State v. Vincent

Counsel

Fisher, Attorney General, in reply to the objection, cited State v. Eaton , 3 Harr. 554, and State v. Johnson , 5 Harr. 507. The Court after considering the question, recognized and reaffirmed the distinction ruled in the cases cited, and in conformity with the general principle stated in 2 Russ. on Crimes, 876, and said the Court would presume that the magistrate had done his duty in the premises, and as the statute expressly required him to examine the accused, taking his voluntary declarations, and to reduce his examination to writing and read and tender it to him for his approval and his signature, as thus reducing to writing, the Court would assume that he had done all which the statute required of him to do in the case. But as the statement when thus reduced to writing and tendered by him to the accused, could have no sanction or effect as his confession without his signature, or his assent to the correctness of it, it could not be evidence without proof of that fact, or the Court's further presuming also that the latter had signed, or assented to it, but which it was neither required to do, nor warranted in doing. For in the latter particular our statute went further than the English statute in similar cases, which only required the magistrate to reduce the confession to writing, but not to read or tender it to the accused, as ours does, for his signature, or approbation. The objection was therefore overruled, and the testimony was admitted.