28 A. 95 | N.H. | 1889
In a criminal case, when the defendant's confession is offered as evidence, it is necessary to inquire whether it was made under the influence of hope or of fear, and for the purpose of gaining some benefit or avoiding some harm connected with the criminal charge. If not made for that purpose, it is held to be voluntary, and is evidence. The purpose of the confession is a question of fact. This distinctly appears in State v. Wentworth,
"In the earlier cases there has been much conflict upon this subject, resulting in some degree from failing to recognize the question to be largely one of fact alone, to be determined upon a consideration of all the circumstances of the case. Instead of which some of the cases seem to have given to particular expressions a technical character, and to have excluded the confessions where, upon a consideration of all the circumstances it would not have been found, as matter of fact, that the confessions were made under the influence of hope or fear held out by another. . . . Whether the confession . . . was voluntary or not is purely a question of fact, as much so as the question whether a witness offered to testify was interested or not, or whether a witness was qualified to testify as an expert, or whether the loss of a paper has been shown so as to allow the introduction of secondary evidence of its contents. In this and the like cases the judge who tries the cause must decide, although in some instances he may submit the question of fact to the jury. In either case, whether the decision be by the judge alone, or it be also passed upon by the jury, no exception lies so far as the question is one of fact. If, however, upon the evidence reported by the judge, it clearly appears that there was error in his finding upon the matter of fact, it may be corrected as in other cases where a verdict is against evidence." State v. Squires,
When it is said that the admissibility of a confession is a "matter resting wholly in the discretion of the judge, upon all the circumstances of the case" (1 Gr. Ev., s. 219), the meaning is not that he has arbitrary power, but that the question is one of fact. "Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court." Darling v. Westmoreland,
"The term admission is usually applied to civil transactions, and to those matters of fact in criminal cases which do not involve criminal intent; the term confession being generally restricted to acknowledgments of guilt. . . . The rules of evidence are in both cases the same. . . . A distinction is taken between the admission of particular facts, and an offer of a sum of money to buy peace. For, as Lord Mansfield observed, it must be permitted to men to buy their peace without prejudice to them if the offer should not succeed; and such offers are made to stop litigation, without regard to the question whether anything is due or not. If, therefore, the defendant, being sued for £ 100, should offer the plaintiff £ 20, this is not admissible in evidence, for it is irrelevant to the issue: it neither admits nor ascertains any debt; and is no more than saying he would give £ 20 to be rid of the action. But, in order to exclude distinct admissions of facts, it must appear either that they were expressly made without prejudice, or, at least, that they were made under the faith of a pending treaty and into which the party might have been led by the confidence of a compromise taking place. . . . It is the condition, tacit or express, that no advantage shall be taken of the admission, it being made with a view to, and in furtherance of, an amicable adjustment, that operates to exclude it. But if it is an independent admission of a fact merely because it is a fact, it will be received." 1 Gr. Ev., ss. 170, 192. *155
"An offer by a party to pay a sum of money by way of compromise of an existing controversy, is not to be used as evidence against him. But an admission of particular facts made during a treaty for a compromise may be given in evidence as a confession. . . . The reason why a mere offer of money or other thing by way of compromise is not to be evidence against him who makes it, is very plain and easily understood: such an offer neither admits nor ascertains any debt, and is no more than saying that so much will be given to be rid of the controversy." Sanborn v. Neilson,
That case was assumpsit on a note for $50, purporting to be signed by the defendant and one L. The question was whether the note was signed by the defendant. Subject to exception, the plaintiff was allowed to prove the following facts: The defendant and L had been connected in business to some extent. When the writ was served on the defendant, L not being present, the plaintiff demanded payment of other claims which he had against L, amounting to some one or two hundred dollars. The defendant "asked a person present to advise him as to the propriety of compounding with the plaintiff for the whole, and was advised, if this note was a genuine one, to offer the plaintiff a sum to settle the whole, but if the note was a forgery, not to pay a cent." The defendant offered $25, and on being told that that was not enough, he offered $50, and then $75. The plaintiff's contention was, not that the mere offer of a sum in settlement was evidence of an admission that the defendants signed the note, but that, in view of the advice he asked and received, it was highly probable he made the offer because the note was genuine. "The defendant," say the court, "upon being advised to make an offer provided his signature to the note was genuine, but not otherwise, proceeds to make the offer. It is said that this offer may be shown because it is highly probable, from the advice he received, that he would not have made it unless the signature was so. But . . . such a reason would extend to the admission of any other offer of compromise, because such offers are more apt to be made in cases in which the party making them is conscious that the cause of his *156 adversary is well founded, than in the opposite cases. The fact that he acted upon advice which he had sought may add a very little to the force of such an inference as is contended for, but too little altogether to make the case an exception to the highly salutary, well defined, and established rule." For this reason, the verdict was set aside.
When a defendant offers to pay a certain sum in settlement, his statement that he is too poor to pay more is not sufficient evidence of an intention to admit his liability. Downer v. Button,
In Sanborn v. Neilson,
The questions of law and fact are the same whether an admission is claimed to have been made by a payment or by a rejected offer. If a plaintiff and his horse and wagon were injured in a collision with a cart driven by the defendant, and the expense of repairing the wagon was paid by the defendant, whose subsequent offer to pay a certain sum for the injury of the horse was rejected the question might arise whether the accepted payment and the rejected offer were evidence in an action for the plaintiff's personal injury. Payment, or an offer of payment, may be made to a plaintiff, or to another person having a claim so far like the plaintiff's that the defendant's admission of liability would be applicable to both. The payment, or offer, is evidence of his liability when it is an admission of liability. When a pauper has been supported by a town, or the town has paid for his support, and the act was an admission of liability and not a purchase of peace, it is evidence of the fact which the town intended to admit. The legal principle, applicable to a great variety of cases, is, that intent is the test. An offer of payment, whether accepted or rejected, is evidence when the party making it understood it to be, and made it as, an admission of his liability. It is not evidence when he made it for the purpose of averting litigation, not intending to admit his liability. "If the object be to buy peace, it is plain such an offer carries with it no evidence of the justice of the demand, and it would have a tendency to prevent amicable adjustments if such offers were to be used against the party making them." Marsh v. Gold, 2 Pick. 285, 290. As his object could not be a matter of law, and he knows what it was, he may testify directly on that point. Confusion has arisen from reported cases in which the line between law and fact has not been clearly drawn. In Abbott v. Andrews,
In Sanborn v. Neilson (before cited) the alleged cause of action, which the defendant had confessed, was a criminal offence. The *158 plea of not guilty presented for trial the question that would be presented by the same plea to an indictment for the same act. If a retracted or executed offer of compensation was induced by a fear of a criminal prosecution, and a hope of escaping or lessening the consequences, it would not be evidence in the criminal case. If induced by a fear of litigation, and a hope of buying peace, without an intent to admit guilt, it would not be evidence in the civil case. There is no difference in the nature of the cases on which it could be held that the motive was a question of fact in one of them, and that the motive and intent were questions of law in the other.
When the evidence of intent is "conflicting, and the result doubtful," the question whether an offer of payment was an admission of liability may be submitted to the jury with instructions that they are "to ascertain the meaning of the party making it, and . . . inquire and consider what were the views and intention of the defendant in making it; that if, viewing it in this way, they should find that" it "was intended by him as an admission of a fact, then it" is "to be considered by them as evidence; otherwise they" will "lay it out of the case." Bartlett v. Hoyt,
In Coffin v. Plymouth,
In Grimes v. Keene, 52 N.E. 330, 334, it is said that payment of a claim for damage caused by the same accident is an admission, more or less strong, that the highway, at the point in question, was defective, and the town in fault for its being so; that such an admission is necessarily to be implied from the acknowledgment and payment of the claim, for without the defect there could have been no claim. "If payment of a claim against the town by the selectmen is an admission of the liability of the town, an unqualified offer to pay must be equally so." Gray v. Rollinsford,
In Aldrich v. Monroe,
Judgment on the verdict.
CLARK, J., did not sit; BINGHAM, J., dissented: the others concurred.