20180104

CONFESSION

    4.1.18  

CONFESSION, crim. law, evidence. The voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation which he had in the same.
2. When made without bias or improper influence, confessions are admissible in evidence, as the highest and most satisfactory proof: because it is fairly presumed that no man would make such a confession against himself, if the facts confessed were not true but they are excluded, if liable to the of having been unfairly obtained.
3. Confessions should be received with great caution, as they are liable to many objections. There is danger of error from the misapprehension of witnesses, the misuse of words, the failure of a party to express his own meaning, the prisoner being oppressed by his unfortunate situation, and influenced by hope, fear, and sometimes a worse motive, to male an untrue confession. See the case of the two Boorns in Greenl. Ev . 214, note 1; North American Review, vol. 10, p. 418; 6 Carr. & P. 451; Joy on Confess. s. 14, p. 100; and see1 Chit. Cr. Law, 85.
4. A confession must be made voluntarily, by the party himself, to another person. 1. It must be voluntary. A confession, forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape, when it is to be considered as evidence of guilt, that Lo credit ought to be given to it. 1 Leach, 263. This is the principle, but what amounts to a promise or a threat, is not so easily defined. Vide 2 East, P. C. 659; 2 Russ. on Cr. 644 4 Carr. & Payne, 387; S. C. 19 Eng. Com. L. Rep. 434; 1 Southard, R. 231 1 Wend. R. 625; 6 Wend. R. 268 5 Halst. R. 163 Mina's Trial, 10; 5 Rogers' Rec. 177 2 Overton, R. 86 1 Hayw. (N. C.) R, 482; 1 Carr. & Marsh. 584. But it must be observed that a confession will be considered as voluntarily made, although it was made after a promise of favor or threat of punishment, by a person not in authority, over the prisoner. If, however, a person having such authority over him be present at the time, and he express no dissent, evidence of such confession cannot be given. 8 Car. & Payne, 733.
5. - 2. The confession must be made by the party to be affected by it. It is evidence only against him. In case of a conspiracy, the acts of one conspirator are the acts of all, while active in the progress of the conspiracy, but after it is over, the confession of one as to the part he and others took in the crime, is not evidence against any but himself. Phil. Ev. 76, 77; 2 Russ. on Cr. 653.
6. - 3. The confession must be to another person. It may be made to a private individual, or under examination before a magistrate. The whole of the confession must be taken, together with whatever conversation took place at the time of the confession. Roscoe's Ev. N. P. 36; 1 Dall. R. 240 Id. 392; 3 Halst. 27 5 .2 Penna. R. 27; 1 Rogers' Rec. 66; 3 Wheeler's C. C. 533; 2 Bailey's R. 569; 5 Rand. R. 701.
7. Confession, in another sense, is where a prisoner being arraigned for an offence, confesses or admits the crmie with which he is charged, whereupon the plea of guilty is entered. Com Dig. Indictment, K; Id. Justices, W 3; Arch. Cr. Pl. 1 2 1; Harr. Dig. b. t.; 20 Am. Jur. 68; Joy on Confession.
8. Confessions are classed into judicial and extra judicial. Judicial confessions are those made before a magistrate, or in court, in the due course of legal proceedings; when made freely by the party, and with a full and perfect knowledge of their nature and consequences, they are sufficient to found a conviction. These confessions are such as are authorized by a statute, as to take a preliminary examination in writing; or they are by putting in the plea of guilty to an indictment. Extra judicial confessions are those wbich are made by the part elsewhere than before a magistrate or in open court. 1 Greenl. Ev. 216. See, generally, 3 Bouv. Inst. n. 3081-2.
CONFESSIONS AND AVOIDANCE, pleadings. Pleas in confession and avoidance are those which admit the averments in the plaintiff Is declaration to be true, and allege new facts which obviate and repel their legal effects.
2. These pleas are to be considered, first, with respect to their division. Of pleas in confession and avoidance, some are distinguished (in reference to their subjectmatter) as pleas in justification or excuse, others as pleas in discharge. Com. Dig. Pleader, 3 M 12. The pleas of the former class, show some justification or excuse of the matter charged in the declaration; of the latter, some discharge or release of that matter. The effect of the former, therefore, is to show that the plaintiff never had any right of action, because the act charged was lawful; the effect of the latter, to show that though he had once a right of action, it is discharged or released by some matter subsequent. Of those in justification or excuse, the plea of son assault demesne is an example; of those in discharge, a release. This division applies to pleas only; for replications and other subsequent pleadings in confession and avoidance, are not subject to such Classification;
3. Secondly, they are to be considered in respect to their form. As to their form, the reader is referred to Stephens on Pleading, 72, 79, where forms are given. In common with all pleadings whatever, which do not tender issue, they always conclude with a verification and prayer of judgment.
4. Thirdly, with respect to the quality of these pleadings, it is a rule that every pleading by way of confession and avoidance must give color. (q. v.) And see, generally, 1 Chit. Pl. 599; 2 Chit. Pl, 644; Co. Litt. 282, b; Arch. Civ. Pl. 215; Dane's Ab. Index, ii. t.; 3 Bouv. Inst. n. 2921, 293 1.
CONFESSOR, evid. A priest of some Christian sect, who receives an account of the sins of his people, and undertakes to give them absolution of their sins.
2. The general rule on the subject of giving evidence of confidential communications is, that the privilege is confined to counsel, solicitors, and attorneys, and the interpreter between the counsel and the client. Vide Confidential Communications. Contrary to this general rule, it has been decided in New York, that a priest of the Roman Catholic denomination could not be compelled to divulge secrets which he had received in auricular confession. 2 City Hall Rec. 80, n.; Joy on Conf. 4, p. 49. See Bouv. Inst. n. 3174 and note.

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