The opinion of the court was delivered by
In this case the defendants were indicted and fried jointly for burning a frame of timber prepared for making ■a house, which is made a felony by Section 4, Chapter CXXIX., 'General Statutes, page 714. Upon their arraignment they each •claimed the right to challenge, peremptorily, twenty of the jurors presented, but the Circuit judge held that they were each only •entitled to five peremptory challenges, and this presents the first •question raised by this appeal.
It is very clear that the prisoners were properly restricted to
The next question is as to the admissibility of the confessions of one of the defendants — Isom Workman. Three objections seem to be made. 1. That the confessions were not free and voluntary. 2. That no previous warning had been given to the defendant as to the effect his confessions might have. 3. That even if the confessions were admissible as against the party who made them, they were not competent evidence against the other defendant, and the witnesses in proving them should have been required to omit the name of Satterwhite wherever it was used by Workman in making his confession.
As to the first objection the rule is that the evidence upon the point whether the confessions are free and voluntary or have been extracted by fear or induced by hope excited in the prisoner’s' breast by some outside influence, is addressed to the presiding judge, and it is a matter for him in his discretion to decide; but as it is difficult to lay down any particular rule by which the proper exercise of this discretion is to be tested, each case must, in large measure, depend upon its own circumstances. 1.Greenl. on Ev., § 219. In this case the Circuit judge reports that the confession of Workman was admitted in evidence “ because it appeared that the same was made freely and voluntarily, and upon his own solicitation,” and we think the testimony set out in the “ case” fully sustains this statement of the Circuit judge, and that there was no error in admitting the confessions.
The next objection to the confessions cannot be sustained. No previous warning was necessary. In 1 Greenl. on Ev., § 229, it is said : “ Neither is it necessary to the admissibility of any confession to whomsoever it may have been made, that it should ap
The remaining objection to the confessions is, not only that they were not admissible against the co-defendant, but that the witnesses in detailing the confessions should not have been allowed to use the name of Satterwhite where it had been used by Workman in making the confessions. The first branch of this objection rests upon a misapprehension of the ruling of the Circuit judge, for he not only did not hold the confessions of Workman to be admissible as evidence against Satterwhite, but, on the contrary, he seems to have carefully instructed the jury that the confessions were evidence against Workman only, and that they must not regard them as any evidence against Satterwhite.
The only remaining inquiry on this branch of the case is whether the witnesses who were put upon the stand to prove the confessions of Workman should, in detailing such confessions, have been required to omit the name of Satterwhite where it was used by Workman in making his confession. The rule seems to be that the name should not be omitted. Rex v. Fletcher et al., 19 Eng. Com. Law 369; Rex v. Hearne et al., 19 Eng. Com. Law 350; Rex. v. Clewes 19 Eng. Com. Law 356. In Hearne’s Case, supra, where it was insisted on behalf of Cox, one of the defendants, whose name had been mentioned as one of the parties engaged in stealing the horse, in proving the confessions of Cotton, another of the defendants, that the witness, in proving the confession, ought to be required to omit his name and merely say “ another person,” Littledale, J., said : “ The witness must mention the name. He is to tell what Cotton said, and if he left out the name he would not do so. Cotton did not say ‘ another person,’ and the witness must give the conversation just as it occurred, but I shall tell the jury that it is not evidence against Cox; ” — just as the Circuit judge seems to have done in this case. The doctrine established by these cases appears to be recognized by these eminent text-writers. Phillips, ch. V., § 5; Starkie, part 4, p. 54, and 1 Greenl., § 218.
The next point raised by the appeal is as to the competency
The passage, therefore, of this act, removing all grounds of objection to the competency of witnesses on the score of interest, does not remoye the other ground of objection to the competency of a wife to testify for or against her husband based upon considerations of public policy. Lucas v. Brooks, 18 Wall. 453; Gee v. Scott, 48 Tex. 510; Same case, 26 Am. R. 331; Steen v. State, 20 Ohio St. 333; Gibson v. Commonwealth, 87 Penna. St. 253. It is insisted, however, that even though the wife of Sat-terwhite may not be a competent witness for him, yet she was a competent witness for his co-defendant, Workman. These parties were indicted and tried jointly, and there was no motion to sever, upon the ground that one of them desired to use a witness who would not be competent for the other; nor was it proposed to prove by Mrs. Satterwhite a distinct and independent defence
The nest question is whether the judge erred in refusing the motion for a new trial based upon the ground of newly-discovered evidence. ’ This motion was addressed to the discretion of the Circuit judge, and unless his discretion was abused or some rule of law was violated we have no authority to interfere. In this ease, so far from there having been any abuse of discretion, , ■or any violation of any of the rules of law, we agree entirely with the Circuit judge that the showing upon which the motion was based was altogether insufficient, both in form and substance. Without undertaking to specify all the objections to it, there was one which was absolutely fatal, and that was the absence -of any showing to the effect that the alleged newly-discovered evidence could not, by due diligence, have been discovered in -time for it to be offered at the trial. Indeed, there is nothing whatever to show that the so-called newly-discovered evidence ‘was not known to the defendants at the time of the trial, for the .■motion is based solely upon the affidavit of one of the counsel for ■the prisoners, and while it may have been, and no doubt was, •entirely true, that this evidence was only brought to the attention 'of the counsel after the trial, it does not by any means ■follow from this that such evidence was not known to the defendants.
The last ground relied upon by the appellants is that “ the •evidence discloses no offence against the statute under which this indictment is framed. The testimony shows that it was a dwelling-house nearly completed.” The real point upon which this ground rests, as we gather from the argument here, is, that :the thing burned was not a frame of timber prepared for making •a house, which' is the offence denounced by the statute under which this indictment was framed, but that it was a dwelling-' .house partially completed.
We do not see how the appellants can raise this point here
The judgment of this court is that the judgment of the Circuit Court be affirmed.