Amendments V and VI

Document 26

Commonwealth v. Dillon

The prisoner (a boy about 12 years old) was indicted for arson, in burning several stables, containing hay, &c. He was examined before the mayor of the city of Philadelphia, on the 20th of December 1791, and then confessed the commission of the offences, with which he was charged. But, as his own confession was the principal evidence (indeed there was no other positive evidence) against him, his counsel insisted, that it was obtained under such duress, accompanied with threats and promises, as destroyed its legal credit and validity. The evidence on that point was, substantially, as follows:

On the 18th of December, the prisoner was committed to the jail of Philadelphia, and the next day was taken before the mayor; but, at that time, he made no confession. On the 18th and 19th of December he was visited and interrogated, by several respectable citizens, who represented to him the enormity of the crime; urged a free, open, and candid, confession, which would so excite public compassion as, probably, to be the means of obtaining a pardon; while a contrary course of conduct would leave him, in case of a conviction, without hope: and they added, that they would themselves stand his friends, if he would confess. The inspectors of the prison endeavoured, likewise, to obtain from him a discovery of his offences, and of his accomplices. They carried him into the dungeon; they displayed it in all its gloom and horror; they said that he would be confined in it, dark, cold, and hungry, unless he made a full disclosure; but if he did make a disclosure, he should be well accommodated with room, fire, and victuals, and might expect pity and favour. The prisoner continued to deny his guilt for some time; and when his master visited him, he complained of the want of clothes, fire, and nourishment. At length, however, on the 19th of December, he made successive acknowledgments of the facts contained in his confession, which was formally, and, to all appearance, voluntarily, made before the mayor, on the succeeding morning; and which was repeated, with additional circumstances, at subsequent periods.

In the prisoner's defence, the following authorities were cited, principally to guard the jury against the danger of mere presumptive evidence, and an extorted confession of guilt, through force, hope, or fear, particularly in the case of an infant. 4 Bl. Com. 357. Fost. 243. 2 Tri. per Pais. 603. 2 H. H. P. C. 225. 4 Bl. Com. 326. Leach C. L. 248. 319. 3 Com. Dig. 511. Staundf. 142. 2 H. H. P. C. 284, 5. 3 Bac. Abr. 131. 3 Inst. 232. 2 Hawk. 604. 8 Mod. Fost. 11. 244.

For the commonwealth. The confession was delivered before the mayor, and afterwards repeated and enlarged, without the least appearance of constraint, or terror. No public officer has improperly attempted to excite fear, or hope, as the medium of extorting a discovery; and all that was said, or done, in that respect, proceeded from the avowed friends of the prisoner, and the known promoters of humanity. Besides the confession itself bears intrinsic marks of its sincerity and truth; and neither the wildness of the boy's motive, for committing the crimes, nor his youth, can afford a satisfactory answer to the charge. Fost. 70. And, after all, to destroy the legal effect of the confession, as evidence, it must be proved, 1st, that previous improper means were employed; and 2d, that the confession was the immediate consequence of those improper means.

By the Court: The fact of the arson is established; and it only remains to decide, whether it was committed by the prisoner? The proof against him, depends upon his own confession, slightly corroborated by the testimony of two witnesses. The confession was freely and voluntarily made, was fairly and openly received, before the mayor; and, therefore, it was regularly read in evidence. But still, it has been urged, that it was thus apparently well made before the mayor, in consequence of improper measures previously pursued with the boy. The interference of the inspectors of the prison was certainly irregular; though the public anxiety, in which they participated, upon this extraordinary occasion, may be admitted as an excuse. The manner in which he was urged, though not threatened, by the citizens who visited him, may, likewise, be objectionable. But is it reasonable to infer, that all the prisoner's confessions were falsely made under the influence of those occurrences? Consider the nature of the offence. It cannot be openly perpetrated; for, it would be instantly prevented; and if it is secretly perpetrated, how, generally speaking, can the offender be detected, but by his own declarations? If such declarations are voluntarily made, all the world will agree, that they furnish the strongest evidence, of imputed guilt. The hope of mercy actuates almost every criminal, who confesses his crime; and merely that he cherishes the hope, is no reason, in morality, nor in law, to disbelieve him. The true point for consideration, therefore, is, whether the prisoner has falsely declared himself guilty of a capital offence? If there is ground even to suspect, that he has done so, God forbid, that his life should be the sacrifice! While, therefore, on the one hand, it is remarked, that all the stables set on fire, were in the neighbourhood of his master's house; that he has, in part, communicated the facts to another boy; that his conduct had excited the attention and suspicion of a girl, who knew him; and that he expressed no wish to retract the statement, which he has given: the jury will, on the other hand, remember, that if they entertain a doubt upon the subject, it is their duty to pronounce an acquital. Though it is their province to administer justice, and not to bestow mercy; and though it is better not to err at all; yet, in a doubtful case, an error on the side of mercy is safer, is more venial, than error on the side of rigid justice.

Verdict, Not Guilty.1

1. The humanity of the jury being gratified by an acquital of the prisoner, from the capital charge, he was indicted and convicted, on the same facts, for a misdemeanor. By the reform of our penal code, Arson is no longer a capital crime.