Page:Federal Reporter, 1st Series, Volume 8.djvu/273

BNITED STAiXEB ». STONE. 259 �delicacy he felt about his officiai position., but the accused was in custody before him, and while the examination was in progress, by his consent, and, as I infer, by his instigation, the pritoner vras taken eut by the witness for the very purpose of induoing a confession, the magistrate instrueting the -witness "to tell him about tuming state's evidence." This was really making the^ person talking to the pris- oner an agent of the magistrate to do Vhat he felt a delicacy in doing, and, under the circumstances of the case, it fell clearly within the rule of inducements held ont by the sanction of one in authority, which are as fatal to the evidence as if held out by himself. 2 Ben. & Heard, Lead. Crim. Cas. 576, 516, and cases cited; Reg. v. Taylor, 8 C. & P. 733; S. C. 34 E. C. L. 608; Reg. v. Sleeman, 6 Cox, 245, and other cases cited ; 3 Jac. Fish. Dig. 371^. It does riot appear whether the case of Reg. v. Moore, 2 Den. 522 ; 8. C. 12 Eng. Law & Eq. 583; S. C. 2 Ben, & Heard, Lead, Cas. 499, was called to the attention of the court, but it certainly resolves the conflict mentioned in the above extraot and by Mr. Greenleaf in favor of the admissi- bility of all confessions made to a third person net in authority, to be weighed by the jury according to the circumstance of each case. It was 80 understood by the leamed annotator of Greenleaf's Evidence, in the edition already cited, and by the text writers since that case was reported, and by the learned judge in Com. v. Smith, 10 Gratt. 734, — one of theablest expositions of the iaw.of the subject I have found, and which bas come under my observation since the foregoing portion of this opinion was written. See, also, Wolf v. Com. 30 Gratt. 833, where the case was affirmed. I cannot, therefore, consider these expressions in Beggarly v. State as establishing the doctrine contended for as the rule of evidence in Tennessee, even if, as such, it were binding on this court, which it probably is not. U. S. v. Reid, 12 How. 36. �When we come to determine who are persons in authority, in the sense of the rule above indicated, I do not know bow better to express my judgment on the question than to adopt that of the leamed j'udge in Com. v. Smith, supra. It was contended by the leamed counsel in this case that the fact that a master or mistress could be such person in authority, would show that any kind of domination would answer the rule, and that officiai authority was not essential as an element in determining the question. It might be a sufficient answer to this to say that the facts here do not show that Bennett had that domination over the mind of Stone to bring the case within the rule as thus indicated. The authorities already cited demonstrate that ��� �