The Hawaiian gazette., 1871-09-27
Supreme COurt-In Banc0.
JULY TERN. 1871.
ALLEN, C. J., HARrWELI, J.
The Kinq s. Bila Kamnknun.

that il be would come in and confess, the Judge
would release him from the prosecution, and he
would go free of the charge and that shortly after
this, the defendant went In and acknowledged bis
guilt" Held. That Ii was not error that the
Court unasked did cot rule out the confession the
Magistrate having cautioned the prisoner to be care
full what be said as his evidence would be used
against him; but refusal to admit evidence Of In
ducements by an officer present In the Courtroom,
but not in charge of the prisoner, is error.l
Exceptions from the Third Circuit Court
holden at Hllo, at the last May Term, at which
the defendant was convicted on an indictment
for perjury, charging him with falsely testifying
before the Police Justice Of Hilo, in a trial Of
one Koi aud one Kapuahi for selling intoxicat-
ing liquors, that he obtained liquor Of the said
Koi and Kapuahi. The bill Of exceptions recites
all the evidence, in which it appears that the said
Police Justice testified that after hearing the
evidence at the said trial. he saw its discrepancy,
and " informed the parties that be would adjourn
to give any Of the witnesses chance to retract
il they felt inclined to do so that shortly there
after one of the witnesses at said trial came in
and corrected his statement, and in presence of
this defendant said that what he had testified in
court was false; that this defendant, with the
remaining two witnesses, was Immediately ar
rested for perjury, and after hearing the charge
and being cautioned by the Court to be careful
what they said. for their statements might be
read in the Court above, they then said, we are
indeed guilty The remaining evidence does
not tend to sustain the verdict unless taken in
connection with the confession. On this point,
the evidence Of the defendants witness KainOa
was, that just before the confession, be heard the
Luna Maka Keawehano, eonversing with the
defendant, but did not know what was said that
Kahiko was luna makai living near the defend
ant Here the defendants counsel proposed to
ask the witness, !" if Kahko had any conversation
with defendant in the courtroom at Hilo, on the
day in which he and keoni and others were
prosecuted for perjury, Immediately before de-
| fendant made his plea of guilt, and did he in that
conversation hold out any lnducement for him to
confess. and if so, what that conversation
and what we're those Inducements THIS ques-
tion was objected to and ruled out, on the ground
that the question, as il regards any induce
ments to confess should be confined 10 the officer
who had Immediate authority over the defendant
at the time, and would exclude an officer who
had not had any connection or authority in the
prosecution; J" exception to which ruling was
allowed.
Further evidence for the defendant was, that
luna makai named Keawehano, appearing to
nave charge Of the defendant before the Police
Justice, said to the defendant, Immediately be-
fore his confession, and also to the other prison
ers, that " If they were guilty they had better
admit it, if not to say SO but that if they would
come in and confess, the Judge would release
them from the prosecution and they would 90
free of the charge When the jury rendered
their verdict, defendants counsel excepted there
to as contrary to law and evidence, but alleged
no special grounds A motion in arrest was
overruled, alleging special exceptions to the suf-
dcieucy Of the indictment, and exception was
allowed to this ruling.
W. c. Jones. for the exceptions.
The AttOrney-General. S. H. Phillips, contra.
HAKTwELL j. The questions 10 this case are
the suiciency Of the Indictment the admissibilily
of the rejected evidence and the competency Of
the admitted evidence.
The indictment presents the statute ingredients
of the offence Of perjury, aud tie exception to
its form is not sustained by law.
The rule Of English and American law, unlike
that of civil law. excludes confessions which are
not voluntary, on the principle that no one shall
be made TO convict himself by torture or other
wise. This rule excludes confessions wherever
the slightest Inducements by persons in authority
had been held out, aOless il be shown that their
influence was removed. The rule was extended
to cover Inducements made in the presence of
persons in authority under their implied sane
ton. by the complainant or his wife By q surgeon
or chaplain in attendance, and generally By per-
sons whom The accused might regard as having
authorily.-Com- Va Morey. Gray. 253 Com.
vs. Tuckerman, 10 Gray, 100; Com. vs. Curtis,
81 Mass, SIS /; Rex vs. Upchureh. Mood. Cr
Cases. 464; Rex We. Luckhurst, % T. l. & Z,
606. The admIssbhty Of the rejected evidence IN
this case seems to be within this extended rule.
and also within the rule laid down by this Coart
In Banco. in the Paakaula case, at a special term
in March. 1867. viz: The Court will rigidIy ex-
clude all testimony Of confessions il made in con-
sequence Of previous threat or promise BY
person who may be supposed to have some au-
thOniy or influence" The officer in Court, bat
not in charge may have been regarded By the
prisoner as having some authority.
The admission Of this evidence, aud Of evidence
Of any facts or circumstances which may tend 70
influence a confession, seems to me 70 be correct
in principle also. The private Indictment may or
may not have as much effect as the Official bat
II cannot be deemed immaterial in any case in
which it may effect the significance Of the con-
iession. An assurance Of advantage from an in
Innate friend Of the judge may have no legal
elect, bat no one can say that it may not deter
nine the prisoners course. The English Courts
have regretted that they are bound By their pre-
;edents 70 give any conclusive effect TO oa5cial
Inducements, and say thus: Perhaps It would
nave been better to have bed that 10 all cases a
udgs vas 70 decide upon his own Tiew Of all the
circumstances, including The naturs Of the threat
y indoeemeut. and the character Of the persons
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