¶1The question which arises on this motion is this: Is a confession, otherwise admissible, given before a committing magistrate under oatli upon the preliminary hearing, admissible at the trial of tlie charge against the traverser?
¶2The rule in England on this subject from early times was to exclude as involuntary statements made by a person to a committing magistrate at a preliminary hearing if he has been put under oath. The reason of this is that the practice has been regulated by Statute, from that of 1 and 2 Phil, and Mary, C. 13, to 13 and 14 Tie., C. 18 (1848).
¶3These statutes provide for an opportunity being afforded to tlie prisoner after hearing the testimony of the witnesses against him, to make liis statement. to the magistrate without being sworn. The courts have therefore held, that when acting- under these statutes, for the magistrate to put the prisoner under oatli is to so disturb his ease of mind as to make any statement made by him “Involuntary,” and to subject him to coercion for tlie reason that such statement must he reduced to writing by the magistrate, returned to court and then become evidence per se against the prisoner.
¶4Probably also because the prisoner was an incompetent witness until the passage of the Criminal Evidence Act in 1898, except in certain cases when he was expressly made competent by certain statutes in proceedings thereunder.
¶5Russell on Grimes, 2187.
¶6Alexander's Brit. St at., 373.
¶7Taylor’s Evidence, see 805-6.
¶86 A. & E. Enc.y., 566.
¶9In this country tlie early cases and those in jurisdictions having statutes similar to that of Philip and Mary, follow the English decisions: 15 N. Y. 384 is tlie leading case holding the English view.
¶10I Greenleaf Ev., Sec. 225, also holds to this opinion.
¶11Tlie later cases favor placing a confession made under oath to a committing magistrate or person in authority, upon the same footing as to admissibility as other confessions.
¶1251 Me. 215, State vs. Gilman, 1862.
¶1359 Cal. 650, People vs. Taylor; to a coroner, but whole subject ably considered, 1881.
¶1447 Cal. 126, People vs. Kelley, 1873.
¶15130 Pa. St. 650, C. vs. Clark, 1889.
¶16162 U. S. 623, Wilson vs. U. S., 1895.
¶17168 U. S. 559, Bram vs. U. S., (before a U. S. Commissioner).
¶18166 Mass. 252, Com. vs. Wesley, 1896.
¶19Statement made under oath to a fire marshal.
¶2072 Mich. 178, Peo. vs. Prague, 1888.
¶21120 N. C. 593, St. vs. Melton, 1897.
¶22119 Mo. 551, St. vs. Wisdom, 1893.
¶2396 Va. 493, Hite’s case, 1898.
¶2477 Vt. 59, St. vs. Blay, 1904.
¶2568 Ia. 424, St. vs. Briggs, 1886.
¶26We, therefore, hold in accordance with the later American cases above mentioned that a confession otherwise admissible is not rendered inadmissible by reason of the fact that it is given before a committing magistrate under oath, but that this circumstance may be taken into consideration in determining whether or not it is voluntary.