 767-768.

In the United States there are but lew decisions bearing upon the question. The writers on criminal law, however, lay down the rule in conformity with the English cases. 3 Wharton, sec. 2275 ; 2 Bishop Cr. Law, sec. 1005; 1 Greenl. Ev. 259.

The only opposing case is that of the People v. Burden, 9 Barb. R. 469. There Johnson, J., delivering the opinion of the court, enters into an elaborate discussion of the whole subject, and arrives at the following conclusions: That where a defendant by a subsequent deposition expressly contradicts and. falsifies a former one made by him, and in such subsequent deposition expressly admits and alleges that such former one was intentionally false at the time it was made, he may be properly arrested upon an indictment charging the first deposition to be false, without any other proof than that of the two depositions.” To maintain his position, the learned judge relies upon the two English cases already mentioned, not adverting, however, to the fact that there were corroborating circumstances in each of them. The distinction he seeks to establish is not recognized by any adjudicated case, or by any writer on criminal law. This proposition is, that the first oath of the prisoner must be held to be false because in the second he admitted it to be so. In other words, when the prisoner has made two contradictory statements under oath, and in the second he *has acknowledged the intentional falsity of the first, that acknowledgment is sufficient to establish the perjury of the first without further evidence. And it is asked why may not the prisoner be convicted ,of perjury upon his mere confession, as in other cases.

It is not denied that a full judicial confession is perhaps sufficient to found a conviction upon in any case. It is substantially the same as a plea of guilty to the indictment. But it is denied that a mere admission, not judicial, of having sworn falsely, dispenses with all further proof of the fact. As before stated, when there are two conflicting statements under oath the prisoner cannot be convicted upon either, for the reason, say the judges, it is not ppssible to tell which is the true and which -is the false. In such case, it is agreed-on all hands, that strong confirmatory evidence is essential. It is gravely insisted that this confirmatory evidence is fully supplied by the prisoner’s acknowledgment of the falsity of the first statement. "Why'may not the acknowledgment itself be false.,- -

If the second oath, deliberately taken, is insufficient to overcome the first, why should a mere "admission have that effect? When a witness deliberately asserts a fact to be true as within his knowledge, and in a few minutes thereafter deliberately and intentionally asserts the very reverse as within his khdwledge, all ground of innocent mistake being excluded, he thereby indirectly but unequivocally affirms the falsity of the first. ' Do we discredit the first any sooner, or believe the second the more readily, because' the witness tells us that one was intentionally false and, the, other true? We belie/ve neither of them. We place no confidence in either statement, from an absolute inability to determine which is true, or whether either is true. If the witness is afterwards put on his trial for perjury, our *difficulties are in no wise removed. We are still in doubt which is the-true and which is the false. It is very true that a witness making two palpably conflicting statements may sometimes by his- demeanor satisfy the hearer that one is to'-be 'credited rather than the other. But when ’ 'those statements are repeated to a ,-third -person, it is very difficult, if not impossible; to detect the false without some aid from surrounding circumstances. And no mere asseveration of the witness will assist the mind in arriving at a just and accurate conclusion. If the witness is to be convicted of perjury upon his bare declaration -that the first statement is false, it is not1 because we believe his declaration is necessarily true, but upon some idea that it is in the nature of a confession, and therefore to be believed. A deliberate confession .of guilt is generally credited, because it ■ • is presumed to flow from the highest sense of guilt? It must be remembered, however, that there are two statements upon oath, and if the prisoner is to be concluded from denying one to be true, the same reason would conclude him from denying the other, and the prosecutor might select either as the ground of his proceeding. In this very case the commonwealth might have elected to proceed upon the second statement made by the prisoner. In that event all will concede he must have produced other testimony in addition to the contradictory statement first made. Is it possible that the principle is so reserved and is of so little value that the prisoner may be convicted of perjury upon the first, merely because upon his second examination he admitted the first did not contain the truth.

If this be so, the rule laid down that in case of two conflicting statements there can be no conviction unless there is corroborative evidence is not of the *slightest value. When we speak of corroborative evidence, we do not mean such as emanates from the mouth of the prisoner himself, but evidence aliunde, evidence which tends to show the perjury independently of his own declarations. The whole law in reference to perjury is based upon the idea that when there is witness against witness, oath against oath, there must be other evidence to satisfy the mind.

The rule is thus laid down in 1 Greenleaf, sec. 265: If the evidence in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing-more, he cannot be convicted. * * * * If both the contradictory statements were delivered under oath thex'e is nothing to show which of them is false, where no evidence of the falsity is given.” See also Dodge v. State, 4 Zabriskie 455. This is a sound rule, and ought not to be departed 1 from to meet particular cases. In this connection it may be mentioned that the decision in the New York case was made by two judges in a court of three — Judge Selden dissenting.

The case now in hand is a strong illustration of the value of the rule in question. The prisoner was a youth of fifteen, charged before the same magistrate with being implicated in the crime of rape, and acquitted but a few minutes before. Upon his examination he was without counsel or advice, and was not cautioned that he was not bound to criminate himself. His examination had not been completed, but merely suspended; and during this interval he is said to have made to officers of the government the statements upon which his conviction is founded. Before he had concluded he was stopped by the mayor, in the midst of his narrative, and forbade to say more. What he would have further said we cannot even conjecture. *So great is the abhorrence of'the crime of rape, that the passions and suspicions of men are more easily excited than by any other accusation. When, therefore, the prisoner confessed his complicity in the crime, ready credence was given to the statement. If in his first statement he had made the same confession, and in his subsequent examination denied it, it is easy to see that the perjury would have been charged in the last and not in the first. And yet without the aid of other evidence the one statement was entitled to no greater consideration than the other. Upon the whole, I think the prisoner was improperly convicted upon the facts as presented to the jury.

With respect to the instructions, my opinion is, that no errbr was committed by the court either in refusing those asked for, or in giving those that were given. Upon the points presented by the second bill of exception, it is unnecessary to express any opinion, as the question will probably not again arise.

Judgment reversed.

CONFESSIONS.

A. Admissibility of Confessions.

1.What Will Exclude a Confession,

a. West Virginia.

1). Exception to the Rule.

B. Alarm or Agitation Alone Will Not Render Confession Inadmissible.

C. Persons in Authority-Defined.

1. Instances.

2. Master or Mistress Such Person — When.

3. Private Detective Not Snch Person.

D. Whole Confession Must Be Given.

1. Jury May Disregard Part.

E. The General Rule as to Repeated Confessions— Although First Inadmissible, Second May Be Admissible.

1. Instances.

F. Commonwealth Must Show Confession to Be Voluntary-Condition Precedent.

G. Confession Inadmissible until Corpus Delicti Proven.

H. Confession of Accomplice Inadmissible.

I. Confessions Obtained by Fraud.

K. Accused Not Allowed to Prove His Own Declarations.

1. Instances.

Tj. Weight and Degree of Credit to Be Given Confessions.

M. Although Confession Inadmissible Facts Disclosed by It May Be Proven.

N. Admissibility of Confessions a Question for the Court.

O. Credit to Be Given Confessions a Question for the Jury.

A.ADniSSIBIUTY OF CONFESSIONS.

The general rule is that a confession of a prisoner may be given in evidence against him. Smith’s Case. 10 Gratt. 739; Shifflet’s Case, 14 Gratt. 652; Thompson's Case. 20 Gratt. 724; Page’s Case, 27 Gratt. 954; Wolf's Case, 30 Gratt. 833; State v. Morgan, 35 W. Va. 260, 13 S. E. Rep. 385; Hite’s Case, 96 Va. 494, 31 S. E. Rep. 895.

i. What Will Exclude a Confession. — But when it appears that the confession was obtained from the prisoner by some inducement of a worldly or temporal character in the nature of a threat, or promise of benefit, held out to him in respect of his escape from the consequences of the offence, or the mitigation of the punishment, by a person in .authority, or with the apparent sanction of such person, then such confession is inadmissible. Smith’s Case, 10 Gratt. 739, cited and approved in Shifflet’s Case, 14 Gratt. 652: Thompson’s Case, 20 Gratt. 724; Page’s Case, 27 Gratt. 954; Wolf’s Case, 30 Gratt. 833; State v. Morgan, 35 W. Va. 260, 13 S. E. Rep. 385; Hite’s Case, 96 Va. 494, 31 S. E. Rep. 895.

a. West Virginia. — To exclude a confession, it must not only be made under inducements of favour or fear, but such inducements must come from one in authority. State v. Morgan, 35 W. Va. 260, 13 S. E. Rep. 385.

b. Exception to the Rule. — The confessions of the accused, made under inducements, to officers in whose custody he was at the time, are not to be excluded on the trial when the confession is accompanied with the surrender and restoration of the stolen property. Fredrick v. State, 3 W. Va. 695.

B.ALARM OR AGITATION ALONE WILL NOT RENDER CONFESSION INADMISSIBLE.

“No degree of alarm or agitation will, of itself, render confessions made during its existence inadmissible.” The court, in Venable’s Case, 24 Gratt. 613, citing Smith’s Case, 10 Gratt. 734, as a striking instance of this fact.

C.PERSONS IN AUTHORITY-DEFINED.

Persons in authority, "within the meaning of the rule, are such as are engaged or concerned in the apprehension, prosecution or examination of the accused. Smith’s Case, 10 Gratt. 743, approved in Thompson’s Case, 20 Gratt. 730; Early’s Case, 86 Va. 928, 11 S. E. Rep. 795.

i. Instances. — A person committed on a charge of larceny by a justice, is sent in charge of a special constable and the prosecutor to jail, and on the way this constable says to him, “you had as well tell all about it.” After they had rode about a mile after this remark, without any other remark being addressed to the prisoner, he voluntarily says to the prosecutor, “I will tell you all about it; ” and proceeds to tell how and by whom the breaking and larceny was committed. The constable was one in authority over him; and the statement is not admissible in evidence. Vaughan v. The Commonwealth, 17 Gratt. 576.

A young man living in the jailor’s family, and who occasionally, in the absence of the jailor, attended the prisoners and kept the keys of the jail, is not a person in authority, whose threat or promise will exclude a confession made in jail by the prisoner awaiting trial. Shifflet’s Case, 14 Gratt. 652.

A person to whom a free negro is bound as apprentice, though a justice of the peace, if not acting as such, and no way affected by the offence, is not a person in authority in the sense of the rule which excludes confessions made to persons in authority. Smith’s Case, 10 Gratt. 734.

a. Master or Mistress Such Person — When.—-It is only where the offence concerns the master or mistress that their holding out threats or promises to the prisoner, will render his confession inadmissible. Otherwise the confession will be admitted. Smith's Case, 10 Gratt. 746.

3. Private Detective Not Such Person. — A private detective, employed to work up the case, is not such a person as comes under the rule of persons in authority. Early's Case, 86 Va. 921, 11 S. E. Rep. 795.

D.WHOLE CONFESSION MUST BE GIVEN.

If the commonwealth uses the accused’s statement against him, they must give such statement as a whole, and not select parts for the jury and omit the rest. Parrish v. Commonwealth, 81 Va. 1.

1. Jury May Disregard Part. — Where the confession of a prisoner is given in evidence, the whole must go to the jury; hut the whole is not necessarily to he taken as true; on the contrary, if; from opposing evidence or the confession itself, facts appear which are sufficient to satisfy a rational mind that a partis not true, it ought to he disregarded. Brown v. Commonwealth, 9 Leigh 633.

E.THE GENERAL RULE AS TO REPEATED CONFESSIONS — ALTHOUGH FIRST INADMISSIBLE, SECOND MAY BE ADMISSIBLE.

“The court is further of opinion, that though a confession may he inadmissible because not voluntary, it may become admissible by being subsequently repeated by the accused, when his mind is perfectly, free from the undue influence which induced the original confession, Prima facie, the undue influence will be considered as continuing; though the presumption may be repelled by evidence, which, however, must be strong and clear. The rule on this subject has been well stated to be, ‘that, although an original confession may have been obtained by improper means, yet subsequent confessions of the same or like facts may be admitted, if the court believes, from the length of time intervening, or from proper warning of the consequences of confession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled. In the absence of any such circumstances, the influence of the motives proved to have been offered, will be presumed to continue, and to have produced the confession, unless the contrary is shown by clear evidence, and the confession will therefore be rejected.’ 2 Russ, on Crimes 838; Greenl. Ev. 257; and cases cited. It follows that the burden of showing the contrary devolves on the commonwealth, as the condition on which the confession will be admissible.” The court, in Thompson’s Case, 20 Gratt. 731, approved in Venable’s Case, 24 Gratt. 639. See also, Mitchell’s Case, 33 Gratt. 845.

1. Instances. — If a threat be made or apromiseheld out, to a person in custody on a charge of felony, to induce him to make confession, and he denies his guilt at the time, but afterwards makes a confession, which appears, from the time arid circumstances, not to have been induced by such previous threat or promise, this confession, so afterwards made, is a voluntary one, and proper evidence against him on his trial. Moore v. Commonwealth, 2 Leigh 701.

Prisoner charged with murder, makes a confession to a police officer on the morning of the day he is examined by the police justice. Before that examination he has employed counsel, and he is warned, both by his counsel and the police justice, against making any statement or confession. Being committed by the justice, on getting to the jail he appears to be very much frightened and agitated; and upon getting there he makes a confession, and again on the same day confesses the deed to a woman of his acquaintance who is in the j ail. Though the confession to the police officer was properly excluded, the confessions made after the warning given him are proper evidence. Venable v. Commonwealth, 24 Gratt. 639.

F. COHMONWEALTH MUST SHOW CONFESSION TO BE VOLUNTARY-CONDITION PRECEDENT.

Says the court, in Thompson’s Case, 20 Gratt. 731, "That the confession is voluntary, being therefore a condition precedent of its admissibility, and the duty of deciding on its admissibility being a duty which devolves on the court, it follows, necessarily, that the court must be satisfied that the confession was voluntary, before it can be permitted to go before the jury; in other words, that the burden of proof that it was voluntary, devolves on the commonwealth.”

G. CONFESSION INADHISSIBLE UNTIL CORPUS DELICTI PROVEN.

Until there is clear proof of the death of the person for whose murder the prisoner is accused, the admissions of the prisoner as to his having committed the act must be clear and explicit. If there is any doubt as to his meaning, he ought not to be convicted. Smith v. Commonwealth, 21 Gratt. 809.

H. CONFESSIONS OF ACCOHPLICE INADHISSIBLE.

Confessions or admissions of an accomplice in a felony, made after the commission and completion of the offence, are not competent evidence against the prisoner, even though a previous conspiracy and combination between the prisoner and the accomplice to commit the felony has been proved. Hunter v. Commonwealth, 7 Gratt. 641.

I.CONFESSIONS OBTAINED BY FRAUD.

Por an instance of a confession procured by a fraud being practiced on accused, see Page’s Case, 27 Gratt. 954.

K. ACCUSED NOT ALLOWED TO PROVE HIS OWN DECLARATIONS.

The accused is not allowed to prove his own declarations to the end of his own exculpation. Sprouse v. Commonwealth, 81 Va. 374.

i. Instances. — On the trial of a criminal cause, a witness for the commonwealth proves, that having, in a conversation with the accused, expressed his entire conviction of a particular fact, the accused admitted the fact (which, in its nature, strongly tends to establish his guilt) but made an explanatory statement (which, if taken as true, will exculpate him). The accused then offers to prove, that he had previously, and under different circumstances, made the same declaration to another person. Ifeld, such evidence is inadmissible. Earhart v. Commonwealth, 9 Leigh 671.

If a prisoner, in speaking of the testimony of a witness who had testified against him, says “that what W. said was true as far as he went, but that he did not say all or enough”; this is not admissible as a confession of the prisoner; nor does it lay any foundation for proving to the jury what W- did swear to. Finn v. Commonwealth, 5 Rand. 701.

At the examination of the prisoner by the mayor, the prisoner reluctantly at the mayor’s request, wrote the name he was suspected of having forged; in doing so he made the same mistake in spelling the name, as appeared on the forged instrument. Held, this fact was properly admitted to the jury. Sprouse v. Commonwealth, 81 Va. 374.

L. WEIGHT AND DEGREE OF CREDIT TO BE GIVEN CONFESSIONS.

Perhaps no general proposition can "be predicated concerning the -weight and degree of credit to he given to a confession; because this must depend in every case upon the age, character and mental capacity of the party, and the share of education which he has enjoyed, and all surrounding circumstances which attended it. And this seems to be the opinion of a learned writer on the law of evidence. 1 Greenl. Ev. §215; Smith’s Case, 10 Gratt. 737.

H. ALTHOUGH CONFESSION INADMISSIBLE FACTS DISCLOSED BY IT MAY BE PROVED.

Facts disclosed or discoveries madein consequence of statements made by accused, may be given in evidence, although the confession, by which such facts were disclosed, or discoveries made, is inadmissible. on account of being improperly extorted from the prisoner. State v. Douglass, 20 W. Va. 770.

N. ADMISSIBILITY OF CONFESSIONS A QUESTION FOR THE COURT.

It is therefore declared as the condition of the admissibility of a confession, that it be free and voluntary, and not made under the influence of such a bias upon the mind of the party as will in the judgment of the law, disturb the free exercise of volition, and destroy the presumption that the confession so made is true; and this, the judge and not the jury, is to determine. Smith’s Case, 10 Gratt. 737.

O. CREDIT TO BE GIVEN CONFESSIONS A QUESTION FOR THE JURY.

The weight and degree of credit to be given a confession is a question for the jury. Smith’s Case, 10 Gratt. 739; Brown’s Case, 9 Leigh 633.  