There are very few questions in which there is a greater conflict of judicial decisions than in that whether the statement made on oath by a person while under examination as a witness before a coroner's inquest or an examining magistrate can afterwards be used as evidence against him upon an indictment for the same offense as that as to which he has been examined. In Roscoe's Crim. Ev., pp. 49 and 50, references to many of these conflicting cases may be found. Mr. Phillips, in the last edition of his valuable treatise on evidence, after referring to most of the cases on the subject, endeavored to draw a distinction between the case where the prisoner was in custody, or was under suspicion, and where he was examined against another party under a distinct charge (see 1 Phil. Ev., 404). Mr. Roscoe, in remarking upon the distinction, says that in none of the recent cases had it been adverted to as the ground of decision. He then closes his observations on the subject by the remark that "the ground on which a deposition, upon oath, by a prisoner, has been generally considered to be inadmissible, without reference to the circumstances under which it is made, is that, being upon oath, it cannot be looked upon as a voluntary statement, although it undoubtedly strengthens the objection to such a deposition that the party is in custody or under suspicion at the time."
In S. v. Broughton, 29 N.C. 96" court="N.C." date_filed="1846-12-05" href="https://app.midpage.ai/document/state-v-broughton-3660766?utm_source=webapp" opinion_id="3660766">29 N.C. 96, the prisoner had been (128) examined as a witness before the grand jury, who were investigating the case of alleged murder, and had given evidence tending to fix the charge on another person. He was afterwards suspected and indicted for the crime, and his testimony, as given before the grand jury, was offered as evidence against him. The Court said that if the evidence offered had purported to be a confession, it could not have been admitted,
because, being under oath, it could not have been deemed voluntary; but as a statement tending to criminate another person, it was admissible against him, and the falsity of it, taken in connection with other circumstances, was relied on as evidence of his guilt. There the prisoner at the time when he was examined was not under arrest, in which respect the case differs from the one now before us. Rex v. Lewis, 6 C. and P., 161 (25 Eng. C. L., 333), approaches in its circumstances to our case. There the prisoner, Coelia Lewis, was indicted for an attempt to poison. It appeared that on the day on which she was committed she had been summoned as a witness, along with others, to give evidence before a magistrate. At first, she was not suspected, but on the conclusion of her examination she was committed for trial on the same charge. In her examination she had referred to a letter produced by her, and on her trial it was proposed to be proved, on the part of the prosecution, what she had said about the letter. Gurney, Baron, refused to receive the testimony, saying that it in her written examination. It was then proposed to give evidence of what the prisoner said, which was not taken down, and this was also refused by the judge. Here it will be noticed that the evidence which was ruled out is not stated to have been a confession of the prisoner's guilt, and the ground upon which it was rejected must have been that the prisoner's statement was made while she was on examination on oath. The circumstances of the case now before us are still stronger to show that the prisoners were under restraint in giving their testimony. They were suspected of having committed the homicide, were under arrest, and were subjected, as the bill of exceptions (129) states, to a rigid examination. Although treated as witnesses, they were, in truth, prisoners under examination, and as such nothing which they stated under oath ought to have been admitted in evidence against them (see Roscoe Crim. Ev., 61). The judgment must be reversed and a
PER CURIAM. Venire de novo.
Cited: S. v. Wright, 61 N.C. 488" court="N.C." date_filed="1868-01-05" href="https://app.midpage.ai/document/doe-on-dem-of-cox-v-gray-3651351?utm_source=webapp" opinion_id="3651351">61 N.C. 488; S. v. Matthews, 66 N.C. 110; S. v.Grady, 83 N.C. 645; S. v. Parker, 132 N.C. 1018.