State v. Grant , 22 Me. 171 ( 1842 )

The opinion of the Court was prepared by

Sheplev J.

— The trunk, which was stolen, is alleged in the indictment to be the property of Eusebius Emerson of Addison. The proof is, that there w’ere in that town two persons of that name, father and son ; and that the trunk was the property of the son, who had usually written his name with junior attached to it. Junior is no part of the name. It is only descriptive of the person.

In Lepiot v. Browne, 1 Salk. 7, and in Sweeting v. Fowler, 1 Stark. R. 106, it was held, that when there are two, father and son, of the same name, the presumption is, that the father is meant. But this presumption is removed by any proof, that the son was intended. In Boyden v. Hastings, 17 Pick. 200, the declaration set forth a judgment in favor of Samuel Boyden. The judgment produced was in favor of Samuel Boyden, Jr. The Court say, “as the pleadings now stand, we cannot presume, that Samuel Boyden, Jr. and Samuel Boyden are the same person.” In Rex v. Peace, 3 B. & A. 579, the indictment alleged an assault and battery on Elizabeth Edwards. It appeared in evidence, that there were two of that name, mother and daughter; and that the assault was committed upon the daughter. The like objection was taken, as in this case, and overruled. The Court say, “ the question here is not, whether the party assaulted has been rightly described; but who the party is, who is described in the indictment as having been assaulted. Here that has been sufficiently proved. The 'objection therefore is not sustained.” Excepting the difference in the crimes, that language is applicable to this case.

It is next objected, that the testimony stating the confessions of the accused was illegally received. There can be no doubt, that an inducement was held out to him to make a confession to “ save his brother.” And there is reason to believe, that he made it under that influence. It would seem to be excluded by the rule laid down by Eyre, C. B. in Warickshall’s case, 1 Leach, 298, where he says, “ a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it' is rejected.” This rule appears to have been limited by subsequent cases, so that there must appear to be some fear of personal injury, or hope of personal benefit of a temporal nature, to exclude the confession; unless the collateral inducement be so strong as to make it reasonable to believe, that it might have produced an untrue statement ás a confession. Roscoe’s Cr. Ev. 30; Greenl. Ev. 266; 9 Pick. 503. In this case the inducement was but the advice of one not pretending to have or to speak by any authority. There was no promise or other ground of confidence, that his brother would escape, if he confessed. And under such circumstances the Court cannot conclude that the motive was sufficiently strong to influence him to make a false statement.

The proof , of property was sufficient for the purposes of the indictment.

Exceptions overruled.