1. It has been argued by the learned Counsel for the prisoner Jagrup, that the statement made by the prisoner on the 22nd September 1884, was a 'confession' within the meaning of the Evidence Act, and, having been made while the accused was virtually in custody of the police, is inadmissible in evidence against him. In support of this contention, the definition of the term 'confession' in Mr. Justice Stephen'S Digest of the Law of Evidence has been referred to; and Mr. Justice Stephen is an authority to whom the greatest respect is due, not only as a distinguished English Judge, but also as an eminent jurist who, moreover, had a considerable hand in framing some of our most important codes in this country. The work, however, which has been cited was if I remember aright, written in view of a proposal for preparing a Code of Evidence for England, and it can scarcely be regarded therefore as an authority to guide me in construing an Act passed by the Legislature of this country in 1872, though I may add that I do not find anything in Mr. Justice Stephen's definition at variance with the view I take. In the present case I do not feel called upon to decide more than the question whether or not this particular statement is admissible in evidence. I am of opinion that it does not constitute a 'confession' within the meaning of the Evidence Act. It must be looked at as a whole, and it would not be right to take isolated portions of it, and to consider whether any of them, regarded separately, amounts to an admission of guilt or not, though it is clear that they do not. It is conceded by Mr. Hill, and even by Mr. Strachey, that the word 'confession' must be understood in the same sense in all the sections of the Evidence Act which relate to confessions. It must be construed as meaning the same in Section 30 as in Sections 24, 25 and 26. Now, it appears to me that to accept Mr. Strachey's interpretation would lead to this result, and I put it as a reductio ad absurdum, that if A and B were jointly tried for the murder of C, and it was proved that A said he was passing along a road, the scene of the murder, about the time G was murdered, upon the strength of such statement anything else he might have said implicating B might be taken into consideration against B as a confession made by A. I cannot think that this was ever intended by the Legislature. What was intended was, that where a prisoner--to use a popular phrase 'makes a clean breast of it,' and unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction which to some extent takes the place of the sanction of an oath, and so affords some guarantee that the whole statement is a true one. But where there is no full and complete admission of guilt, no such sanction or guarantee exists, and for this reason the word 'confession' in Section 30 cannot be construed as including a mere inculpatory admission which falls short of being an admission of guilt. It must not, therefore, in my opinion, be so construed in the other sections relating to confessions.
2. In the present case, looking at the statement of the prisoner Jagrup as a whole, I am of opinion that it does not amount to a confession, and is indeed no more than a statement by a person who admits that he witnessed the perpetration of a crime, but denies having participated in it, and alleges that he protested against it.