covery was made conformably to the information given by the prisoner. The statement as to his knowledge of the place where the property or other evidence was to be found, being thus confirmed by the fact, is proved to be true, and not to have been fabricated in consequence of any inducement. It is competent, therefore, to inquire whether the prisoner stated that the thing would be found by searching a particular place, and to prove that it was accordingly so found; but it would not be competent to inquire whether he confessed that he had concealed it there.1 This limitation of the rule was distinctly laid down by Lord Eldon, who said that where the knowledge of any fact was obtained from a prisoner, under such a promise as excluded the confession itself from being given in evidence, he should direct an acquittal, unless the fact itself proved would have been sufficient to warrant a conviction without any confession leading to it.2

§ 232. Acts of the prisoner. If the prisoner himself produces the goods stolen, and delivers them up to the prosecutor, notwithstanding it may appear that this was done upon inducements to confess, held out by the latter, there seems no reason to reject the declarations of the prisoner, contemporaneous with the act of delivery, and explanatory of its character and design, though they may amount to a confession of guilt; but whatever he may have said at the same time, not qualifying or explaining the act of delivery, is to be rejected. And if, in consequence of the confession of the prisoner, thus improperly induced, and of the information by him given, the search for the property or person in question proves wholly ineffectual, no proof of either will be received. The confession is excluded, because, being made under the influence of a promise, it cannot be relied upon; and the acts and information of the prisoner, under the same influence, not being confirmed by the finding of the property or person, are open to the same objection. The influence which may produce a groundless confession may also produce groundless conduct.*

§ 233. Confessions of others. As to the prisoner's liability to be affected by the confessions of others, it may be remarked, in gen

11 Phil. Evid. 411; Warickshall's case, 1 Leach's Cr. Cas. 298; Mosey's case, Id. 301, n.; Commonwealth v. Knapp, 9 Pick. 496, 511; Reg. v. Gould, 9 C. & P. 364; Rex v. Harris, 1 Mood. Cr. Cas. 338.

2 2 East, P. C. 657; Harvey's case, Id.

658; Lockhart's case, 1 Leach's Cr. Cas. 430.

3 Rex v. Griffin, Russ. & Ry. 151; Rex v. Jones, Id. 152.

4 Rex v. Jenkins, Russ. & Ry. 492; Reg. v. Hearn, 1 Car. & Marsh. 109.

eral, that the principle of the law in civil and criminal cases is the same. In civil cases, as we have already seen,1 when once the fact of agency or partnership is established, every act and declaration of one, in furtherance of the common business, and until its completion, is deemed the act of all. And so, in cases of conspiracy, riot, or other crime, perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator or accomplice, in the prosecution of the enterprise, is considered the act of all, and is evidence against all. Each is deemed to assent to, or command, what is done by any other, in furtherance of the common object. Thus, in an indictment against the owner of a ship, for violation of the statutes against the slave-trade, testimony of the declarations of the master, being part of the res gesta, connected with acts in furtherance of the voyage, and within the scope of his authority, as an agent of the owner, in the conduct of the guilty enterprise, is admissible against the owner. But after the common enterprise is at an end, whether by accomplishment or abandonment is not material, no one is permitted, by any subsequent act or declaration of his own, to affect the others. His confession, therefore, subsequently made, even though by the plea of guilty, is not admissible in evidence, as such, against any but himself. If it were made in the presence of another, and addressed to him, it might, in certain circumstances, be receivable, on the ground of assent or implied admission. In fine, the declarations of a conspirator or accomplice are receivable against his fellows only when they are either in themselves acts, or accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.

1 Supra, §§ 112-114, 174, 176, 177. 2 So is the Roman law. "Confessio unius non probat in præjudicium alterius; quia alias esset in manu confitentis dicere quod vellet, et sic jus alteri quæsitum auferre, quando omnino jure prohibent; -etiamsi talis confitens esset omni exceptione major. Sed limitabis, quando inter partes convenit parere confessioni et dicto unius alterius." Mascard. De Probat. Concl. 486, vol. i. p. 409.

& Per Story, J., in United States v. Gooding, 12 Wheat. 469. And see supra, § 111, and cases there cited. The American Fur Company v. The United States, 2 Peters, 358; Commonwealth v. Eberle

et al., 3 S. & R. 9; Wilbur v. Strickland, 1 Rawle, 458; Reitenback v. Reitenback, Id. 362; 2 Stark. Evid. 232-237; The State v. Soper, 4 Shepl. 293.

4 United States v. Gooding, 12 Wheat. 460.

5 Rex v. Turner, 1 Mood. Cr. Cas. 847; Rex v. Appleby, 3 Stark. 33. And see Melen v. Andrews, 1 M. & M. 336, per Parke, J.; Reg. v. Hinks, 1 Den. Cr. Cas. 84; 1 Phil. Evid. 199 (9th ed.); Reg. v. Blake, 6 Ad. & El. N. s. 126. [Nor is the flight of one conspirator evidence of guilt against another. People Stanley, 47 Cal. 112.]

v.

61 Phil. on Evid. 414; 4 Hawk. P. C.

§ 234. Agency. The same principle prevails in cases of agency. In general, no person is answerable criminally for the acts of his servants or agents, whether he be the prosecutor or the accused, unless a criminal design is brought home to him. The act of the agent or servant may be shown in evidence as proof that such an act was so done; for a fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence; but it is a totally different question, in the consideration of criminal as distinguished from civil justice, how the principal may be affected by the fact, when so established. Where it was proposed to show that an agent of the prosecutor, not called as a witness, offered a bribe to a witness, who also was not called, the evidence was held inadmissible; though the general doctrine, as above stated, was recognized.2

§ 235. Treason. It was formerly doubted whether the confession of the prisoner, indicted for high treason, could be received in evidence, unless it were made upon his arraignment, in open court, and in answer to the indictment; the statutes on this subject requiring the testimony of two witnesses to some overt act of treason. But it was afterwards settled, and it is now agreed, that though, by those statutes, no confession could operate conclusively, and without other proof, to convict the party of treason, unless it were judicially made in open court upon the arraignment, yet that, in all cases, the confession of a criminal might be

b. 2, c. 46, § 34; Tong's case, Sir J. Kelyng's R. 18, 5th Res. In a case of piracy, where the persons who made the confessions were not identified, but the evidence was only that some did confess, it was held that, though such confessions could not be applied to any one of the prisoners, as proof of his personal guilt, yet the jury might consider them, so far as they went, to identify the piratical vessel. United States v. Gibert, 2 Sumn. 16 [State v. Thibeau, 30 Vt. 100].

1 Lord Melville's case, 29 Howell's St. Tr. 764; The Queen's case, 2 B. & B. 806, 307; supra, § 170.

2 The Queen's case, 2 B. & B. 302, 306-309. To the rule, thus generally laid down, there is an apparent exception, in the case of the proprietor of a newspaper, who is, prima facie, criminally responsible for any libel it contains, though inserted by his agent or servant without his knowledge. But Lord Tenterden considered this case as falling strictly within the principle of the rule; for "surely," said he, a person who derives profit

from, and who furnishes means for carrying on, the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, though you cannot show that he was individually concerned in the particular publication." Rex v. Gutch, 1a M. & M. 433, 437. See also Story on Agency, §§ 452, 453, 455; Rex v. Álmon, 5 Burr. 2686; Rex v. Walter, 3 Esp. 21; Southwick . Stephens, 10 Johns. 443.

3 Foster's Disc. 1, § 8, pp. 232-244; 1 East's P. C. 131-133. Under the Stat. 1 Ed. VI. c. 12, and 5 Ed. VI. c. 11, requiring two witnesses to convict of treason, it has been held sufficient if one wit ness prove one overt act, and another prove another, if both acts conduce to the perpetration of the same species of treason charged upon the prisoner. Lord Stafford's case, T. Raym. 407; 3 St. Tr. 204, 205; 1 East's P. Č. 129; 1 Burr's Trial, 196.

given in evidence against him; and that in cases of treason, if such confession be proved by two witnesses, it is proper evidence to be left to a jury.1 And, in regard to collateral facts which do not conduce to the proof of any overt acts of treason, they may be proved as at common law by any evidence competent in other criminal cases.2

1 Francia's case, 1 East's P. C. 133135.

2 Smith's case, Fost. Disc. p. 242; 1 East's P. C. 130. See infra, §§ 254, 255.

CHAPTER XIII.

OF EVIDENCE EXCLUDED FROM PUBLIC POLICY.

§ 236. Kinds excluded. There are some kinds of evidence which the law excludes, or dispenses with, on grounds of public policy; because greater mischiefs would properly result from requiring or permitting its admission, than from wholly rejecting it. The principle of this rule of the law has respect, in some cases, to the person testifying, and in others to the matters concerning which he is interrogated, thus including the case of the party himself, and that of the husband or wife of the party on the one hand, and, on the other, the subject of professional communications, awards, secrets of state, and some others. The two former of these belong more properly to the head of the Competency of Witnesses, under which they will accordingly be hereafter treated.1 The latter we shall now proceed briefly to consider.

§ 237. Professional communications. And, in the first place, in regard to professional communications, the reason of public policy, which excludes them, applies solely, as we shall presently show, to those between a client and his legal adviser; and the rule is clear and well settled, that the confidential counsellor, solicitor, or attorney, of the party, cannot be compelled to disclose papers delivered, or communications made to him, or letters or entries made by him, in that capacity.2 "This protection," said Lord

1 [Infra], §§ 326-429.

2 In Greenough v. Gaskell, 1 My. & K. 101. In this decision, the Lord Chancellor was assisted by consultation with Lord Lyndhurst, Tindal, C. J., and Parke, J., 4 B. & Ad. 876. And it is mentioned, as one in which all the authorities have been reviewed, in 2 M. & W. 100, per Lord Abinger, and is cited in Russell v. Jackson, 15 Jur. 1117, as settling the law on this subject. See, also, 16 Jur. 30, 41-43, where the cases on this subject are reviewed. The earliest reported case on this subject is that of Berd v. Lovelace, 19 Eliz., in chancery, Cary's R. 88. See also Austen v. Vesey,

Id. 89; Kelway v. Kelway, Id. 127; Dennis v. Codrington, Id. 143; all which are stated at large by Mr. Metcalf, in his notes to 2 Stark. Evid. 395 (1st Am. ed.). See also 12 Vin. Abr. Evid. B, a; Wilson v. Rastall, 4 T. R. 753; Rex v. Withers, 2 Campb. 578; Wilson v. Troup, 7 Johns. Ch. 25; 2 Cowen, 195; Mills v. Oddy, 6 C. & P. 728; Anon., 8 Mass. 370; Walker v. Wildman, 6 Madd. 47; Story's Eq. Pl. 458-461; Jackson v. Burtis, 14 Johns. 391; Foster v. Hall, 12 Pick. 89; Chirac v. Reinicker, 11 Wheat. 295; Rex v. Shaw, 6 C. & P. 372; Granger v. Warrington, 3 Gilm. 299; Wheeler v. Hill, 4 Shepl. 329.