George, J.,
delivered the opinion of the court.
The plaintiff in error was indicted for the murder of one Jack Fox, and convicted and sentenced by the jury to impris*352oument for life in the State penitentiary. He asks a reversal of the judgment on the ground that the court improperly admitted in evidence his confession. The assignment of error is based upon a special bill of exceptions taken during the progress of the trial, there being no' motion for a new trial. A witness, L. E. Wilson, who was sheriff of the county, was introduced by the State, and testified that on a named Sunday in July, 1879, he went to the jail with Mr. Watson, who wished to see the prisoners, or some of them, and that he and Watson went into the cell in which the accused and another colored man, Powell Brown, were confined; that soon after speaking to the prisoner, Powell Brown said that “Abe Jones wanted to make a statement to the sheriff [witness] ; that his father had sent him word that if he knew anything about the killing of Jack Fox, it would be best for him to tell the whole truth.” Witness replied that “the accused need expect nothing from him, if he did tell what he knew; that if he did it, it must be voluntary on his part;” that Mr. Watson said something to the accused about its being best for him to tell the whole truth, and urged him to do so. The accused then made a statement, in which he recounted his connection with the killing of Fox, but witness said he would call again and see the accused the next day, when he could tell witness what he pleased, and witness would write it down. Witness and Mr. Watson then left the jail. Here, as the bill of exceptions recites, the prisoner moved the court to suspend the trial, and give time for Mr. Watson to be had, in order that he might be examined as to what occurred at the jail on the occasion referred to by witness Wilson — affirming, through his counsel, that he was influenced by said Watson in making the confession, the said Watson assuring the accused that it would be best for him to tell the whole truth. It was further stated by his counsel that Watson resided within seven miles of the court, and that the accused had been taken altogether by surprise by the testimony of Wilson. The motion was overruled. The witness Wilson then proceeded to state, further, that he returned to *353the jail on the succeeding Wednesday, taking with him pen, ink, and paper, and then said to the accused that he had come “in order that he might say what he wished, if anything; that what he said must be voluntary on his part; that, witness could make him no promise, and he must expect no favor because of any confession he might make.” The accused then said that on the Sunday before the killing, he (the accused), Jim Jones, and Dan Drinkwater met at Powell Brown’s, and agreed to meet at Tillatoba on the following Wednesday night, and go to Jack Fox’s house and call him out and kill him; that they met pursuant to agreement, and went to Fox’s house, — the accused remaining about one hundred yards away, with Dan Drinkwater, — and that Jim Jones did the shooting, after which they all left.”
Before any confession can be received in a criminal case, it must be shown that it was voluntary. The courts are not entirely agreed as to what circumstances will render a confession inadmissible. The principle on which they are excluded was at one time carried very far by the English courts. Baron Parke said, in Regina v. Baldey, 21 Eng. Law. & Eq. 590-598 : “ I confess I cannot look at some of the decisions without some shame, when I consider what objections have prevailed to prevent the reception of confessions in evidence; and I agree with 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.” In this State the rule has, in some cases, been extended to the most extreme limit; but in all these cases the confessions were made by slaves, who, from their condition, were understood to be less callable of free volition than freemen.
A distinction between inducements held out by persons in authority and mere private persons seems now to be firmly settled. It is said by Green leaf that “ if the inducements were offered by the prosecutor, or by his wife, the prisoner being his servant, or by an officer having the prisoner in custody, or indeed by any one having authority over him or over the *354prosecution itself, or by a private person in the presence of one in authority, the confession will not be voluntary.” 1 Greenl. on Ev., sect. 222. And in this case it is insisted that, as the inducements were held out by Watson in the presence of Wilson, the sheriff, the confession ought to be excluded. But it is shown that Wilson expressly warned the prisoner that his statement must be voluntary, and that he (the sheriff) could do nothing for him. This evidence excludes the supposition that the prisoner thought that the officer concurred in the inducements or gave his sanction to them. Wharton, in his work on Criminal Law (sect. 692), expressly recognizes the rule that when the inducement does not proceed from a person in authority, there must be reason to suppose that such person appeared to the prisoner to sanction the inducement, or else the confession will be admissible.
The admissibility of the confession in this case must therefore be tried by the same rule as if the inducements to confess were held out by a mere private person, not having, nor assuming to have, any power over the prosecution. There is some difference in the authorities as to the effect of inducements held out by merely private persons on the admissibility of confessions thus obtained. The better rifle seems now to be, that confessions made in consequence of inducements held out by persons in authority ought to be excluded on grounds of public policy, and that in all such cases the law will conclusively presume that the mind of the prisoner was influenced by them. But inducements held out by private persons, who have interfered without any kind of authority and promised without the means of performance, are not presumed to have the effect to induce a false confession. But they may have such effect, owing to the position of the person holding out the inducements or the weakness of the prisoner. In cases of confessions made to such persons, the question of their freedom or the contrary is a mixed question of law and fact, and should be submitted to the'judge. He should admit or exclude them according as he shall determine, from all the circumstances of *355the case, that they are voluntary, or that the inducements held out were sufficient to overcome the mind of the prisoner. 1 Green!, on Ev., sect. 223.
This rule had the implied sanction of the High Court of Errors and Appeals, in Simon v. The State, 36 Miss. 636" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/simon-v-state-7998436?utm_source=webapp" opinion_id="7998436">36 Miss. 636. In this case the judge held that the confessions were voluntary, and his judgment was well warranted by the circumstances.
It is also insisted that the court erred in not suspending the trial in order to send for the witness Watson. The bill of exceptions shows that only the statement of the prisoner’s counsel, not under oath, was made to the court as to the surprise, and as to what was expected to be proven by Watson. The judge was not bound to consider this statement; but if he was, the only fact stated which could be proven by Watson had already been proved by Wilson, and was in itself insufficient to show that the confessions were not voluntary.
Judgment affirmed.