1 I concur in the result. The statements said to have been made by. the prisoners and taken down in writing by the coroner were improperly received as evidence. They were in no sense confessions, but amounted to nothing more than crimination and recrimination of each other. While it is quite true that it is competent to show that the accused has made contradictory statements as to the matter under inquiry, as a circumstance in aid of other testi-timony tending to show his guilt, yet when there is no other testimony tending to fix guilt upon the accused, it seems to me that the fact that the accused has made contradictory statements in regard to matter not directly connecting him with the crime charged, such statements are entirely irrelevant, and are, there*534fore, incompetent. In this case it does not seem to me that there was any such testimony, except the simple fact that the deceased was last seen in company with the prisoners, who, when asked: “Where was Charley Jenkins, they replied that they did not know. After a while one of them said Charley Jenkins had gone towards the camp, complaining of a headache,” but ivhich one made that remarle did not appear ; and that they both continued to deny any knowledge of what had become of the deceased, Jenkins. While, therefore, it might have been competent to introduce evidence that the prisoners, after having made these denials, admitted that they had seen Jenkins when he was drowned, it certainly was not competent to admit the statement of Smith that he' had seen Carson take the life of the deceased, or the statement of Carson that ho had seen Smith commit the fatal deed; for that was nothing more than hearsay evidence, upon which there is great reason to fear that the verdict of the jury was based.
2 I am not, however, prepared to assent to the doctrine that this court has the power to review and reverse the finding of the Circuit Judge, that a given confession was made freely and voluntarily ; for that presents a question of fact, of which this court cannot take jurisdiction, which must necessarily, in the first instance, be decided by the judge in order to determine its admissibility; but when admitted, it is for the jury to say whether they believe that the confession was free and voluntary, and accept or reject it accordingly, unless they are otherwise satisfied that it is really true.
Me. JustiCe Pope concurred in the result.Judgment reversed.