Regina
v. Edmund Garbett.
Crown
Cases
Original Eng. Rep. version, PDF
Original
Citation: (1847) 1 Den 236
English
Reports Citation: 169 E.R. 227
1847.
S. C. 2
Car. & Kir. 474; 13; 13 J. P 602, 2 Cox C C 448 Considered, Short v
Mercier, 1851, 3 Mac. & G. 205; R. v Coote, 1873, L R 4 P C 599. Approved.
King of Two Swilies v. Willcox, 1851, 1 Sim. N. S. 301. Referred to, R. v.
Bickerton, 1847, 11 J. P. 664; R. v. Darby, 1847, 2 Cox C. C 316; Fisher v
Ronalds, 1851, 12 C. B. 762, Volant v. Soyer, 1853, 13 C B. 231; Philps v.
Prew, 1854, 23 L. J. Q. B. 140, Osborn v. London 'Doch Co., 1855, 10 Ex. 698;
R. v. Scott, 1856, 7 Cox C C 164; Bickford v. Darcy, 1866, L R 1 Ex. 354; R. v.
Robinson, 1867, 36 L. J. M. C. 78; R. v. Buttle, 1870, 22 L. T. 728; R. v.
noel, [1914] 3 K. B. 848
[236] CENTRAL
CRIMINAL COURT, 1847.
Regina
v. Edmund Garbett.
(1. If a witness claims the protection of the Court on the
ground that the answer would tend to criminate himself, and there appears
reasonable ground to believe that it would do so, he is not compellable to
answer 2 If compelled not¡withstanding, what he says after such claim must be
considered to have been obtained by compulsion, and cannot be given in evidence
against him. 3 He is entitled to protection at whatever stage of the inquiry he
chooses to claim it; and he is equally entitled to protection, whether he has
already answered the question in part, or not at all )
The prisoner was tried and convicted before Mr. Baron
Aldersou, at the Old Bailey Sessions, in May, 1847, ol the crime of forging the
acceptance of William Booth to a bill of exchange
228 REGINA V. EDMUND
GABBETT 1 DEN. 237.
In the course of the trial Mr Martin for the prosecution
proposed to give in evidence the examination of the prisoner on the trial of
the civil action of Blagden v. Booth at the last Kingston Assizes The bill
stated in the declaration in that suit was drawn by the prisoner upon William
Booth, Priors Lee, near Oakin Gate, Salop, payable three months after date to
the drawer's order and purported to be accepted as follows -" Accepted,
payable at Masterman and Co.'s, London. William Booth."
The prisoner was called as a witness for the defendant. Hus
examination in chief was as follows '-This is uiy signature to the bill as
drawer. The bill is made payable to my order. The acceptance was on it when I
handed it to Mr. Phillips (the second indorser).
Then the cross-examination was as follows -
The stamp was never out of my possession till it was handed
to Mr Phillips
Had you Mr
Booth's authority to accept it ? I had not
Where did you get the stamp ? T purchased it at a shop in
London, and from that time the stamp has never been out of my possession I
never received a penny for it.
[237] Never mind what you received for it,-when was the
" William Booth " put upon it ? Between the Friday and the Sunday
What Friday and what Sunday ? I believe it was between the
last Friday and the last Sunday in November.
After the 21st ? Certainly after the 21st
After the 21st of November, 1846 1/2 Certainly.
Did you communicate with Mr Booth on the subject 'l Not in any way.
Have you never done so ? Yes, I believe last Saturday week I saw Mr Booth
Lord Denman.-Was that the first time ? The first tune, my Lord
Mr. Chambers. Why ' did he not write you a letter ? Never, I
never heard of his writing me a letter until I came into this Court by accident
Until you came by accident,-what do you mean ? I came into
Court in pur¡suance of a subpoana served three hours ago.
Who served you three hours ago ? A gentleman
Where were you three hours ago ? At my office in King
William Street, in the City
Who is the man,-do you know him ? I do not, but I believe he
is clerk to Mr. Stuart.
Where is your office do you bay 'l My place of business is in King William Street
What are you '? An attorney and solicitor
[238] Did you. know what you came here to prove ? I did not
until I came into the box.
Do you know what you are attempting to prove '' I do
Do you mean to aay it is a forgery ? It is not his handwriting.
Not in his handwriting. Who accepted it then ? I am in the
hands of the Court.
Lord Denman -It must be answered
The Witness.-I state, my Lord, that I filled the bill up at
Mr Phillips's request in his own drawing-room, and handed it to him, and have
never received a penny for it
Mr. Chambers. I ask you who did that ? (pointing to the
bill) Not Mr.
Booth.
Did Mr. Phillips 1 No.
Who was present when the bill was filled up ? Mr. Phillips alone
Wrere there only you two present ? Mr Phillips was not
present when '' William Booth " was written. William Booth had been
written before I filled it up in Mr, Phillips' drawing-room.
Who was present when " W'llhain Booth " was
written ? I won't say-only myself.
Was any one else ? I cannot say.
I ask you to tell me whether any other person was present
when ' William Booth " was written besides yourself ? I believe a clerk
What clerk ? That I decline to say.
[239] Mr. Chambers My Lord, I press the question
Lord Denman (To the witness).-That other person or you must
have written it. Precisely so.
I dei. 240. REGINA V. EDMUND QARBETT 229
You knew that when you uttered it ? When I handed it to Mr.
Phillips I did know it and Mr. Phillips knew it too
By Mr. Chambers. Who was the other person ? I ask the
question, and I submit, my Lard, it is a proper question.
Lord Denman.-It must be answered.
The Witness.-I decline to answer that.
Where was it " William Booth " was written ? I believe in King William
Street.
Try and recollect-was it in King William Street or where was
it, was it or not, you must know the fact ? Somewhere in London.
Is the signing of a bill of exchange a circumstance so
unimportant that you cannot tell whether it was in King William Street or Old
Broad Street ? It was either at one or the other. Some days I was at one place,
and some days at the other.
If it was in King William Street, where ia King William
Street ? No. 78 , it is used as an office for myself and others who were
transacting business with me
Is your name there ? No.
Who permitted you to use the office ? Messrs. Miller and M ,
attorniea.
Were you carrying on the business of an attorney ? I am
carrying on business as an attorney, and answering letters and correspondence,
and so on.
Have you seen Mr. Booth to-day ? I have not seen Mr. Booth
since Saturday week.
[240] WTiere did you see him ? He came with that young man
standing next to Mr. Stuart.
Is he one of hia clerks ? I believe not
When you saw Mr. Booth a week ago, did vou talk about this
bill of exchange to him ? Yes.
What did Mr. Booth say to you ? He said he had been served
with a writ and had been exceedingly angry about it I told him it was about the
bill, he said " you well know I never accepted it," and he said he
must go into other hands for protection.
Have you had any money transactions with Mr. Booth ? Not money transactions
No bills of exchange ? Never.
Where were you living in 1846 ? At Blackheath.
Are you now ? Yes.
Did Mr. Booth ever authorize you to accept any bills of
exchange for him ? Never.
Do you know whether he did any other person ? I do not.
Do you know whether he authorized any other person to write
hia name for him ? No.
When the signature " William Booth " was written,
was it copied from any¡thing ? No
Are you sure it was not ? That is my belief. I strongly believe it was not.
[241J Are you not certain it was not ? I am not.
Were you sitting down or standing up l Sitting down
How near was anybody to you ? On the other side of the desk.
Now, I insist on knowing the name of the party who did if? I
decline to answer the question.
You say you know nothing at all whether the party had
authority or not ? 1 believe he had not.
Were you and he the only persons in the room ? We were.
I ask again the name, and require you to give it me ? I decline to do it.
Lord Denman.-The question must be answered. I have not said
any other pergon was in the room but myself
Lord Denman.-Then we are to take it you did it
yourself. I decline to
answer it. Lord Denman.-You say the other man did not do it The other person was
as near to me as the learned counsel is.
Mr. Chambers. Did you not give this answer just now ?
"I don't know whether he authorized that person to write his name ? "
I said I had no authority.
Now, I ask you whether you know that the person who wrote it
had any authority to write it1/2 Eh '
Had the person who wrote " William Booth " any
authority ? Not to my knowledge.
[242] Had you any authority ? I had no authority.
230 REGLNA V. EDMUND GARBETT l DEN. 243.
Had the person who was in the room any authority ? He had
not, at least, I believe he had none.
Did he write it ? He did not.
Who is that other person ? That I decline to tell you.
But I must insist upon you telling me, Sir ? I am in the hands of the
Court.
lord Denman.-The question must he answered (The witness hesitated
)
Mr. Chambers. You say there was another person in the room
2 There was
Lord Denman.-What aged person was he ? He was a gentleman I
suppose between twenty and thirty.
Was it a person you knew ? Yes
Was it a man ? Yes
Have you seen him to-day 2 I have not.
When did you see him last ? Several weeks ago.
Do you know his name ? I do
What is it ? I decline to give it.
Was he one of your clerks ? He was
How many clerks had you ? Three.
[243] Give me their names ? Johnson, Goodall, and Humphrey.
Was Mr. Johnson present ? He was about the premises
Was he in the room 2 I should say he was not in the room.
Will you swear he was not in the room ? I won't swear he was not.
Was Humphrey in the room ? Humphrey was.
Were you and Humphrey there and nobody else ? I believe not,
he had been coming in and out.
Was Humphrey there when the words " William Booth
" were put upon the bill ? I cannot recollect
Did he do it ? He did not.
Did he see it put on ? He might have been noticing it being put on
What has become of Humphrey 2 I believe he is in Shropshire.
Do you know whether he is or not ? I do not know.
He was your clerk, you say ? He was.
Did you discharge him from your service ? I did not, but I
had no further occasion for his services.
You say you did not know whether the person who put on the
name had any authority ? There was another person in the room who might have
had.
Do you know the person who really put on the name "
William Booth " had any authority to put the name on ? Not to my
knowledge.
[244] Lord Denman.-You say, you know he had not. Why do you
know he had not ? Because, I state it was not the other person.
You say ifc was not,-had you any authority to do it ? I had not
Mr. Chambers. What' look at the acceptance (handing it to
the witness), was it in blank ? It was drawn in Mr. Phillips' drawing-room.
What I over the blank acceptance 1 Yes.
You say you have had the stamp ever since you bought it in
your, possession ? Yea.
Where did you buy the stamp ? I believe in Broad Street.
Attornies in London are in the habit of buying stamps very often.
You say the stamp was purchased in Broad Street ? I believe by myself.
Are you not certain it was bought on purpose to draw this
bill upon ? There were several stamps bought at the same time. I believe there
were two 3s. 6d., and three 2s. stamps bought at the same time.
Is it New Broad Street, or Old Broad Street ? Old Broad Street.
Was it a stationer's ] It was
Where ? On the left-hand side, nearly opposite the back door
of the Hall of Commerce.
Lord Denman.-I wish to know if the defendant said he wished
the matter settled, and that he had sent word to you to settle it, but not to
defend it and he expected you would pay the money as it was a matter of your
own. What could he allude to ?
[245] Any transactions between you and him 2 Yes, I had a
communication, not from him, but another party
1DEN. B4i. REGINA V. EDMUND GABBETT 231
Was that before it was done ? Since.
Alter he was served with a writ ? Yes.
It could not allude to anything that passed between you and
him after the note was written ? No.
Had you no transactions with him ? I was his solicitor up to that time.
Was he your creditor or debtor ? There was some money owing
from him I believe to me.
How much do you think it is ? The bill has not been made
out-I had a partner, there was some difference between us and we dissolved
partnership, but as to the amount, I know not.
You must have some notion ? Perhaps, my Lord, it might have
been 100 con¡nected with some mortgages,
Have you never told him you might possibly use his name on
some occasion ? Not to my knowledge. I don't recollect that I did.
Do you mean to say, upon your oath, you don't know whether
you ever told him or not that you might use his name, you might some time or
other have occasion ? I remember his asking me if I had done so.
When was that ? That was early in February.
He asked you if you had used his name ? He said, he had
heard reports of his name being used.
(246] What did you tell him ?
I told him it was true. He was very much annoyed and very angry.
Mr. Chambers for the prisoner objected to those parts of the
cross-examination being read, which followed the prisoner's declining to
answer, and applying to the Court for protection, and the decision of Lord
Denman that he must answer the questions.
The learned Baron received the evidence, but reserved the
point for further argument
The prisoner was convicted upon this and other evidence, and
the learned Baron reserved the judgment till the opinion of the Judges could be
obtained whether the evidence was properly received
On the 29th May, 1847, this case was argued before all the
Judges, except Parke B , Wightman J,, and Williams J Montagu Chambers, Q C ,
for the prisoner
The statement made by the prisoner, when examined as a
witness for the pro¡secutor (the defendant in the action), was not admissible
on the trial of the indict¡ment 1. It was given on oath 2 He should have been
cautioned when he appeared as a witness, that he was not bound to answer
questions, the answers to which might criminate, or tend to criminate himself.
3 When he objected to answer such questions, his privilege should have been
allowed " 4 The answers given, after his objections had been disallowed,
were not admissible in evidence.
First. There are many authorities to shew, that what a party
says as a witness, Under the compulsion of an oath, cannot be used against him
when charged as a criminal, 2 Russell on Crimes, 855, Greaves' ed., and notes,
where the cases are collected. Joy on Confessions, 62 ; R v Lewis, 6 C. &
P. 161 , R v Davies, ib. 177 ; Owen's case, 9 C. & P. 238 ; R v. Tubby, 5 C
& P 530 . R v. Haworth, 4 C .& P. [247] 254. But, even if this position
were doubtful, the maxim of the English law, that no man can be compelled to
accuse himself, and that if he do, his statement cannot be used against him on
a criminal charge-fully supports the other objections The general rule is, that
a witness is not bound to answer any questions in a Court of Law or Equity, if
his answer will expose him to a criminal punishment, or penal liabibty,
1 Starkie's Evid
191, 3rd ed ; and this rule holds good in the
Ecclesiastical Courts,
Swift v Swift, 4 Hagg. 154 ; Sckultes v. Hodgson, 1 Add 105, 110, and the Courts of
Bankruptcy, except where limited by statute, Bmcey's case,
Comb. 390 ; Ex parte
Kirby, 1 Mont. & Mac 212 ; Ex parte Cossens, Buck,
540. The rule is also
applicable,
not only to answers directly criminating, but to those which
have a tendency to
criminate, or form a link in the chain, or step in the
process, Cates v Hardacre, 3
Taunt 424 ,
R v Lord Geotqe Gordon, 2 Douglas, 592 , -R v O'Coigly, 26 Howell's
St Tr.
1351 ; Lord Macdesfield's
case, 16 How St Tr ] 146 ;
Clandge v Hoare,
14 Ves. 65, Paxton v Douglas, 16 Ves 239-243 ; 19 Ves 225 ,
Paikhurit v. Lowten,
2 Swanstan, 214 ; R v Klaney, 5 C. & P. 214. On the impeachment of Lord
Melville,
it waa debated, whether this right of refusal to answer did
not extend to cases of civil
232 REGINA V. EDMUND
GABBBTT 1 DEN. 248.
liability or debt, 6 Cobbett's Parl Deb 170, 222, 235, 246 ,
but the doubts then entertained were set at rest by stat 46 Geo III c 37 ,
which, however, admits and confirms the right of refusal to answer, where such
answer might have a tendency to expose the witness to a penalty or forfeiture
of any nature whatsoever
That such right has long existed and been maintained in the
Courts will probably be eonceded ; but many cases also shew that it is so far
regarded, that [248] even before the witness gives his testimony, or when
questions are put which might draw forth answers having a tendency to criminate
the party, Judges will interfere to caution or inform the witness of his
privilege. Thiifa, in Thomas RoheweU'b case, 10 Howell's St Tr 168-9, the Lord
Chief Justice Jeffreys and other Judges interposed to caution the witness,
stating that witnesses ought not to be asked, nor are they bound to answer any
questions " whereby they charge themselves with any crime, or may subject
themselves to any penalty " In Hir J. Ftiend\ case, 13 Howell's St Tr. 15,
the same course was pursued, the Judges interrupting the prisoner when he put
the question, whether the witness was a Roman Catholic, and stating that the
witness waa not obliged to answer it, as it might tend to accuse him of a crime
for which he might be prosecuted In fitevenson v .font's, Peake's Evid , 5th ed
p. 179, note, Park J interposed and prevented further questions from being put
to a witness, as " any further evidence would tend to criminate him as a
party to the writing, or publication of a libel." The like course was
taken in R v De Betenyet and others, Gurney's Short-Hand Report, 194, and by
Best J , in Dtxon v Vale and others, 1 C. & P. 27H In R v Wheatei, 2 Mood.
C C 45, the party was informed of his privilege and availed himself of it [n
Lord ('atdii/tin'ti case, Gumey's Report, 79, the Lord High Steward, with the
permission of the House of Lords, before Sir J. Anderson gave his evidence,
informed him distinctly that he was not compelled to answer any questions
tending to criminate himself , and the witness likewise availed himself of the
privilege The same witness on the trial at the Central Criminal Court of the
party who had acted as Lord Cardigan's second, received a similar caution from
Williams J , and again refused to answer ques-[249]-tions, which apparently had
a very remote tendency to make him a yarttceps cnminis.
Thirdly Although a witness has answered several questions in
chief, and in cross-examination, if he afterwards objects and claims his
privilege, he ought to be pro¡tected In answer to this position, the doctrine
laid down by Dampier J , Win¡chester Summer Assizes, 1815, 1 Starkie's Evid.
198, 3rd ed , that " if a witness voluntarily answers questions tending to
criminate him on his examination in chief, he is bound to answer on
cross-examination, however penal the consequences may be," and a like
dictum by Best C J , in Dnon v Vale, 1 C & P 278, may be referred to , but so
general and unqualified a rule can scarcely be correct , for, if true, it would
have been applicable in several of the cases already cited Indeed, it rarely
can happen that at the commencement of the evidence the questions will be
objectionable ; and to hold that the inadvertent answers of a witness to some
questions, should bind him to go on to any extent, and to declare himself
guilty of a crime, would be taking away the protection altogether, as its
utility would then be dependent on the skill of the examining counsel, and the
degree of prudence, wariness, knowledge and sqll-possession of the witness. It
seems, therefore, that at any period of the examina¡tion, a witness may refuse
to answer, and if such refusal is warranted by the rule before mentioned, he,
ought not to be compelled to proceed Pailon v Douglas, 19 Ves 225 , Rv
8laney,5C & P 214, tftwensonv Jones, Peake's Ev. note, p 179, 5th ed.
Fourthly The statements made after the appeal of the witness
to the Court, were not admissible to prove him guilty of a crime Those
statements were given under compulsion and duress, and, therefore, ought to
have been excluded, upon the same principle that [250] confessions, not free
and voluntary, cannot be received Wctruncksalls case, I Leach, 263 In R. v. Meiccton,
2 Starkie's Rep 366, an objection was taken, that evidence given by the
defendant before a committee of the House of Commons, could not be admitted to
criminate him, as the declarations were not voluntary, but Abbott C J admitted
them. However, the objection that they were not voluntary was unfounded, for
the defendant appears never to have objected, nor hesitated, but willingly
furnished information to the committee (see Colquhoun's Police of the
Metropolis, 306-7) In Gilharn'* case, I Mood C C 203, Lord Ten-terden observed,
that there must be some mistake in the report of the above case
1DBN. 2BL REGINA V. EDMUND GARBETT 233
and objected to tbe deduction attempted to be drawn from it.
In Wheater's case, 2 Mood. 0. C. 45, tbe examination of a witness before
Commissioners of Bankrupt, was admitted against him upon a charge of forgery,
but he had been told that he need not answer questions tending to criminate
himaelf, and was allowed to pass by those to whdch he demurred. The argument
for the Crown in that case also concedes, that an examination taken, without
admitting the right to refuse to answer such questions would be excluded In
Snnth v. Beadnell, 1 Campb. 30, answers un¡guardedly given by the defendant,
when examined before Commissioners of Bank¡rupt, he having taken no exceptions
to any of the questions put to him, were received against him in an action of
debt for penalties for concealing the bankrupt's property, but Lord
Ellenborough there said, " a person examined before the Commissioners of
Bankrupt, is like any other witness called to give evidence by virtue of a
subposna He speaks at the peril of his examination being turned against himself
He may demur, to be sure, to all questions which would subject him to
penalties. Here the [251] defendant might have demurred, and his objections
could only have been removed by the assignees (to whom the action is given)
delivering him a release. Thus, he might have protected himself " In
titockflelh v. De Tastet, 4 Campb 10, although the examination of a party
before Commissioners of Bankrupt was admitted, yet, Lord Ellenborough said, if
he was under duress when he signed it, he would not be bound by it In R. v.
Hcni'oith, 4 C. & P 254, a deposition made by the defendant, when examined,
before a magistrate as a witness, was admitted in evidence against him, by
Parke J.; but on the ground that " he might, when called on as a witness,
have objected to answer any questions which might have a tendency to expose him
to a criminal charge, and, not having done so, his deposition was evidence
against him " In R. v. Daniel Button, 1 M & Rob 297, Pattesou J ,
after consultation with Alderson B., decided that the balance sheet of a
bankrupt could not be admitted against him on a criminal charge, though, under
the Bankruptcy Law, he is bound to submit to be examined^ and to render a true
account of his estates and effects, and transactions in trade In Courts of
Equity, parties will be restrained from using answers tending to criminate a
witness in a penal proceeding, Jackson v Benso-n, 1 Young & Jervis, 32, or
the Court will direct the examination to be taken off the file and cancelled.
The former course is adopted for the purpose of protecting the witness from the
consequence of answering interrogatories, tending to expose him to penalties,
and yet, at the same time, obtaining his evidence in the matter before the
Court. Hence, it does riot at all follow, that although the prisoner, when
examined as a witness, was legally bound for the purpose of the day, to answer all
the questions put to him, and the [252] Court, therefore, right in insisting
upon answers being given, his examination was properly admitted on the trial
for forgery. The power to compel an answer, as in the case of a bankrupt, who
must answer under peril of being committed to prison, does not import the right
to use an admission or confession, thus extorted, in a criminal proceeding
On 5th June, 1847, Willes was heard for the Crown. The onus
of proof is on the other side : The prisoner must shew that a man's own acts
are not evidence against himself. It is said, 1 That the admission was not
receivable because it was on oath 2. That it was criminatory of himself ; and
made, not only without warning, but even by the direction, and under the order
of the Judge. As to the first point, m many of the cases cited, the objection
to examinations, &c , being used in evidence, was not because they were on
oath, but because the examination, &c. was one which ought not to have been
taken in that form The stat 7 Geo IV. c 64, s 2, directs that magistrates shall
take the examination of the accused, not on oath, but the depositions (r)f the
witnesses upon oath; therefore, where the prisoner's examination has been taken
on oath, it is inadmissible. In the case of R. v. Tubby, 5 C. & P 530 , R.
v. Let ns, 6 C. & P. 161 ; R v. Dames, ib. 177, the person whose sworn
evidence was proposed to be given, was in effect in the same position as though
he had been under examination before a magistrate' The cases of R. v Haioorth,
4 C. & P. 254 ; R v. Goldshede, 1C & K 657 , R v Whealer, 2 Mood. C1 C
45, shew that the mere fact of the statement being made on oath is no objection
to its admissibihty Secondly. The maum of law is nemo tenetur proilere setpsutn
; not nemo pennittitur ; and that maxim is an exception to the [253] general
rule, that every subject of this realm is bound to give evidence relevant to an
issue between the parties. In Paxton v. Douglas, 16 Vesey, 242, 3, Lord Eldon
held, that the witness might answer if he liked, cb. ca. ii.-8*
234 BEGIN A V. EDMUND GABBETT 1 DMJ. 264.
and that the result depended on the discretion of the
witness. There are several cases in equity which shew, that the witness may
deprive himself of the privilege in question by a particular course of
proceeding. In the E I. Co v Atkins, 1 Strange, 168, the Chancellor said,
" What is the defence in this case ? It is that the defendant is not bound
to discover what will subject him to a penalty It is insisting that the
plaintiffs have no right to demand that discovery. It is a negative privilege
allowed by the law, that a man may, if he please, refuse to discover a matter
that will subject him to penalties ; * * * If a man will waive such a
privilege, surely he may , it is not a thing prohibited by the law." This
shews that the witness may, by his own act, waive the privilege , and this is
confirmed by the judgment of Hart V. C , in Green, v. Weaver 1 Simons, 427,
&c., where Lord Eldon's dictum in Paxton v Douglas, 16 Vegey, is explained
and limited. Now, if this be a privilege, the same rule is applic¡able to it as
to all other privileges ; the party may use it so as to protect himself, but
not so as to injure others. Hence, Lord Tenterden ruled, that if a witness
waive his privilege so far as to answer part of the questions tending to
criminate him, he cannot be exempted from answering the remainder , East v.
Chapman, 1 M & M 48 I 2 Phillipp's Ev. p. 418 It would be monstrous if it
were otherwise , for, in that case, it would amount to a privilege to the
witness to garble the facts , but his privilege is to be sdent , if not silent,
he is bound to speak the truth, the whole truth, and nothing but the truth See
too Sloman v Kelly, 3 Y & Coll 673 [254] If then this be a mere privilege,
and may, therefore, be waived, and one which is waived ipso facto, if a party
chooses to go at all into the transaction, how can it be contended that it is
the duty of the Judge to warn the witness not to criminate himself ? There is
no authority to shew that it is the Judge's duty to caution the witness From
what Lord Tenterden is reported to have said, in East v Chapman, 1 M & M
48, it would seem not to be so. There the witness, having answered one or two
questions, was pressed further, and then appealed to the Court for protection,
but his Lordship said, " You might have refused to answer at all ; but
having partially answered, you are now bound to give the whole truth." See
also, Thomas v. Newton, in note to that caae-where Lord Tenterden said, that
the objection belonged to the witness, and would not allow the counsel in the
cause to argue it, or even (as it seems) to take it for him See too per Lord
Ellenborough in Lord Cochranes case, p 194. But it is said on the other side,
that here the witness did put himself under the protection of the Court, but
that protection was refused, and he was directed to answer But on look¡ing at
the moxle in which the objection was taken, it seems clear that, if this be a
privilege, which the witness must assert m order to avail himself of, he had
already goae too far to have exercised it at all without garbling the truth The
defence must have been, that the acceptance was neither in the defendant's
handwriting, nor put there by his authority He says, in his cross-examination
" The stamp never was out of my possession till it was handed to Mr.
Phillips " He was then asked, " Had you Mr. Booth's authority to
accept it ? " Ans. " I had not." Afterwards he is asked, "
Did he not write you a letter ? '' &c , &c., &c., and then at last
the witness said, " I am in the hands of the Court." Lord Denman then
said, [255] " It must be answered." So here, for the first time, he
takes the objection The object of the cross-examination was to see whether the
bill was accepted by Booth, or by his authority ; or to falsify the statement
of the witness. The witness answers all the previous questions, knowing what
the issue is between, the parties, and what he came to prove.
Alderson B.-He never gave any evidence in chief ; he was
only put in as an act of charity ; one short-hand writer said that he only took
down the cross-examination ; another said, that he took down all that was said
, and, therefore, it is clear that no question was put in chief to shew that
the acceptance was forged. It makes a material difference whether the
criminating matter is first introduced on cross-examination, or whether he had
already admitted it in his examination in chief.
Willes. Where a witness in a matter directly in issue has
advertently gone into pait of a transaction, he must answer the whole truth ,
but it may be otherwise, when a witness has done so in a merely collateral
matter.
It may also be observed that the witness does not seem to
have objected to answer, in order to protect himself, but to prevent the giving
up the name of the other person who was in the room. But be that as it may, he
had stated so much
IDEK.I66. REGINA V. EDMUND GABBETT 235
without objection, that the Judge was bound to require him
to go on, in order to prevent the truth being garbled.
Cbltman J.-But it was not voluntary on his part aiibwering
any of these questions ; he was forced to begin.
Willes. He might have objected at the outset, and not having
done so, he laid himself open to cross-examination on the whole case
The position contended for on the other side, that [256] the
Judge, on the trial of the indictment, had a discretion in deciding whether the
statement was admissible or no, and whether the Judge who tried the cause ought
or ought not to have per¡mitted the question, leads to innumerable
difficulties, if not impossibilities. For the Court would have to inquire
whether the prisoner took the objection ; whether he was cautioned, and
countless other matters would have to be gone into, all of which the Judge who
tried the cause would have before him, but of which the Judge at the second
trial could have but very imperfect evidence, and probably none at all.
Therefore, it will be impossible to constitute the second Court a Court of
Appeal from the first.
There is an observation to be made respecting the admitted
exceptions to the general rule, that a man is bound to answer the whole truth ;
and that any statement in such answer may be used as evidence against himself.
All those exceptions are well known, and commonly acted upon ; if this were one
it would be by this time as well defined, and fully acknowledged as the others ò
it is not so
Now, a statement made by a party which amounts to a
confession of his own guilt, is always evidence against him, except in two
cases ; one is, where the motive of the confession was such as to render its
truth doubtful, as where a prisoner confesses the crime under the influence of
a promise or a threat In R. v. Court, 7 (!. & P. 486, Littledale J. said,
" The object of the rule relating to the exclusion of confessions, is to
exclude all confessions which may have been procured by the prisoner being led
to suppose that it will be better for him to admit himself to be guilty of an
offence which he really never committed." Another, is in the case of
adultery, where, from reasons of pokey, the Ecclesiastical Courts will [257]
not pass sentence of divorce solely on the confession of the parties. Mortimer
v. Mortimer, 2 Haggard, 315 ; Burn's Ecc. Law, Phillimore Ed., p. 504-5. The
present statement falls within neither of these two exceptions, and seems to be
an ordinary case of an indirect admission of guilt, which is always considered
one of the most satisfactory classes of evidence. Therefore, first, the
statement being on oath, does not, on that account, become inadmissible.
Second. Any statement by a witness, on the trial of an issue joined between
other parties is evidence against him, except 111 the case of certain known
exceptions. Third. The privilege of not criminating himself, may be waived, and
is so where the witness has not objected to the particular course of
examination at the outset.
M, Chambers, Q. C., replied.
In reference to an observation, that the statement of the
prisoner resembled a confession made under undue influence, Alderson B
said-" Is not this the true ground of exclusion-that his liberty of
refusing to say anything on the subject has been infringed-rather than that his
evidence is not receivable, because it is possibly not true ? "
Cur. adv. vult.
Afterwards the Judges met to consider this case ; most of
them twice. Nine of them, viz. :-Parke B., Alderson B., Coltman J., Maule J ,
Rolfe B., Wightman J., Qresswell J , Platt B., and Williams J., were of
opinion, that if a witness claims the protection of the Court, on the ground
that the answer would tend to criminate himself, and there appears reasonable
ground to believe that it would do so, he is not eompellable to answer ; and if
obliged to answer, notwithstanding, what he says must be considered to have
been obtained by compulsion, and cannot be given in [258] evidence against him.
They did not decide, as the case did not call for it, whether the mere
declaration of the witness on oath, that he believed that the answer would tend
to criminate him, would or would not be sufficient to protect him from
answering, where sufficient other circumstances did not appear in the case to
induce the Judge to believe that it would not. The above nine Judges also
thought, that it made no difference in the right of the witness to protection,
that he had chosen to answer in part; being of opinion that he was entitled to
it at whatever
236 THE QUEEN V.
HORATIO NELSON WEST 1 DEN. 269.
stage of the inquiry he chose to claim it, and that no
answer iorced from him by the presiding Judge (after such a claim), could be
given in evidence against him , and they did not consider themselves bound by
the ruling of Best C. J., in Dixon v. Vale, 1C & P. 278, and of Lord
Tenterdeu, in East v. Chapman, 2 C & P 573.
Lord Denman C. J., Wilde C. J , Pollock C. B , Patteson J.,
Coleridge J., and Erie J., contra.
Patteson J. was not satisfied that the witness ever did
claim the protection of the Court. (M.S. Parke B.)