VIRGINIA,

June, 1824.

The attorney for the commonwealth objected to the reception of these pleas, "because the matters therein alCom'wealth leged can neither be pleaded, nor given in evidence on the John Morris, general issue."

V.

Whereupon the court ordered "the question arising on the said objection to be adjourned to the General Court, and requested the decision of the following points, viz:"

"1st. Whether the defendant to an indictment or information for a libel can, in all cases, plead the truth of the libel in justification?

"2d. If not, whether he can give the truth of such libel in evidence, on the plea of not guilty.

"3d. Whether in this particular case the defendant can in either way, and which, give evidence of the truth of the matters stated in the writing alleged to be libellous."

At a general court, June 12, 1811, present, Judges Nelson, White, Holmes, Brockenbrough, Johnson, Carr and Smith, the following opinion was given: "It is the unanimous opinion of the Court, that by the common law, truth is no justification of a libel, and cannot as such be given in evidence on an indictment or information for the offence. In this commonwealth, the second article of the bill of rights having declared, "that all power is vested in, and consequently derived from the people, that magistrates are their trustees and servants, and at all times amenable to them. It follows as a necessary consequence that the people have a right to be informed of the conduct and character of their public agents. In the case of an indictment or information for a libel against public officers, or candidates for public office, truth is a

V.

John Morris

justification, and may be given in evidence as such un- VIRGINIA, June, 1824. der the general issue, and this forms an exception to the general rule, and established by the common law, but even Com'wealth in such case any libellous matter which does not tend to show that the person libelled is unfit for the office, cannot be justified because it is true. In case of individuals who are neither officers nor candidates for office, truth is no justification of a libel, but in all such cases it may be given in evidence in mitigation of the fine. In the case now before the court, the truth may be given in evidence in justification, it being lawful for a petitioner to state to the legislature the facts set forth in the petition, charged in this case as a libel. In no case is it necessary or proper, that the defendant, against whom there is an indictment or information for a libel should plead the truth.

Present-Hon. Wm. W. Van Ness.

Richard Riker, Esq. District Attorney, for the people.

A confess

ion induced

Doctor Graham and Thomas Addis Emmet, Esqrs., by saying “if

for the prisoner.

you do not tell all you about

On Saturday came on the trial of Eleanor Rankin, a know negro girl, for poisoning her mistress, Margaret Smith, the the business wife of Wm. H. Smith, of this city.

you will be
the
put in
dark room

It appeared by the testimony of Mr. Smith and his and hanged," daughter, that some ratsbane had been procured by Mrs. cannot be giSmith, about the 20th of August last, for the purpose of dence.

ven in evi

Jan. 1807.

The People more.

V.

Rankin.

'W YORK, killing rats, and had been mixed with some meal. The prisoner was supposed afterwards to have purchased some It was placed in the garret where the prisoner slept. Three or four days afterwards the coffee was so disagreeable that the family could not drink it, and it was thrown away. On the morning of the 27th they breakfasted between 8 and 9, and at 11 o'clock Mr. Smith was taken very sick. He came home at 12, and found his wife and daughter unwell.

They were all exceedingly sick at their stomachs, and sent for Doctor Onderdonk. They were confined 10 or 12 days, when all of them were recovering. On the 14th of September, they were all taken sick again in the same manner, and Mrs. Smith died in about four days. There was no other servant in the family. All the family, except the prisoner, were sick both times, aud the same symptoms took place in both cases.

Dr. Onderdonk and Dr. Post were examined. They both described the effects of arsenic when taken in the stomach, and they expressed an unequivocal opinion that Mrs. Smith was killed by poisoning with arsenic.

It appeared also that the prisoner was a very subtle, perverse girl, and that on being taken to Bridewell the day before her trial she acknowledged her guilt.

The district attorney then offered the confession of the prisoner, as taken regularly by the public clerk. Mr. O'Blenis proved that it was taken with great care and accuracy, and was perfectly voluntary. It contained, as was stated in court, a full and circumstantial account of the means taken by the prisoner to poison the family, and which agreed, in every essential point, with the facts disclosed by Mr. and Miss Smith.

Here the counsel for the prisoner interposed, and produced Ab. Curtis, one of the marshals, to prove that

Jan. 1807.

the written confession, taken by the police clerk, had N'W YORK, been made in consequence of threats used by himself in bringing her to the office. Curtis swore that he had said The People "if you do not tell all you know about the business, you will be put in the dark room and hanged."

By the Court. The confession of a prisoner must be free and voluntary, or it cannot be given in evidence upon his trial. In the case now before the court, it appears the officer who made the arrest, and then had the prisoner in his custody, said to her "if you do not tell all you know about the business, you will be put in the dark room and hanged." This was such a threat as might, and probably did induce a fear and apprehension of her life, and is such a threat as, in the opinion of the Court, destroys the legality of the subsequent examination. A confession upon an official examination, or to other persons, if obtained under the impression of hope or fear, cannot be admitted in evidence, however slight those impressions may be.

The prisoner was acquitted.

NOTE-A confession, induced by saying "unless you give us a more satisfactory account, I will take you before a magistrate," will not be received. It amounts to a threat. Rex. v. Thompson, Leach's C. L. 325. So a confession made in consequence of these words: "I am in great distress about my irons, tell me where they are, and I will be favourable to you," will not be admitted, Leach, 328.

It is not necessary to invalidate the confession, that the threat or promise should be made by the magistrate who takes the examination, they may be made by the officer who makes the arrest, or by any private person who has the control for the time being of the prisoner. McNally's Ev. p. 29.

(It ought perhaps to be remarked in this place, that the greatest care and caution should be observed by officers and others who arrest and have the care of persons charged with felony, that they do not hold out any pro

Rankin.

Jan. 1807.

V.

Rankin.

N'W YORK, mises, or offer any threats, to induce them to make a confession of the crime of which they are charged. The exThe People amination, as has been observed before, must be free and voluntary any improper threat, promise or representation by the magistrate, or other person who has the control of the prisoner, will vitiate the examination, however slight it may be, because it is impossible to say whether a confession, induced by these means, is not made rather from a motive of fear or interest, than from a sense of guilt. (See vol. 1. tit. Confession.)

Mr. Capal Loft, the learned editor and amplifier of the last edition of "Gilbert's Law of Evidence," in his reading upon the authorities cited from Hale, gives a caution worthy the attention of the minor magistrates. It appears, therefore, says Mr. Loft, that if any of the requisite circumstances are wanting in this species of proof (confession) it will be rejected; and on the last circuit Sir George Nares even went farther; he, though sinking under his illness, exerted his accustomed vigilance and benevolence in the case where the admissibility of a confession in writing was rendered doubtful, by circumstances, at the time of making it. If practicable, it may seem always best, where the confession of the prisoner is taken, that it may be in the presence of one or more indifferent persons unconnected with the prosecutor, the magistrate or prisoner, at least the two former, and that it may be provable to have been deliberately and freely made. Gilb. Ev. by Loft, p. 216.)