The plaintiffs in error were indicted for the murder of one *1215Landrum, -with James Hightower and Lemuel Lynes, the said Hightower as principal; Thomas M. Lynes, for aiding and abetting the murder at the time; and Thomas and Lemuel Lynes, as accessories before the fact, by inciting and procuring the commission of the offense.
■ The record before us relates only to the trial of Thomas M. Lynes and Thomas Lynes, who were convicted and sentenced, after a motion for a new trial made and overruled, to be hanged. . A bill of exceptions appears in the record, presenting the testimony and all the proceedings on the trial; and it is assigned for error here — ■
1. That the court erred in admitting certain copies of deeds, which were not proven and certified for record according to law.
This objection, although properly taken in the court below, and although it should have been sustained, and the deeds excluded, for want of authentication to admit them to record, and thereby to make them evidence, is not material here, as the same fact was proven by the confession of Thomas Lynes, and by other testimony.
2. It is next assigned for error, that the court admitted the confessions of Thomas Lynes.
We think there was no error in this, under the circumstances before us.
3. The court erred in admitting the statements of Hightower made to witness, Susan B. Landrum, after the hilling, as evidence to implicate the other defendants.
The 4th and 5th assignments may be embraced under this general head:
The ground of error is well taken. It is well settled that, even after the conspiracy has been established, admissions of co-conspirators are inadmissible to affect their associates, unless made during the progress, or in furtherance of, or in prosecution of the unlawful design, about which they have conspired. The confession of Hightower, so far as it was introduced to establish the fact that he was the perpetrator of the crime, was competent; but so far as it tended to implicate others was incompetent, and should have been excluded from the jury.1
*1216In cases purely circumstantial, it is impossible for the court -to determine, what influence the testimony may have produced upon the minds of the jury.- We deem it safe, as a general rule, to .leave to the jury disputed questions of fact; and, therefore, when evidence has been improperly admitted,'which may-have materially operated in producing conviction, even in cases where our own minds might incline, to sustain the verdict upon the testimony that was. legal, the case will, be reversed, that the appropriate tribunal may pronounce upon the real facts in dispute ; .-'and only in cases, where the illegal testimony could not have changed the result, will this court refuse to set aside the verdict and judgment, and award a new trial.
We. do not-intend to. express any intimation as to what should or.ought to have been the verdict of the jury without the illegal ■evidence; we only intend to say that this evidence ought to have been excluded; and it will be for the jury to whom it be hereafter submitted to say whether the evidence which shall be adduced before them satisfies their minds, of the guilt of the accused beyond reasonable doubt.
The 6th assignment of errors is the refusal of the court to give the 1st, 2d, 3d, 4th, 5th, and 6th instructions ashed for plaintiff •in error.
The first of these instructions, as also the third, fourth, and sixth, should have been given; the second and fifth-were properly refused.
Let the judgment be .reversed,, cause remanded, and a venire dé novo awarded.
1 Greenl. Ev., 111; Rex v. Watson, 32 Howell’s St. Tr., 7; Rex v. Brandreth, ib., *1216857, 858; Rex v. Hardy, 24 ib., 451, 452, 453, 475; Am. Fur Co. v. U. S., 2 Peters, 358, 365; Crowninshield’s case, 10 Pick., 497; Rex. v. Hunt, 3 B. & Ald., 566; 1 East P. C., 97, § 38; Nichols v. Dowding, 1 Stark., 81; 3 Greenl. Ev., 94; Regina v. Murphy, 8 C. & P., 297; Regina v. Shellard, 9 C. & P., 277; Rex v. Hardy, 25 St. Tr., 1; Roscoe Cr. Ev., 384, et seq.; Wharton Am. Cr. Law, 702; U. S. v. Hinman, 1 Baldwin, 292; Martin v. Com., 11 Leigh, 745; U. S. v. Goodwin, 12 Wheaton, 469; Glory v. State, 8 Eng., 236; Stewart v. State, 26 Ala., 44; Cornelius v. Com., 15 B. Monroe, 539; Waterbury v. Sturdevant, 18 Wend., 353; State v. Poll, 1 Hawks, 442; State v. George, 7 Iredell, 321; State v. Loper, 14 Shep., 293; Malone v. State, 8 Geo., 408.