Opinion by
Mb,. Justos Fell,Generally where a confession of guilt has been obtained from a prisoner by undue means it will be inferred that a confession of the same or like facts afterward made by him was induced by the same influences; and evidence of a second confession will not be received unless from the length of time intervening, or from proper warning of the consequences of confession or from other circumstances it appears that the influence which led to the first confession has been entirely removed: Wharton’s Grim. Ev. sec. 667; 1 Greenleaf on Ev. sec. 221. But no general rule can define the facts which in all cases should be deemed to have influenced the mind of the prisoner, as matters which would readily affect the mind of one person would have no influence upon that of another. The age, character and situation of the prisoner, and all the circumstances under which the confession was made, are to be taken into consideration, and the question whether the original influence continues to operate must be left largely to the discretion of the trial judge, who hears the testimony, sees the witness and observes the conduct of the prisoner.
*77In this ease the first confession was made after the prisoner’s arrest, to a detective, who asked him to make a full statement and promised that if he would do so he would befriend him. Evidence of this confession was not offered. The confessions of which evidence was admitted were made the next day; one to the editor of a newspaper, who knew the prisoner and told him that he had called to get any statement which he might care to make for publication; the other to the employer of the prisoner, who had gone to see him because of a friendly interest. Neither of these persons said a word to induce the prisoner to confess, and no reference was made to his previous confession if they knew of it. The sheriff was present when the first two confessions were made, but not at the third. On neither occasion did he speak to the prisoner, nor did the prisoner speak to him. He acted as a jailor merely in admitting the parties. These confessions were entirely voluntary, and had no connection in thought with the first confession, and we see no reason to believe that they were made under the influence of a hope of personal aid which had been excited by the detective. The evidence was therefore properly admitted.
The second question raised by the assignments is whether the instructions as to the power and duty of the jury to ascertain the degree of the crime were incorrect or inadequate. The undisputed evidence was that the killing had been committed in the perpetration of robbery. The defense was insanity. In the course of the charge the learned judge read to the jury that part of section 14 of the act of March 31, 1860, which makes such a crime murder of the first degree, but omitted to read that part of the section which makes it the duty of the jury to ascertain the degree. The part read is as follows: “ All murder which shall be perpetrated by means of poison or lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree.” The part omitted is: “ And the jury before whom any person indicted for murder shall be tried, shall if they find such person guilty thereof, ascertain in their verdict whether it be murder of the first or second degree.” In the *78charge it was said: “ The commonwealth contends that Glessner’s death resulted from a beating at the hands of the defendant to rob him of his money. If that fact is established by the evidence in this case beyond a reasonable doubt, and it is found that the defendant was at the time responsible for his acts, he should be convicted in the first degree; because in such case the law makes no provision for a verdict of a lower grade.”
This instruction was in substance repeated several times and the jury were not at any time distinctly told that they had the power to ascertain the degree, and the court was not asked so to instruct them. No question as to the degree of the crime was raised at the trial. The jury returned a verdict of “ Guilty in manner and form in which he stands indicted.” They were sent back with this instruction: “ Gentlemen, we will ask you to retire and specify the degree in your verdict. It is a general verdict; you must state the degree. A verdict of ‘ Guilty in manner and form in which he stands indicted ’ could not be received, so you will retire to your room again and state the degree. The indictment is for murder generally, but the jury must state the degree in which you find the defendant guilty.” They then returned a verdict of “ Guilty of murder of the first degree.”
While the statute defines the degree, it is made the exclusive duty of the jury by their verdict to ascertain it, and fit is the right of the prisoner to have it ascertained by them. In Rhodes v. Com., 48 Pa. 396, it was held to be error to instruct the jury that if they found the prisoner guilty they must state in their verdict that he was guilty of murder of the first degree. But it was said in the opinion that it would not have been error to have instructed them that the crime proved was murder of the first degree; the error was in compelling them so to find. This ruling was affirmed and followed in Lane v. Com., 59 Pa. 371, but it was said by Thompson, C. J. “ . . . . nor are we to be understood as finding fault with the practice which is entirely proper of judges freely advising jurors as to the duty of ascertaining that degree of murder toward which the facts seem to point, always leaving them however free to deliberate upon, and the duty and responsibility of finding the degree, if they convict.”
In Shaffner v. Com., 72 Pa. 60, the instruction assigned for *79error was : “ If the prisoner is guilty there can be no difficulty in ascertaining the degree, for being by poison it must be in the first degree, if purposely administered;—if you are convinced he is guilty of the crime, it is murder of the first degree as fixed by the act of assembly, and it is your duty so to say without regard to the consequences to the prisoner.” This was said to approach the boundary line of peremptoriness, but not to be error. In McMeen v. Com., 114 Pa. 300, the jury were instructed: “ If the defendant murdered his wife by means of poison it would be murder in the first degree, and the jury needs neither definition nor instruction in regard to any other kind of homicide. If you find the defendant sent the poison to his wife with the intent to take her life, then the law says that is murder in the first degree, and you should say so in your verdict. If you fail to find such guilty intent then acquit the defendant.” This was held to be a correct instruction. In these cases and many others the distinction is drawn between a proper statement of the law and a binding instruction to the jury which takes from them the ascertainment of the degree. An imperative instruction which takes from the jury their right to ascertain the degree is erroneous, but one which points out to them their duty under the law, but leaves them free to act, is not erroneous.
There was then no error in the instruction given, and we need only consider whether the charge was inadequate in not informing the jury of their power in fixing the degree. That part of the 74th section of the act of 1860, which defines murder of the second degree was read to the jury; and after having returned a general verdict they were sent back to fix the degree, and distinctly told that they must state in their verdict the degree of which they found the prisoner guilty. If the whole of the section had been read it is conceded that no further instruction would have been required, and the only ground of the exception is that it was not all read. The jury were told all that the omitted part of the section contains, and they would have known no more of their power in the matter if it had all been read. They were informed by the part read that there were two degrees of murder, and after returning a general verdict of guilty they were instructed to state in their verdict the degree of which they found the prisoner guilty. In this instruction *80no mandatory direction having been given, their power to fix the degree was necessarily implied.
The real ground of defense was the insanity of the prisoner and under the undisputed evidence the verdict should have been either guilty of the first degree or not guilty on the ground of insanity. The case was so treated at the trial. There was no suggestion in the points for charge that there could be a verdict of the second degree. If more specific instructions were desired they should have been asked for. "Where the evidence shows unmistakably that there should be a conviction of the higher degree of murder, or of murder instead of manslaughter, the omission of the court to give instructions as to the lower grade when not requested to do so, has been held not to be error, if the jury have been left free to fix the grade of the crime: Brown v. Com., 76 Pa. 319; Nevling v. Com., 98 Pa. 322; Clark v. Com., 123 Pa. 555; Com. v. Crossmire, 156 Pa. 304; Com. v. Hollinger, 190 Pa. 155.
The judgment is affirmed, and it is ordered that the record be remitted to the court of oyer and terminer of Somerset county in order that the sentence may be carried into execution according to law.