By the Court.
McDonald J.delivering the opinion.
A new trial was moved for in this case on fourteen grounds. The judgment of the Court refusing the new trial is excepted to, and assigned as error. There are, in the record, several other assignments of error, most of which are made grounds for a new trial, in the motion presented to the Court below, and such as are not and were insisted on before us, we will, proceed to consider, after disposing of the ' points made in *694the motion, and not waived by counsel for the prisoner in this Court.
[1.] The fourteenth ground in the motion was the first ground argued before us, in which it is insisted that a new-trial should be granted, because the Court instructed the Sheriff, previous to the trial, to direct the different constables of the county to summon tales jurors for said trial, and the said constables did, accordingly, summon a large number of tales jurors, who were put upon the prisoner. This ground, as stated, is not sustained by the record. The Court advised the Sheriff to cause the constables to summon a large number of persons residing outside of Atlanta, and in remote parts of the county, to be in attendance at the Court-house, in order that tales jurors might he summoned with convenience. None of the persons so summoned, were put upon the defendant as jurors, except such as were taken from the bystanders by the Sheriff, reported to the Court as tales jurors. The case of Bird vs. The State, reported in 14 Geo., 51, is a precedent for the course pursued by the presiding Judge in this case, and in fact, goes farther; for the Court, in that case directed the Sheriff to cause the persons to be summoned. The reasoning in that case, demonstrates that the practice is convenient to the Court, and beneficial to the person to be tried, by enabling the Sheriff to make up tales jurors from persons less likely to he prejudiced against him. But in this case, there was no objection made to the mode by which the attendance at Court of any of the persons summoned by the Sheriff as tales jurors was procured, and the Court below entertained no doubt that the counsel knew it at the time. This alone is a sufficient reason why a new trial should not be granted on that ground, even if the objection, if made, ought to have been sustained.
[2.] The Court allowed the evidence given by certain of the witnesses, which had been taken down under (he eye *695of the Court, according to the provisions of the statute, to be read to them, that any error which might have been committed in writing it down might be corrected.
This Court held in the Case of Crawford vs. The State, 12 Geo. 145, that the testimony, for such purposes, might be read over at the instance of either party. It is true that the object of taking down the evidence is not that it may be used on the trial, but it is impossible that the prisoner on trial could have been injured by having it twice impressed on the minds of the jury, if it was taken down correctly, and it could do him no injustice to have errors, if any, corrected. The ruling of the presiding J udge on this point is made the ninth ground in the motion for a new trial.
[3.] The first ground on the motion for a new trial, was an alleged error in the Court in permitting the letter of .R. J. Crockett to be read in evidence to the jury, and it is the next of these grounds in the order of discussion in this Court. The letter taken alone and separate and apart from the object with which it was read in evidence was inadmissible. No facts or circumstances stated in the letter could be evidence against the prisoner, for they were the unsworn statements of another person, in the absence of the prisoner, and by which he could not be bound, and in regard to ydiich he had no opportunity to interrogate the writer. The Court in his charge to the jury, explained the purpose for which the letter was admitted in evidence, not to prove any fact asserted in it,but for the purpose of ascertaining the purport of the response made to it when read to the prisoner, and for no other purpose. Again, the presiding Judge said to the jury in his charge, that the evidence of a confession ought to be received with great caution, and that the letter purporting to have been written by Crockett was admissible to show the purport of Cobb’s reply, and nothing more. It was impressed on the minds of the jury as strongly as it could be, by the Court, that the letter was not received as evidence against the defendant, and that it could not beso*^ *696considered; that they were to look to the letter in connection only, with the reply of the prisoner, and to enable them to understand the import of that reply.
The statements of a wife in the presence of her accused husband may be given in evidence on his trial, although she could not be a witness against him, and her statements could not be evidence. The Court admits it under the general rule, that whatever is said to a prisoner on the subject matter of the charge, to which he makes no answer, or if an answer, no direct answer. That it is the wife who makes the statement does not vary the rule. Rex. vs. Smithies, 5 Car. & Payne, 332, King vs. Bartlett, 7 Id. 332. It is the reply, partial reply, or failure to reply, that is to be looked to as evidence, and the statement, whether verbal or written, which induces it, is to be no further considered than it is necessary to understand the reply. With this object the letter was properly admitted, no matter by whom written. 10 Geo. 519, 520.
[4.] Then, ought the declarations of the defendant made in the penitentiary, as testified to by Eli McConnell, to have been admitted in evidence, or after having been admitted, ought the evidence of them given in by McConnell, as well as the balance of the evidence of that witness, to have been withdrawn, from the jury, as moved by defendant’s counsel ? The testimony of McConnell is confined to the reception of the letter signed “R. J. Crockett,” addressed to-the prisoner and Jones, the reading of the letter to Cobb, his short interview with him, and his reply, His reply is what is called his confession. The general rule in regard to confessions, and the same rule applies to this case, is, “that a free and voluntary confession by a person accused of an oflence, whether made before his apprehension or after, whether on a judicial examination, or after commitment, whether reduced into writing or not, in short, any voluntary-confession, made by a prisoner to any person, at any time or place, is strong evidence against him.” 1 Phillips Ev. 110 *697The place in which the reply to the letter was given, and the person (the keeper of the Penitentiary,) to whom it was delivered, if voluntarily made, under no improper influence, constitute no legal objection to its admissibility. There is no evidence of persuasion, or of influence exerted to obtain a confession, which promised temporal profit or advantage to the prisoner. But there is no necessity for discussing this point, for in fact there was no confession.
[5.] The only remaining question to be considered is, whether the reply, which was a refusal to confess, ought to have been allowed to go in evidence to the jury? A homicide on the body of Samuel B. Landrum had been committed. Radford J. Crockett, (the name signed in full to the postscript to the, letter) John Cobb, Jr., and Gabriel Jones, stood charged by indictment with his murder. Radford J. Crockett had pleaded guilty. The letter, on the inner side, was addressed to Cobb and Jones; it contains this expression : “ Gabe, I think if you will come out and make a full confession of the murder of Landrum, and look to God for mercy, you would be better satisfied.” The principal keeper of the penitentiary was requested to read the letter to them, and inform the writer what they said, or whether they seemed to want to talk about it or not. General McConnell complied with the request, and received for answer from the prisoner that he would not confess. The guilt of the defendant must be established, if established at all, by circumstantial evidence, and every circumstance, pointing however slightly to his guilt or innocence, should be submitted to the jury for their consideration. When he was appealed to by one, presumptively from the name, who was indicted with him for the murder, to confess his guilt of the particular crime with the commission of which he stood charged, he simply declared that he would not confess, and made no denial of his guilt. The answer ought to have gone to the jury, to have been allowed by them, whatever weight they might have considered it entitled to, as indicating, however *698slightly his guilt. They might have inferred that an innocent man would not have contented himself with a simple refusal to confess, but that he would have accompanied it with a positive denial of guilt. It is our judgment, therefore, that when a defendant jointly indicted for murder, with another who has pleaded guilty to the charge, is appealed to by that other, who must know his guilt, if guilty, to confess the crime, and he simply refuses to confess, but does not deny his guilt, the circumstances may be given in evidence to the jury. They would not alone, perhaps, warrant a conviction, but they are certainly entitled to some degree of weight, and should be considered.
[6.] The next and last ground insisted upon in the motion for a new trial, before this Court, is that the Court permitted the Solicitor General, in his concluding argument, to fsring before the jury the slung-shot, and to speak of it asa witness, when it had been previously offered in evidence, and ruled out. It is not very clear, from the record, that the “ slung-shot” was ruled out as evidence. When it was objected to as evidence, the Court <rejected it as not being such an instrument of evidence as had to be formally tendered and submitted to the jury, as in the case of a deed or a bond ; and when he came to decide the motion to arrest the argument of the Solicitor General, he held, that that, officer might exhibit it to the jury, it having been frequently ex Jhibited and identified in their presence before, and that to allude to it as a witness was a matter of taste. We see no good reason for excluding it as evidence; nor do we think ¡that we should control the presiding Judge in a' matter of that sort, when he heard the evidence, and was the best J udge if the Solicitor General was in contempt, by disregarding, before the jury, one of his decisions rejecting evidence.
[7.] Thomas Calloway was examined as a witness, to prove that the prisoner had described the slung-shot, and that from his description of it he would know it. He testi*699fied that he thought he would recognize it from the prisoner’s description of it. The slung-shot was shown to him, when the defendant objected to his stating whether or not it was the one the prisoner had described. We can see no legal objection to the witness’s answer. He could not, of course, swear to its absolute identity; if he had done so, his evidence might have been the subject of comment before the jury, in the same manner that the testimony of a witness might be asserted who should choose to swear positively to a fact of which he must have been ignorant. But there is no reason why a witness should not give evidence that a particular article which he had heard described, corresponded with the description given.
[8.] The rule laid down by the Court below, in his charge to the jury, on the subject of positive and negative witnesses, is objected to, and error is assigned thereon. The Court said to the jury, that a witness swearing positively to a fact, is to be believed, in preference to many who swear negatively, that they did not see it. The objection is, that the charge applies to the credit of the witnesses personally, rather than to the evidence given by them. This is an exception founded more in a verbal criticism, than in a fault in principle; for if the existence of a fact sworn to positively by one witness, is to be believed, rather than its non-existence, because many witnesses who gave no attention, but were in a situation to observe it, testify that they did not see it, or know that it transpired, which is indisputably the legal principle, what is the difference? Are not the jury bound to regard the testimony given by the witness who swore positively, and disregard that given by the witness who swore negatively ?
We perceive no error in the charge of the Court, in laying down the rule for reconciling conflicting evidence.
We have now gone through the entire case, as insisted on in the argument before us. Many of the grounds in the motion for a new trial were not urged in this Court, for the reason that the presiding Judge refused to certify to the facts *700stated in the rule nisi, and perhaps for the additional reason that counsel for plaintiff in error concluded that they could not be sustained in law. It was rather conceded, that if the points herein decided, were ruled against the plaintiff in error, the evidence was sufficient to sustain the verdict of the jury. We deem it unnecessary, therefore, to go into an examination of it, and we content ourselves with the remark that we are satisfied with the correctness of the verdict upon the evidence submitted.
Judgment affirmed.