
    Supreme Court of Errors and Appeals. Sparta.
    June Term, 1823.
    STATE v. ELIZABETH FIELDS AND WEBBER.
    'The judgment will be reversed in a criminal case, where the caption fails to show the county in which the court was held, and that the jury were sworn. [Overruled on last point, without being cited, by McClure ». State, 1 T. 206, and State v. Long, 1 Hum. 386. See, now, Code 5242, as construed in State v. Davidson, 2 Cold, 186.
    The circuit judge cannot, at a subsequent term,-from memory, supply an omission made by the clerk in the caption of the record of the preceding term, as, for example, by stating that the grand jury were sworn.
    The admissibility of confessions is made to depend upon their being free from all suspicion of having been obtained by threats or promises, and of any influence having been exercised to induce a disclosure. [Acc. State o. Doherty, 2 Tenn. 80. And see Whitesides ». State, 4 Cold, 180, and M. & Y. 162, both citing this ease.]
    And it is the opinion of this Court that testimony should, in sound discretion, be inquired into, with a view to its competence, and rejected rather before it is stated to the jury by the witness, than afterwards, for fear of impressions which cannot be effaced after the evidence shall he decided to be incompetent, and improper for the jury to hear. [See Polk v. Robertson, 1 Tenn. 456.]
    An attorney-general may make admissions favorable to the accused, which will be noticed by the Court. [Acc. State ». Route, 3 Hay. 88.]
    This is an indictment for the murder of Stephen Fields, found in the Circuit Court for the county of Warren, February term, 1822. The venue was changed on her application to White County, and a trial had in that Court, February term, 1822, in which she was convicted and sentenced to death, and appealed to this Court.
    The errors assigned are,
    That there is no place stated where the Court was held, in which the indictment purports to have been found.
    Secondly, the grand jury is not stated to be of that county, nor to . have been sworn, and there is no day mentioned when the indictment was found.
    Thirdly, the defendant was never arraigned.
    Fourthly, the evidence of Nancy Chissum ought to have been rejected.
    Fifthly, the Court erred in refusing a new trial and in not arresting the judgment, and also in refusing the evidence to prove the record a forgery.
    Other errors have been assigned ore tenas, but these only need be mentioned, on which the opinion of the Court rests.
    Two copies of the caption of this judgment are now before the Court, which are mutually records for each other, one the transcript sent to the clerk of White Circuit Court to which the venue was changed, the other, a later one, certified by the clerk of Warren Circuit Court. The several exceptions taken to the caption filed in the clerk’s office of White County, with the copy of the indictment upon which she was tried, I dwell not upon; but to the copy lately certified. It states a Circuit Court, held for the County Warren at the court-house in McMinnville, not saying in the County Warren. It states, also, that the grand jurors were appointed to inquire for the body of the county, &c. Both of these defects are fatal ones. The Court ought to appear to have been held within the county, and the grand jury should appear to have been sworn;
    There is still another copy, lately certified, by which it appears that judge Stuart, six months after February term, 1822, amended the record of Warren Court by inserting from his memory that the jury was sworn.
    It was too late to do this after February term was ended, though he might have done it any time within the term. As to the new trial, it will now be improper for this Court to express any opinion, for it might have some influence on a future trial.
    With respect to the evidence of Mrs. Chissum, it was, in my opinion, legally admitted and left to the jury.
    Such testimony of confession, it is true, should be free from all suspicion of having been extracted by any the least influence used for the purpose, but here she wished to confess, and is going out of doors with Mrs. Chis-sum to speak to her on the subject, before the rude voice from the interior of the house was uttered, and she was no otherwise advised to a disclosure by Mrs. Chissum, except to tell the truth, after she had said voluntarily she would do so.
    In relation to evidence of confessions it is proper upon this occasion to say, in general, that it is liable to a thousand abuses. They are made by persons generally under arrest, in great agitation and distress, when each ray of hope is eagerly caught at, and frequently under the delusion, though not expressed, that the merit of a disclosure will be productive of personal safety. Can a confession be meant as a weapon to be wielded for the destruction of the one who makes it? If riot, it is deception to use it, and against the understanding of the person who made it. It is a breach of confidence at all times, odious by the common consent of mankind, and the more so when used to the injury of the person confiding in the honor of him with whom the deposit was made, and if thus unamiable in its introduction it gains but little on further acquaintance.
    Confessions are made by persons for whom humanity cannot but feel; in distress, in want of advisers, deserted by the world, in chains and degradation, their spirits sunk, fear predominant, hope fluttering around, purposes and views momentarily changing, a thousand plans alternating, a soul tortured with anguish, and difficulties gathering into a multitude. How uncertain must be the things which are uttered in such a storm of the passions! And this is not all; how easy is it for the hearer to take one word for another, or to take a word in a sense not affixed to it by the speaker 1 And for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible is it to make third persons understand the exact state of the mind and meaning of the one who made the confession. For these reasons, evidence of confession, though admissible, is yet received with great distrust, and under the superintendence of very solicitous apprehensions for the wrong it may do. The admissibility is' made to depend on its being free from all sus■picion of having been obtained by any threats of severity or promise of favor, and of every influence, even the minutest, having been exercised over the mind of the person in order to induce a disclosure. Phil, on Evidence, 50 ; 1 Chitty, 85 ; 1 Leach, 203 ; 4 B. C. 357; 1 Chitty, 571. This latter consideration makes necessary a scrupulous examination of the circumstances which may be recurred to in proof of influence used to obtain confessions. • And it is the opinion of this Court, who will not say that the testimony of Mrs. Chissum shall be rejected, that whenever it shall be offered it may be examined with the anxiety just mentioned, and, when submitted to the jury, be accompanied with observations which in legal contemplation characterize it. And it is the opinion of this Court that testimony should, in sound discretion, be inquired into with a view to its competence, and rejected rather ■before it is stated to .the jury by the witness than afterwards, for ■fear of impressions which cannot be effaced, after the evidence shall be decided to be incompetent and improper for the jury to hear.
    After these remarks, which we deem it not improper upon this occasion to make, and after expressing regret that notwithstanding so many exceptions heretofore found in the captions of indictments, that no form is yet framed by some judge or solicitor-general, and given to the clerk as the proper one to be entered on the first day of the Court, to all the records of the term:
    The judgment of this Court is, that the judgment of the Circuit Court rendered in this cause be reversed, and that the prisoner be remanded to the Circuit Court for the County of Warren, to be proceeded against de novo, if the State shall think proper.
   Peck, J.

The points I shall consider in this case are the caption to this indictment, in the dress it now assumes before the Court, and the nner in which parts of the record have found their way here.

That which appears to have been certified up to this Court from the County of White, and on which the defendant in the Court below has been tried, differs essentially from that brought up to this Court from the County of Warren.

I have little hesitation in saying, that on the record certified on the change of venue from Warren to White, if viewed aside from the other records brought into this Court by certiorari, the life of the defendant on that proceeding would be in imminent danger; but when viewed in connection witli tlie records, which are certified and designed to give a full view of the case as it should he presented, gives for the present a different result.

We are not without authority for receiving the records brought here by the writs of certiorari. But if it was questioned it would be sufficient to say that both the State, by her prosecuting attorney, and the defendant admit these papers to be well before us.

Yet, as but little is said in our books recognizing the practice of granting this writ beyond the county, into which a cause has been removed by change of venue, to that in which the proceedings originated, it may not be amiss to mention some cases in which it has been done. In the case, the State v. Bennet, at Nashville, the writ of certiorari went into two counties, — the one where the trial had been, the other to the county where the cause originated, there having been a change of venue. In another case, the State v. Norvell, at Rogersville, the certiorari was sent to Claiborne County.

In most of the cases recollected, it is true, the writ has been used on the part of the State to cure those defects of which the prisoner sought to take advantage. If used on the side of the State, it cannot be pretended but that a defendant would be entitled to a like remedy, where defects were apparent to his injury, for it is neither in law nor reason to grant the writ on the one side and deny it on the other; if there is a preponderance, certainly it is in favor of a prisoner, in a capital pase, and if hitherto I could have entertained doubts of the propriety of such a use of the writ, the case before the Court would evince the necessity of applying it.

The whole question was, where the truth lay, for it was said not to be found in the record, or that which purported to be the record, on which the defendant had been tried. There was a fountain whence this truth could be drawn, and both the State and defendant resort to it; and though both bring up different parts of the same record, they evince the same fact, to wit: that at the time the grand jury found the bill of indictment, the record was silent on the fact whether or no that jury had been sworn.

A change of venue from one county to another is but an adjournment of the cause, in the language of the act of Assembly, for trial at a different place, and the use of the process of certiorari, as applied here, is to correct errors that may intervene in transmitting the record, so that the whole case may appear before whatever court the cause maybe taken; and as the writ is sent to bring up a more perfect transcript, the one sent last must at least be of equal validity with the first.

It is no good argument to say the trial has been had on one record, and the other, when now brought, is but at war with it. Therefore, as much being proved in favor of the verdict as against it, it should not now be disturbed.

It is enough to say, in answer to such a position, that if doubt in law is created upon the whole case, or on any part of it, that doubt should incline the Court to the side of the accused; but here it is put beyond doubt, for the records of two terms prove the error complained of, and the record stands corrected.

If it be said that such a course may afford facilities to escapes, and that there having been a trial and judgment, it should not now be disturbed, I answer, it would be monstrous to stand by and see a human being, however depraved, cheated into a trial of seeming form and deprived of life, upon an erroneous statement of facts, purporting to be a record in substance, but which, when examined in after times, would evince to all who might make the inquiry, that in fact neither the form nor substance vras there to justify the execution. For the principle is as old as the law, that the caption of the record should show that the grand jury had been sworn. Chit. C. L. 314, 315, 316, 327.

The amendment, at a subsequent term, cannot be justified by the rules of law. 2 Coke Lit. 260 a.

So far we have viewed this case as though the defendant had sent the certiorari in fact. The truth is, the Solicitor-General admits on the record that the transcript from Warren County is in this Court, as if brought up by that writ. And the question is made, with the members of this Court, if such admissions can or will be noticed, a majority of the Court are of opinion they can and ought.

In a State case the people prosecute and the Attorney-General is their oíBeer; he is created by the Constitution, acts in virtue of his commission, and on oath ; and while he guards with vigilance the interest of the State, it is his bounden duty to see that such rights as the accused has shall not be prostrated, but that right and justice shall be done ; he should not lay hold of an accident bi’ought upon the accused by a default not imputable to her, and turn such accident to the purposes of illegal conviction; for as the people, the members on whom such an abuse might fall indiscriminately, would, for the safety of each, avert such a course; so neither should the Attorney-General, acting for them, stand by and see toils improperly spread to ensnare any.

The law, supposing that he will not abuse his trust on either side, his admissions, when made part of the record, should be received.

An opinion on the powers and some of the duties of attorneys-general was strongly expressed in accordance with this opinion by the whole Court at Knoxville, in the case of the State v. Foute, determined at-term. 3 Hay. Rep.

I agree with Judge Haywood in the opinion by him just expressed; Judge Whyte dissented.  