dissenting. — The evidence offered at the trial, of the declarations made in jail by the slave Sam, at first impressed me much in the same manner as it did the court below, but further reflection has convinced me, they should have been left to the jury, in connection with the other circumstances. The effort of the prisoner was to show such a condition of facts and circumstances as to create the impression on the minds of the jury, that Sam, in point of fact, was the murderer, the evidence against himself being, as stated, entirely circumstantial. I appre hend, although it may be true, that the confessions of a third person of his guilt, is not evidence in favor of another when standing alone, and unaided by other facts or circumstances, yet that it is so, whenever the party confessing is connected with the crime by strong presumptive circumstances. An illustration as apt as any may be drawn from the circumstances of this case.
If the facts and circumstances in proof, pointed equally to the pi’isoner and Sam as the guilty individual, can it be supposed for a moment, that the confession of the one thus applying all the circumstances of the case to himself, might not be evidence for the other — not as declarations of his innocence, but as showing a condition of facts inconsistent with his guilt. I do not understand the decision in Commonwealth v. Chubbock, 1 Mass 144, as holding that confessions of guilt may not in some cases be given in evidence, but only that mere declarations will not be evidence. In Cowen & Hill’s Notes, 703, the attempt of the writer is to controvert a position assumed by Mr. McCord in a note to a case reported by him, that confessions of guilt by third persons may *998always be given in evidence. He goes no further than to con' trovert the general position, and says the confession would no"be strengthened by the surrender of the party making it, as it ye would be liable to suspicion, inasmuch as the confessing party might afterwards disprove it. But when the other facts and circumstances connect the party with the act, and the confession is made under circumstances which repel the suspicion of any motive, I can see no reason why a doubtful crime may not be thus fixed on the confessing person, though the fact of that confession may tend to exculpate another, to whom the circumstances equally point as the guilty person. But it is said there' was no confession here, to charge Sam ; true it is not a confession in terms, but when the attending facts are looked to, there is some ground at least to make it proper to go to the jury, for them to determine whether it is sufficient to enable them to say it was an admission of his own guilt. It seems to fall within that class of presumptive evidence which grows out of the acts of a party when charged with the transaction. [Best. Pres. Ev. 325, § 251.] A somewhat curious case in illustration of the rule is given in Willis on Circum. Ev. 101.] An individual was suspected of a robbery, after a lapse of four years, and an officer was gent to make the arrest, tie asked the accused, without informing him of the object of the inquiry, where he resided three years past, and received a direct answer, but when he immediately afterwards inquired where the party resided four years before then, the individual fell down in a swoon. There is, I think, no rational doubt that facts like these, and confessions or declarations which connect themselves with the circumstances attendant upon the crime, are proper evidence, whether to prove guilt upon the guilty, or the innocence of others, by showing where the guilt lies. On this point I think the court erred, and therefore dissent from the opinion just pronounced.
Note. — The prisoner was pardoned by the Executive.