The questions in this case are the sufficiency of the indictment, the admissibility of the rejected evidence and the competency of the admitted evidenee.
The indictment presents the statute ingredients of the offence of perjury, and the exception to its form is not sustained by law.
The rule of English and American law, unlike that of civil law, excludes confessions which are not voluntary, on the principle that no one shall be made to convict himself, by torture or otherwise. This rule excludes confessions wherever the slightest inducements by cpersons in authority had been held out, unless it be shown that their influence was removed. The rule was extended to cover inducements made in the presenoe of persons in authority under their implied sanction, by the complainant or his wife, by a surgeon or chaplain in attendance, and generally by persons whom the accused might regard as having authority. Com. vs. Morey, 1 Gray, 263; Com. vs. Curtis, 97 Mass., 578; Rex vs. Upchurch, 1 Mood. Cr. Cases, 464; Rex vs. Luckhurst, 22 E. L. & E., 606. The admissibility of the rejected evidence in this case seems to be within this extended rule, and also within the rule laid down by this Court in Banco, in the Paakaula case, at a special term in March, 1867, viz.: “The Court will rigidly exclude all testimony of confessions if made in consequence of a previous threat or promise by a person who may be supposed to have some authority or influence.” The officer in Court, but not in charge, may have been regarded by the prisoner as having some authority.
*316The admission of this evidence, and of evidence of any facts or circumstances which may tend to influence a confession, seems to me to be correct in principle also. The private inducement may or may not have as much effect as the official; but it cannot be deemed immaterial in any case in which it may effect the significance of the confession. An assurance of advantage from an intimate friend of the judge may have no legal effect, but no one can say that it may not determine the prisoner’s course. The English Courts have regretted that they are bound by their 'precedents to give any conclusive effect to official inducements, and say thus: “ Perhaps it would have been better to have held that in all cases a judge was to decide upon his own view of all the circumstance's, including the nature of the threat or inducement, and the character of the persons holding it out.” Per Parke Baron, in Reg. vs. Moore, 12 E. L. & E., 586. The exception, on the point of the rejected evidence is therefore good in law.
The confession was in evidence before the jury, and no request to exclude it on account of the subsequent evidence was made. The Court that tried this ease knew material facts not before us, concerning, the appearance, intelligence and maturity of the prisoner, — facts which have much to do with the probable influence of inducements. They did not see fit, unasked, to instruct the jury to disregard the confession. This exception is therefore not sustainable.
Verdict set aside, new trial ordered.