Evidence was offered by the State, of confessions made by the prisoner to one Faucette, which was objected to by the prisoner's counsel, upon the ground, that Mr. Parker, the examining magistrate, had shortly before that, induced the prisoner to confess, by holding out hopes of his being favored, if he would do so.
Parker was then introduced to the Court, to state what were the circumstances under which the confessions were made to him, and he stated that before he commenced officially to examine into the case upon the question of commitment, he told the prisoner, that it would be better for him to confess the homicide, and throw himself upon the mercy of the Governor for a pardon. The prisoner made no *Page 316 admissions then, but subsequently, on the examination, he did confess some material facts against himself. The magistrate becoming sensible of the impropriety of his course, went to the prisoner and told him that he had acted improperly in this respect; that his confessions were illegally obtained from him; that they, on that account, could not be used against him hereafter on his trial; but that if he, after that, made any further confessions, they would be evidence against him, and advised him not to make any more.
It was after this, that he made the confessions proposed to be proved by Faucette.
The Court held the evidence admissible. Defendant excepted.
The Court, in the instructions given to the jury, said in relation to the confessions made to Faucette, that "they were not, necessarily, to act upon them as true, but would weigh them as they would any other evidence, and it was for them to say whether they would believe them or not; in doing so, they ought to look to the circumstances under which they were made; the fact that he was tied at the time, and in charge of an officer; that questions were asked him; that hope of favor was held out to him by the examining magistrate, and though he had been subsequently warned not to confess, or it would be given in evidence against him, yet, it was proper for the jury to consider how far his mind may still have been operated upon by those promises."
The prisoner's counsel asked the Court to charge the jury, that what Parker said about the promises held out, was not evidence to the jury, but only to the Court.
The Court charged the jury that such was not evidence, and was only recited to them, that they might consider how far they tended to discredit the confession made to Faucette. Defendant excepted.
Verdict, "guilty of murder." Judgment. Appeal by the defendant. After the repeated cautions given to the prisoner by the examining magistrate and the officer who had him in charge, not to confess, for that if he did, it would be given in evidence against him, and after he had been told that what he had already said could not be admitted against him, we must suppose that his subsequent confessions were free and voluntary. If he were a being of sufficient intelligence to be responsible for crime, he must have understood the reason why the caution was given, and the prudence, if not necessity, of acting upon it. Confessions made under somewhat similar circumstances, were received in evidence in the case ofState v. Cowan, 7 Ire. Rep. 239, and our opinion is, that they were properly admitted in the present case.
The only other objection is equally unavailing to the prisoner. The testimony of the examining magistrate, Parker, given to the Court, at the instance of the prisoner, for the purpose of excluding the confessions which the Attorney General proposed to prove by the officer, Faucette, was necessarily heard by the jury. It was not introduced as evidence to them, and of course, ought not to have been permitted by them to have any influence upon the result in making up their verdict. His Honor, nevertheless, fearing that it might have some weight with them, to the prejudice of the prisoner, called it to their attention in his charge to them, solely for the purpose of informing them that it was not evidence which they had a right to consider, and that, therefore, they must reject it from their deliberations altogether. The object of his Honor was certainly a humane one, and we cannot perceive how his course could have, in any way, prejudiced the cause of the prisoner. That the presiding Judge may notice a fact which transpires in the presence of the jury, is clearly shown by the case of Bailey v. Pool, 13 Ire. Rep. 404. There, the jury were told by the Judge that they might consider, as under the circumstances, bearing against the plaintiff the fact that his counsel had put, and immediately withdrawn, a particular question to one of the witnesses. This Court held that it was not error, "because it was a fact transpiring in the course *Page 318 of the trial, brought before the jury by one of the parties, and in relation to the question under investigation." A similar instance may be found in the case of State v. Whit, decided at this term, ante, 224. It was not error then for the presiding Judge, in the present case, to mention the fact, that testimony, which, according to our mode of conducting trials, must necessarily have been heard by the jury, had been offered to him for a particular purpose. Surely, then, it could not be error for him to tell them, that though they had heard the testimony, it was not evidence for them, and was to be considered, if at all, for the purpose of weakening the force and effect, of the confessions made to Faucette.
It must be certified to the Superior Court of Halifax, that there is no error in the record.
PER CURIAM, Judgment affirmed.