A confession is not admissible in evidence unless it -was made freely and voluntarily, and not under the influence of promises ■or threats; but to exclude the confession, the promises or threats must be such as to hold out a hope of some personal benefit, or a fear of some personal injury, of a temporal nature.
' The confession will not be excluded because it was induced by spirit■ual exhortations, by promises of secresy, or by a promise of some collateral benefit or boon ; no hope of favor being held out in respect to the criminal charge against the respondent. Roscoe Cr. Ev. 38, 41, 42, 47; 1 Greenl. Ev. 219, 229; State v. Wentworth, 37 N. H. 218.
In the case before us, Mr. Stanley told the respondent he wanted him to tell the truth and nothing but the truth, and assured him that he should receive no injury from what he should say, but could not promise him he should receive any benefit from it.
So far, there was no promise of favor to the respondent; and the promise that what he said should not be used against him was in substance a promise of secresy, and does not invalidate the confession. Roscoe Cr. Ev. 47, and cases cited; Rex v. Shaw, 6 C. & P. 372; Rex v. Thomas, 7 C. & P. 345; 1 Greenl. Ev. sec. 229.
Mr. Stanley also stated to the respondent that they supposed that he was not the really guilty party, but thought there was somebody behind him, and they wished to get at the real facts so that the really guilty party could be punished ; and suggested that if-he ever testified in the case they should be obliged to get him pardoned for the offence for which he was then confined, but again told him he should make him no promises.
The substance of this communication was that Mr. Stanley wished the respondent to disclose the really guilty person that he might be punished, with a suggestion that if the respondent should ever testify in the case they should have to get him pardoned for the offence for which he was then confined.
The important part of this is the suggestion that he might be a witness against the really guilty party which might naturally open to the prisoner’s mind a prospect of favor to himself. Had Mr. Stanley promised that he should be so used as a witness-in case he disclosed the guilty party, or had he encouraged him to expect it, the confession so obtained ought to be excluded, but it will be observed that on this very point Mr. Stanley told him that he should make him no promises. To invalidate the confession upon this ground, it was necessary for the court to find a holding out or assurance by Mr. Stanley that the prosecution would so call the respondent to be a witness, and this would b,e-substantially equivalent to a promise which he expressly told the respondent he should not make.
If then the judge who tried the cause, in view of all the circumstances-disclosed, with the witness before him, found that these confessions, were-*368not made under the influence of a promise or holding out of favor, we' should not be justified in disturbing the verdict on that acconnt.
This question was one of fact to be determined by the court which tried the cause; so it was held in State v. Pike, Rockingham county, June, 1869. In deciding it the court will take into consideration the age, character and situation of the prisoner at the. time the confession was made; whether he was under arrest for the alleged offence or not; and generally will consider all the circumstances bearing upon the question, whether his confessions were made under the • influence of fear or th'e hope of favor. It is obvious also that what might affect one person greatly, might have no effect whatever upon another. So in weighing the evidence on this point much may depend upon the appearance of the witness who is to testify to the confessions, and his manner of stating what inducements were held out, if any; and from the nature of the case the decision of the court may in many cases be greatly and properly influenced by circumstances in the appearance of the witness or the respondent that could not be reported for the consideration of the whole court. 1 Greenl. Ev. 219.
We are therefore of the opinion that the decision of the court who tried the cause ought not to be reversed unless a case of clear and manifest error is made out; and such is the doctrine of Fiske v. Commonwealth, 29 Penn. St. Rep. 429.
No such a case of clear and manifest error we think is shown here. Indeed the ruling of the court is fully sustained by the carefully considered case of Com. v. Tuckerman, 10 Gray 173, 195. That was an indictment for embezzling the funds of the Eastern Railroad Company, the defendant having been its treasurer. Samuel Hooper, one of the principal directors of that company, was called to testify to the confessions of the respondent: and upon objection that these confessions were not voluntary, he stated that he had an interview with the respondent; that Mr. Reed, who was present, urged him to make a full confession, and told him that the witness had influence with the directors and would see that he was not complained of or arrested ; whereupon the witness told him to stop there ; that he neither could or would make any promise : that he had no power to bind the directors ; that he had no vindictive feelings against the respondent, and he must confide in him to do what was right; that he, (the witness), neither knew what his power or duty was, or what was right to do ; that respondent was reluctant to speak for a good while, and Reed tried very hard to persuade the defendant ; says he (witness), told him he had not the power, was only one of the directors, and did not know what was proper and right for him to do; told him he had not the power, but had no vindictive feeling and would do all in his power that he properly could do to prevent his arrest, or any proceedings by the directors. In about half an hour respondent seemed to change and make up his mind, and he made a general statement of his defalcations.
The court hold the confessions admissible, sayingr "Not only were no promises of favor made, but the defendant was repeatedly warned? in substance, that none could or would be made, and. that he must de*369cicle for himself whether to disclose or not; and the court hold that there is no reason to suppose that his disclosure was under the influence of a promise of favor, but rather in the confidence entertained in his own mind, that it would mitigate the resentment or disapprobation of those whom he had injured.
In Fife v. Commonwealth, 29 Penn. St. Rep. 429, where several persons were charged with an offence, and the jailor told one of them after her arrest that if the commonwealth should use any of them as a witness he supposed it would prefer her to cither of the others, and she afterwards on the same day confessed to the magistrate, who told her it might be used against her, it was held that the confession was admissible ; that there was no promise but amere statement of an opinion ; and that the question was one of fact for the court to decide.
See also Com v. Morey 1 Gray Rep. 461, where a person told a prisoner that he thought it better for all concerned in all cases for the guilty party to confess, though he supposed it would make no difference as to legal proceedings, but it was considered honorable to confess if guilty. It was held that the confession was properly admitted.
In the earlier cases there has been much conflict upon this subject resulting in some degree from failing to recognize the question to be largely one of fact alone, to be determined upon a consideration of all the circumstances of the case. Instead of which some of the cases seem to have given to particular expressions a technical character and to have excluded the confessions, where upon a consideration of all the circumstances it would not have been found, as matter of fact, that the confessions were made under the influence of hope or fear held out by another.
In view of this tendency, and the consequent conflict, that eminent judge, Baron Parke, in Regina v. Baldry, 12 Law & Eq. 590, remarks : "I confess that I cannot look at the decisions without some shame, when I consider what objections have prevailed to prevent the reception of confessions in evidence; and I agree with the observation of Mr. Pitt Taylor that the rule has been extended quite too far, and that justice and common sense have too frequently been sacrificed at the shrine of mercy.” A somewhat similar view is expressed by Chief Justice Parker, in State v. Howard, 17 N. H. 181, saying "we are by no means satisfied that judges, in their anxiety to preserve all the rights of the accused, have not gone further in excluding confessions than the principle required them to do.”
The case here stands much like the finding of the jury on a question of fact; and we are not aware of any reason why it should not be so. Whether the confession of the prisoner was voluntary or not is purely a question of fact; as much so as the question whether a witness offered to testify was interested or not, or whether a witness was qualified to testify as an expert, or whether the loss of a paper has been shown so as to allow the introduction of secondary evidence of its contents. In this and the like cases, the judge who tries the cause must decide, although in some instances he may submit the question of fact to the jury.
In either case, whether the decision be by the judge alone, or it be also passed upon by the jury, no exception lies so far as the question is *370one of fact. If, however, upon the evidence reported by the judge, it clearly appears that there was error in his finding upon the matter of fact it may be corrected as in other cases where a verdict is against evidence.
Upon these views we think there is no error in the admission of the respondent’s confessions, and
The exceptions are overruled.