Beaman, J.:— I agree with my learned colleague but I would like to make a few remarks with reference to the confession. It occurs to me that in all such cases the principal duty which Judges have to discharge, the primary importance of which is too often overlooked, is to determine in the first instance whether a retracted confession is voluntary or has been improperly induced.
2. The mere fact that a prisoner puts in a plea of not guilty and denies having made the confession or explains having made it by allegation of Police torture, is enough in itself to put a Judge upon enquiry, and he then has to decide before admitting the confession at all, or allowing it to he looked at, whether it has been improperly induced. That is a question for the Court, i.e, the Judge to answer in limine. If upon weighing all the circumstances, the prisoner's denial and the probabilities, it appears to the Judge that the confession has been improperly induced, no matter how true it may be, he is bound to exclude it.
3. In the present case it seems to me that the Sessions Judge, who has treated the case on the whole temperately, with great fairness, did to some extent consider that question, though all the factors involved in it were not as clearly denned as they should have been, I also think that this is a point which it is for the Court to determine before the trial begins. If, as here, he comes to the conclusion that the confession was not improperly induced, and admits it, it then becomes evidence and liable to be appreciated and weighed with the rest of the evidence in the usual way. Being thus an important part of the prosecution evidence, Judge and assessors agreed in believing that it was substantially true and from that conclusion, see no reason to differ.
4. When the Judge calls the confession “genuine” I take him to mean that it was voluntary. If both voluntary and true it is, even standing alone, virtually conclusive. I would, therefore, confirm the conviction but I agree with my learned colleague in thinking this a proper case for commuting the sentence to transportation for life.