The charge was for the murder of a small child of the age of about two years, by burning and by a blow. The deceased was the child of the prisoner's wife, born previously to his marriage with her, and it was proved by one Ettress that the prisoner's mother was greatly displeased at the marriage, and told the prisoner that, if he did not put the child out of the way, she would; that the prisoner was a weak-minded man, but considered as perfectly sane. This witness saw the child a few days after it was burnt, and there was no mark, then, on *Page 421 the forehead, but he saw such a mark some days before its death. The burning took place about the first of March, and the child died about the first of April.
Dr. Hill saw the deceased about twenty hours after it was burnt. He dissected the burnt parts, and found the injuries very extensive, the arms, back and thighs were roasted, — crisped like a piece of leather. He stated that there was a wound in the forehead, as if from a blow; he was fully satisfied the burning in itself was fatal, and must have produced death, but he "doubted as to the immediate cause of death — though it was produced by the blow." He explained on cross-examination that he thought the burning the primary cause of the death, but that it was probably hastened by the wound on the head.
The prisoner was arrested in South Carolina, and while in that State, he confessed that he did kill the child in the absence of the mother; that his (the prisoner's) mother persuaded him to do it, and proceeded to tell how it was killed. The person to whom this confession was made, one Hullender, stated that while the prisoner was in his custody, he told him that he would have to go to jail, and that it might be better for him to confess and tell the truth, whereupon the confessions, as above stated, were made. These confessions were excluded by the Court. The Solicitor for the State then produced one Henry Ettress, who testified that, after the prisoner was brought back into the State, he was committed to the custody of a guard, of whom the witness was one; that after the prisoner had been about an hour in custody of the guard, he told him to go on and tell how it happened, and not to tell a lie. The prisoner commenced making a statement when he was interrupted by one Harry, a member of the guard, who told him to be cautious, and tell the truth as to what he said against himself, for that he would have to testify against him. Notwithstanding this caution, the prisoner went on to state how he had burnt the child, but he said nothing about his mother, and did not tell how the wound on the forehead was inflicted. This confession was objected to as having been *Page 422 obtained under the hope of favor, assured to him on the occasion of the first confession, but the evidence was admitted by the Court. Defendant's counsel excepted.
The Court charged the jury that the confession of the prisoner had been received by the Court, but it was for the jury to say whether they were made, and if made, how far they were true; that as to the cause of the death, it was for them to say whether it had been produced by the burning, or other means, and that if produced by the burning, they should be satisfied that the burning was the act of the prisoner; "and even should they share in the doubt expressed by the doctor, that the blow had caused its immediate death, yet if satisfied that the burning was the primary cause of the death, and the blow only hastened it, it would be their duty to convict." — Defendant again excepted.
Verdict "guilty." Judgment and appeal by the defendant. No principle of law is better established than that the confessions of a prisoner shall not be admitted as evidence against him, when they have been obtained from him through the influence of the passions of either hope, or fear. It is also well settled in this State, as well as in England, that when confessions have been thus extorted, any others subsequently made, shall be attributed to the same source, unless it be shown that, by means of a caution, or otherwise, the improper influence has been removed from the mind of the prisoner, so that the subsequent confessions cannot be taken to have proceeded from it. Arch. Crim. Plea. 129-130; 2 Stark. on Ev. 46; State v. Roberts, 1 Dev. Rep. 259. But when the prisoner has received a proper caution, by which he is apprised that his confessions, if made, will be used against him, what he afterwards may say about the crime, with which he is charged, and his connection with it, is admissible as evidence against him, although he may formerly have made *Page 423 confessions which had been extorted by threats, or induced by promises. SeeState v. Cowan, 7 Ired. Rep. 239; State v. Gregory, ante 315. In the present case, we think, the prisoner was sufficiently cautioned to put him upon his guard, and that the confessions made afterwards must be deemed to have been free and voluntary.
Upon the other point in the case, we are decidedly of opinion that the prisoner is entitled to a new trial. As to the cause of the death of the deceased, his Honor charged the jury that if they "should share in the doubt expressed by the doctor, that the blow had caused the immediate death, yet, if satisfied that the burning was the primary cause of the death, and the blow only hastened it, it would be their duty to convict." This instruction was given upon the supposition that the blow was inflicted by another person, and the proposition could be true only when the testimony connected the acts of such person with the prisoner, so as to make them both guilty, and we at first thought such was the proper construction to be put upon the language used by his Honor; but, upon reflection, we are satisfied that a broader proposition was laid down, to wit: that if the prisoner inflicted a mortal wound, of which the deceased must surely die, and then another person, having no connection with him, struck the child a blow, which merely hastened its death, the prisoner would still be guilty. The testimony presented a view of the case to which this proposition was applicable, and it becomes our duty to decide whether it can be sustained upon any recognised principles of law.
Murder, is the killing with malice prepense, a reasonable being, within the peace of the State. The act of killing, and the guilty intent, must concur to constitute the offense. An attempt, only, to kill with the most diabolical intent, may be moral, but cannot be legal, murder. If one man inflicts a mortal wound, of which the victim is languishing, and then a second kills the deceased by an independent act, we cannot imagine how the first can be said to have killed him, without involving the absurdity of saying that the deceased was *Page 424 killed twice. In such a case, the two persons could not be indicted as joint murderers, because there was no understanding, or connection between them. It is certain that the second person could be convicted of murder, if he killed with malice aforethought, and to convict the first would be assuming that he had also killed the same person at another time. Such a proposition cannot be sustained.
The prisoner must have a new trial. This renders it unnecessary for us to consider the effect of the alleged erroneous entry of the verdict.
PER CURIAM. Judgment reversed.