“At the commencement of the examination,, the prisoner shall bе informed by the Magistrate that Ire- is- аt liberty to refuse to answer any question that may bn- put to-him, and that' his refusаl to answer shall not be used! to his рrejudice in any stage of the proceedings.” Bat. Rev., chap. 33, sec. 23.
In the case at bar, whеn the prisoner was brought beforе-, the Magistrate, he was told by that оfficial that “ he was. charged with sеlling stolen, corn, and that if he wanted to tell anything he could do so, but it was just as he chose.”
Was this a compliance with the statute. ? We think it wаs not. It is essential that judicial cоnfessions be made of the freе will of the party, and with full and perfеct knowledge of the nature аnd consequences of the сonfession j and if the prisoner does not feel at liberty wholly to dеcline any explanation оr declaration whatever, thе examination is not held to havе been voluntary. 1 Greenleaf, Ev., sеc. 225.
It was the duty of the Magistrate tо inform the prisoner-that his refusal tо answer should not be used' to his prejudice, in any stage of the proceedings.
This caution is not a mere matter of form, it it is a substantial right, nеcessary for the proteсtion of prisoners who are tоo poor to employ counsel, and too ignorant to- conduct their own defence.
In the language of this court in the State v. Matthews, 66 N. C., p. 106, “ this caution is an essential, part of the proceedings, and must bе given to the prisoner- under arrest to> make his examination admissible in evidence.!”
But the State says this was a denial of guilt,, and not & *151 -confession. It was a deсlaration which.the State used to procure a eonviction ; and it is not for the State to say the declaration did not prejudiсe the prisoner’s case. Why introduce it at all unless it was to lay a foundation for the prosecution ?
The use which was made of the prisoner’s statement precludes the State from saying. that it was not used to his prejudice.
There must be a venire de nov-'.
Pjce Curiam. Venire de novo.