The trial court, after hearing all the testimony as to the circumstances attending the declarations or admissions of the accused, finds that they were made freely and voluntarily, and that the defendant was not induced to make them by any threats, promises, or inducements made to him by any one. This finding is upon a preliminary question of fact; the conclusion is drawn from conflicting testimony and may be correct or incorrect according to the credit given to witnesses.
We cannot review such a finding. Whether under these circumstances the declarations should have been excluded, on the ground that they were of little weight or liable to be untrue, or that their admission would be on the whole unfair to the prisoner, was a matter of discretion with the trial court, and its exercise is not ground of error unless this court can see plainly that the discretion was abused. In view of all the circumstances detailed at length in the finding of facts, we do not feel justified in saying that the discretion was so abused. This subject is fully considered in the recent case of State v. Willis, 71 Conn. 293, and that decision governs the present case. *Page 728
Stress has been laid on the fact that shortly after the prisoner's arrest he retained and had an interview with counsel, and for the following three days the bailiff in charge refused every one (including the counsel) who had not obtained permission of the State's Attorney, access to the prisoner, and that the applications of counsel for a further interview were denied until he was able to find the State's Attorney. The trial court has found that notwithstanding this the declarations were voluntary. This conclusion is not necessarily inconsistent with the evidence; there may have been no relation between the conduct of the bailiff and the voluntary character of the declarations, the inference to be drawn depending largely on the judgment of the court as to the apparent character and credit of witnesses. The action of the bailiff, however, would seem to have been wrong, and to call for investigation from his superior officer. A prisoner before trial is in custody of the law for safekeeping. The sheriff is responsible for that, and may regulate and limit access of outsiders so far as may be necessary, under the circumstances of each case, to the security of his prisoner and the proper management of the jail; but he should at reasonable times and under reasonable conditions permit the free access of counsel to his client, and this duty may be enforced.
As a general rule, the mere bald admission of guilt resulting from conversations with detectives or officers in charge, is not by itself of controlling weight. The inference that one not guilty of the particular offense charged would not make such an admission under such circumstances, is by no means always clear; the weight and significance of such admission depends on the nature of its connection with the facts proved. The trial court, under our practice, may properly exclude an admission of this kind, if deemed of little weight, although our policy has more recently drifted towards a larger trust in the jury's discrimination in respect to the weight of relevant testimony, as in the case of parties in interest. Possibly in the present case the court might properly have excluded the fact that the accused had made these declarations, as under all the circumstances entitled to no *Page 729 very great weight, and unfair to the prisoner; although in truth the conduct of the accused as thus shown rather tended to prove his main contention — that of insanity. But the power of the trial court in the reasonable exercise of its discretion to submit to the jury the weight of such relevant conduct, with all its attendant infirmities, is clear, and its action is not a reviewable error.
There is no error in the charge. The meaning of our statute defining murder in the first degree, as enacted in 1846, has not been changed by subsequent legislation. It does not define a new crime, nor in any way affect the definition of the crime of murder as it before existed; it simply sets forth the circumstances attending the crime which must determine the punishment of murder, whether it shall be death or imprisonment for life. State v. Dowd, 19 Conn. 388.
The common-law murder is deemed murder in the first degree, when perpetrated in the commission of the crime of rape. By our common law an unlawful homicide perpetrated in the commission of another crime of the nature of felony, is murder; if that other crime is rape, the statute deems the murder to be in the first degree. The Act says, in substance, that murder with express malice is murder in the first degree, but with implied malice is murder in the second degree, except those enumerated cases of murder with implied malice which are expressly made murder in the first degree. Smith v. State,50 Conn. 193, 197; State v. Hamlin, 47 id. 95. The construction contended for in behalf of the defendant is strained, and inconsistent with the evident purpose of the Act. The passage cited from Dr. Wharton's work on criminal law, indicating a different view, is not applicable to our statute, under our decisions.
The admission of the testimony of the witness Mead is not error. He had stated the time he had known the prisoner, the frequency and nature of his interviews and the topics of their conversations; under these circumstances the court might admit his opinion — based on his knowledge and acquaintance as detailed — that the accused was of sound mind.Dunham's Appeal, 27 Conn. 192, 198; Sydleman v. Beckwith, *Page 730 43 id. 9, 13; Shanley's Appeal, 62 id. 325, 330; Chamberlain v. Platt, 68 id. 126, 130.
The exclusion of the inconsequential question put to the juror Curtis, is not error. Undoubtedly a party may question jurors for the purpose of obtaining information necessary to the intelligent use of his right of peremptory challenge; but the questions must be pertinent and proper for testing their capacity and competency, and the trial court has some control over the character and extent of such examinations.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.