— The indictment is for a capital offence, and was found in the Circuit Court of Perry, against the plaintiffs in error and divers other slaves. The trial of the plaintiffs in error, on their application, was removed to the Circuit Court of Bibb, under the provisions of sections 3608 to 3616 inclusive of the Code. These plaintiffs have been in actual confinement ever since the indictment was found. When they were brought into the Circuit Court of Bibb for trial, they objected to going to trial, “ on the ground that a copy of the indictment had not been served on them or their counsel two entire days before the trial.” But it being shown to the court that a copy of the copy of the indictment set out in the transcript sent up by the clerk of the Circuit Court of Perry was delivered by the clerk of the Circuit Court of Bibb to the counsel of the plaintiffs in error at the preceding term of the Circuit Court of Bibb, the court overruled the objection, and the plaintiffs in error excepted.
If the ground of objection had been, that a copy of the indictment had not been delivered to them two entire days before the trial, and no other proof of delivery had been adduced than that above shown, we should, without hesitation, have reversed the judgment; for the right is conferred, by section 3576 of the Code, upon every person indicted for a capital offence, if he is in actual confinement, to have a copy of the indictment delivered to him at least two entire days before the day appointed for his trial.—The United States v. Curtis, 4 Mason’s Rep. 232; Smith’s Com. on Stat., pp. 685-6. But our duties as a court for the correction of errors committed by inferior tribunals aro defined by law, and confine our examination to the action of the court below upon the objection as there made. We cannot allow to the prisoners the benefit
The rule is, that we can indulge no presumption adverse to the correctness of the action of the primary court, but must make all intendments in its favor not inconsistent with the record.—Morris v. The State,
When the trial of such a case as this is removed, as this was, section 3615 of the Code provides, that the prisoners “ must be tried on the copy of the indictment ”, certified in the manner directed by section 3613. In such case, the copy so certified becomes so far an original, in the court to which the trial is removed, that a copy of such copy when delivered to the prisoners will have all the effect that a delivery of a copy of the actual original could have.
The record shows, that, “ on re-examination, said Pool testified, that he had testified to the substance of all that each of said defendants stated on that occasion, but that they may have stated something that he did not recollect.” This was as much as the law exacted, to entitle him as a witness to
In the first place, we shall state the general rules which should govern the judge in deciding upon the competency — * the admissibility of confessions.
Before any confession can be received in evidence, in a criminal case, it must be shown that it was voluntary — that is, that it was made without the appliances of hope or fear, by any other person. Whether it was so made or not, it is for the judge (before he admits it) to determine, upon consideration of the age, condition, situation and character of the prisoner, and the circumstances under which it was made. The material inquiry is, whether the confession has been ob* tained by the influence of hope or fear, applied by a third person to the prisoner’s mind.—1 Greenl. Ev., §219; Wyatt v. The State,
But all the foregoing must be taken subject to the qualification necessarily implied from the existence of a certain other well-settled rule, in substance as follows: Although, by the flattery of hope, or by the torture of fear, information has been obtained from the prisoner, yet, if in consequence of such information so obtained from him, the body of the person murdered, or any other material fact, is discovered, it is competent to show that such discovery was made conformably with the information given by the prisoner, and to show that he stated that the thing -would be found at a particular place, and to prove that it was accordingly so found ; for the statement as to his knowledge of the place where the body or other evidence was to be found, being thus confirmed by the fact, is proved not to have been fabricated in consequence of any inducement or influence. And this coincidence between his statement and
Where promises or threats have been used, yet, if it appear to the satisfaction of the judge that their influence was totally done away before the confession was made, the evidence will be received.—1 Greenl. Ev., § 221.
In the next place, we shall state the rules which should govern the parties and the jury^ after confessions have been admitted by the judge. —
Whenever-a confession is admitted by the' court, the jury must take it: they cannot reject it as incompetent: they are confined to its credibility and effect.
Either party has the right to prove to the jury the saple facts and circumstances which were legally proved to the court when it was called upon to decide the question of competency, and all other circumstances applicable to the- confession or having any legal bearing on its credibility or effect; and if, in view of all the facts and circumstances proved, the jury entertain a reasonable doubt as to the truth of the confession, they may disregard it, in their decision of the case, as being incredible, although they cannot reject it as incompetent. The Commonwealth v. Dillon,
The rules above laid down recognize the sphere of the judge and the sphere of the jury as distinct; and, whilst they prevent the jury from invading the province of the judge, they alike prevent him from invading their province. These rules, also, preserve the great safeguard thrown around every person chai’ged with crime — the right to claim at the hands of a jury the benefit of every reasonable doubt arising from the evidence.
In my opinion, the prison<SPS"'h'aving objected to the confessions, as being elicited by a question assuming their guilt, viz., “ What part did you take in the murder ?” and this objection having been overruled, and the confessions admitted in evidence, the objection and motion to exclude immediately following — namely, “to these confessions, thus obtained,” &c.,— refers to their being obtained as previously stated by the preceding objection — that is, in answer to what the counsel .supposed to be an improper question assuming their guilt. I think the bill of exceptions fairly admits of this construction, and as it sustains the judgment, (Carroll v. The State,
The fifth charge asked is liable to another insuperable objection : it assumes it to be law, that although the prisoners may have been parties to the plot to kill the deceased, and although they may have been present, aiding and abetting and encouraging Wash and George in the murder, yet, if Wash and George did the killing, and were not parties to the plot, the prisoners must be totally exonerated from the guilt of the murder, merely because Wash and George were not parties to the plot.
Upon these facts, we hold that the jury were not discharged, in legal contemplation, by the occurrences which transpired in the absence of the prisoners. The observation of the court to the jury, that they were discharged, was revocable by the court for a time, and was revoked in due time. The revocation was in time, because it was almost instantaneous and whilst the jury, as a body, were still continuing to be in the bar, and in the presence and power of the court. This revocation being in time, we think the court had the power to return the papers in the cause to the jury, and to do what it then proceeded to do. Such a course of proceeding did not deprive the prisoners of the right nor the opportunity to examine the jury by the poll. There is nothing sound in the argument that the right to poll was prejudiced by the fact that the verdict had been previously read aloud in court; for
Wc have carefully deliberated upon every question presented by the record, and the result is, that while I think the judgment and sentence should be affirmed, my brethren believe there is error in admitting the confessions ; and for that error the judgment and sentence pronounced in the court below must be reversed, and the cause remanded.