The opinion of the court was delivered by
Mr. Chiee Justice SimpsoN.The appellant, Ike Moorman, was indicted for arson. He was convicted at the March term of the court for Union county, 1887, and was sentenced by his honor, Judge Aldrich, to ten years at hard labor in the penitentiary. From this judgment he has appealed to this court, alleging error to the rulings and charge of his honor. His appeal is grounded upon nine exceptions. The main points involved, however, are but two, to wit: 1st. That certain confessions made by the defendant should not have been allowed to go to the jury under the circumstances surrounding him when they were made. 2d. That his honor violated art. 4, sec. 26, of the Constitution in intimating his opinion to the jury on the effect of the facts proved in certain particulars.
The law in reference to the competency of confessions is correctly stated in appellant’s argument. They must be free and voluntary. See case of State v. Kirby, 1 Strob., 378. They must not be made under the influence of hope or fear, and should always be received with great caution. For, besides (as is said by Mr. Greenleaf) the danger of mistake from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, the situation of the prisoner, oppressed with his calamity, should not *27be forgotten, nor the zeal of those seeking to detect the offender. Subject to these cautions, however, it is admitted that a deliberate confession affords the highest evidence of .guilt. But before any confession is received it should be shown that it was voluntary — that it was free from any inducement, addressed either to his hope or his fears; ■ and this is a preliminary question for the court, who admits or rejects it, as he may or may not find it to have been drawn from the prisoner by the application of improper motives. In other words, before a confession can go to the jury, the question of its competency must, first be determined by the judge, and to that end the usual practice is to inquire of the witness whether the prisoner had been told that it would be better for him to confess, or worse for him if he did not confess, or whether language to that effect had been addressed to him. 1 Greenl. Evid., § 219. But at last this matter is left very much to the discretion of the judge upon all the circumstances of the case, the rule of law in all cases demanding that he shall see to it that the confession, before it is held competent, shall have been made voluntarily without the appliance of either hope or fear.
It appears that confessions of the prisoner here tvere testified to by some five witnesses, to all of whom, except the witness Pennington, questions were propounded whether any inducement was held out, or any threat made, or anything said to induce him to believe that it would be better for him to confess, and worse if he did not, all of them answering positively in the negative. The conversation with Pennington was very short, it occurring while he had stopped with the train ; and it is apparent that he held out no inducement of any kind to the prisoner. Under these circumstances we cannot see that the discretion of his honor was at fault in admitting the testimony. But even after the confessions were admitted, he left it to the jury in his charge to discard the evidence if they believed that the confessions were extorted from the prisoner. Although he had held them competent, because in his judgment they were voluntary, yet he charged that whether said confessions were voluntary, or were the result of fear, was a matter for their consideration, and theirs alone. This, perhaps, was not in accord*28anee with strict law, yet it was an error, if error it be, of which the prisoner could not complain, as it gave to the jury the right to disregard in favor of the prisoner, as incompetent, testimony which he had already pronounced competent.1
We do not see that his honor charged the jury upon the facts in violation of the inhibition of the constitution on that subject. He stated interrogatively what some of the witnesses had said, and he may have been mistaken in saying that Pennington had been sent for by the prisoner, and that he was not tied at that time. Admitting this, yet this was not such an error as would demand a new trial in the face of the other testimony in the ease, as he neither expressed or indicated any opinion as to the truth of the confessions, or the testimony of the witnesses on that subject. On the contrary, he distinctly charged that the case was one of fact, and that the law made them the sole judge of such a question, and that the law did not permit him to assist them.
There, was no request made that the judge should charge any special proposition of law. Therefore the 9th exception is not before us.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.
This case was peculiar. Nothing passed between the defendant and the witnesses for the prosecution, to exclude the confessions. But if the defendant and his witness testified truly, then a most outrageous device was pursued by certain unknown parties to excite the prisoner’s fears and to extort a confession of guilt. While, therefore, the judge did not err in admitting proof of these confessions, what was the proper course for him to pursue when the defendant’s testimony was given ? He must either have ruled out the confessions in evidence, or else instructed the jury that if they believed the confessions were not voluntary, but made under the influence of previous intimidation, to disregard them. He adopted the latter course. If the other course was proper, defendant’s counsel should have moved to that effect. — Reporter.