It was proved at the trial that the prisoner was examined as a witness before the coroner’s inquest, held on the day after the alleged murder. The testimony that he gave on that occasion was proved without objection. At a later stage of the trial, it was shown that, previous to the sitting of the inquest and on the same day, the prisoner had been arrested by one Squires a constable, without warrant, and was under arrest' at the time of his examination. The prisoner’s counsel then moved to strike out the evidence given in his testimony before the inquest, which the court refused to do.
It was not to late too strike out the evidence, if it was incompetent. It was received without objection, under the supposition on both sides, that the prisoner was not under arrest at the time of his examination as a witness. It was in time to make the objection, when the fact appeared on which that objection was based. The question must therefore be decided as if the objection had been made to the admissibility of the evidence before it was received.
This subject has been so recently and so fully examined in the case of The People v. Hendrickson (1 Park. Cr. R. 416,) that nothing new can be gleaned from a further review of the authorities. Upon principle, there can be no good reason *670for the exclusion of this evidence. It is only upon a judicial examination, where the prisoner is brought before a magistrate charged with crime, that the accused is to be informed by the magistrate that he is at liberty-to refuse to answer any question that may be put to him. (2 R. S. 708, § 15.) He is to be examined, but not on oath; and his answers may subsequently be used as evidence against him. That is the examination of a party and not of a witness.
In the examination of a witness, a different rule prevails. In that case the witness is to answer, unless he objects that his answer will tend to criminate him. If he makes that objection, he will not be compelled to answer. But if he does answer, his testimony may be given in evidence, afterwards, against him.
There is no hardship in this rule, nor is there any necessity for making any exceptions to it. It places all witnesses upon the same footing.. The protection is the same, whether the witness be examined in a civil or a criminal suit, or on a general enquiry, before a grand jury or a coroner’s inquest. In all these cases, a suspected person is. liable to be called- and examined, though he can not be, where he is a party to the proceeding.
This case differs' a. little from Hendrickson’s case, but not in principle. There the witness was said to have been under suspicion at. the time of his examination before the coroner; here he was under arrest. But he was not under an arrest made by order-of the coroner, nor was he before the coroner as a prisoner. The coroner had no instrumentality in causing his arrest, nor had he even any knowledge on the subject. The constable, Squiers, without warrant, but supposing there were reasonable grounds for suspicion, had arrested the prisoner. After such arrest and before he was brought to Brintnall, the justice of the peace, before whom Squires was proceeding to take him, the inquest was-held' before the coroner, as a separate proceeding,, and at that inquest, the prisoner, being present, was called and examined as a witness.
Under such circumstances, McMahon was not before the *671coroner, as. a prisoner, but as a witness. It does not appear that any person knew of his arrest except Squires. In regard to the coroner’s proceeding, he stood, in no respect, in the relation of one arrested or even accused. He was there only in the capacity of a witness and it is as such, and not as a party, that his legal rights are to be determined.
It will not be claimed that it. was improper to examine him on oath. The. fact, that he had been arrested, in a different proceeding, and by an officer in no way connected with the inquest, could not certainly- disqualify him from testifying at the inquest. He was a competent witness. He was bound to know his legal rights. Like every other witness, he might refuse to testify 5 but if he did answer, he was bound to tell the truth at his peril. He was bound by his answers, and responsible for their truth. It will not be controverted, but it was proper to take his testimony into consideration in making up the inquest and that, for that purpose, it would be deemed voluntary. Upon what principle can it be deemed involuntary, when it is sought to be referred to as an admission, available in some other proceeding! It can not surely be voluntary for one use and involuntary for another.
It is said that being under arrest at the time of his examination, “ his mind was overcome by a heavy calamity and confused by the conflicting emotions incident to a criminal accusation.” Such a- state of his mind might well be produced without an arrest. It would more naturally be the result of the criminal act; itself, than of an arrest for the act. A troubled conscience would produce just such emotions. And with the more hardened, and even with the innocent, such feelings might arise from the distrust exhibited by those around him, without any overt act towards making an arrest. No practicable rule could be adopted which would exclude evidence on the ground that the mind of the witness was “ confused by conflicting emotions.” The only available way is to receive the evidence and judge of it by the character it exhibits. This puts, all competent witnesses upon the same footing and. applies to th.em the same rules of evidence.
*672Suppose, while McMahon was under arrest and on his way to the magistrate, he had been called as a witness in a civil suit against a third person, for damages, in which it might be material to enquire into the cause of the death of the deceased. Is there any doubt but he would have been a competent witness, and obliged to answer all relevant questions asked him, unless he should claim his privilege not to criminate himself? No one I think will question it. His answers then would have been evidence in the civil suit, and would be deemed voluntary. If, in such case, he does not claim his privilege, he will be considered as willing to criminate himself, and there can be no doubt what he testifies to may be used for that purpose after-wards. It is because it may be so used, and to avoid such a consequence that he may refuse to answer. If such use could not be made of it, there would, in no case, be any necessity for making a claim of privilege.
If it would have been competent to prove what was stated under oath by McMahon in a civil suit, it was equally competent to prove his .testimony before the coroner. If he was under arrest and was examined to the same subject matter, it could make no difference to him whether he was examined in a civil suit, or on a coroner’s inquest or grand jury, or even on a trial of another person for crime. If the arrest was in no way connected with the tribunal or proceeding in which he was sworn, he could not be considered as acting or speaking under any more compulsion than is always supposed to be imposed upon a witness, viz., to testify and to tell the truth; and even that compulsion ceases, in all cases, when a question is asked, the answer to which may tend to criminate the witness. If a witness answers in any case as to such a matter, it will be because he voluntarily elects to do so.
I think the evidence excepted to was properly received.
Relief is also asked on the ground of newly discovered evidence and affidavits are laid before us, with a view of showing hat important evidence has been discovered since the trial. No such ground is available on writ of error. We can only review the legal questions growing out of the trial and reverse for any *673error that may be found to have been there committed. For any mistake of fact, or for any relief on the ground of the discovery of new evidence, the party can only look to the tribunal in which the issue was tried. The power of the Oyer and Terminer to grant a new trial on the merits has been ably, and I think conclusively, vindicated, by one of my learned associates in The People v. Morrison (1 Park. Cr. R. 625). At all events, no such power is vested in the appeelate tribunal.
The judgment of the Oyer and Terminer must be affirmed and the sentence pronounced is hereby directed to be executed. (2 R. S. 741 § 24.)
Judgment affirmed.