
    Belote v. State,
    36 Miss. R., p. 96.
    Larceny.
    Though, confessions improperly obtained from accused are not admissible, discoveries made and acts done in consequence of such confession, and in corroboration thereof, are admissible. And quaere whether such confession, so corroborated, may not also be admitted on account of the corroboration. *
    By means of a confession improperly obtained, property alleged to have been recently stolon was found and identified; held, that the finding was admissible in evidence against the accused, whether the confession was or not.
    The possession of recently stolen goods, if unexplained, is presumptive evidence of guilty; and what facts or circumstances are sufficient to explain such possession is, for the most part, to be determined by the jury.
    Testimony, to give which any force against tbo accused, the jury .would have to indulge unwarrantable conjectures to his prejudice, is irrelevant and admissible.
    Error to Tippah circuit court. Scruggs, J.
    
      The plaintiff in error was indicted for the larceny of ten bank-bills, each of the denomination of five dollars, and the property of Ephraim Strout. lie pleaded not guilty.
    Ephraim Strout, for the State, testified as follows : About the -day of November, 1857, witness lost about one hundred and sixty dollars, in bank-notes of the Empire Bank of the State of Georgia; that each of said notes was of the denomination of five dollars; he kept the money in a pocket-book, which he laid upon the mantle-piece, behind the clock; the defendant was at witness’ house on the Saturday preceding the Sunday on which the money was missing; there were some persons working about witness’ house at the time, and at first he suspected them; but afterwards he suspected the prisoner, and about three weeks after the money was stolen, he charged him with stealing the money ; witness said to the prisoner,. “ that if he would confess and tell all about it, and tell witness where the money was, and give it up and leave the country, he (witness) would not; ” “ upon this statement of the witness to the prisoner, he agreed to do so, and did tell where the money was, and confessed having taken it.” To the introduction in evidence of this statement of the prisoner, he objected. This objection was sustained, and the evidence ruled out. The district attorney then asked the witness “ to tell what the prisoner did in regard to the showing of the money; ” and in answer to this question, the witness said “ that the prisoner went to the corn-crib and got ninety dollars of the money out of the crib, and gave it to witness; witness saw the defendant get the money, and it was of the same kind that the witness had lost — all five-dollar bills, and witness believed the bills were his.” To the introduction of this proof the defendant objected; but his objection was overruled, and the evidence went to the jury, and the defendant excepted.
    The state then introduced L. M. Denny, the prosecutor, who stated that he had known the prisoner for three years, and lived in the same neighborhood where the money had been lost; that hearing that the defendant was charged with taking the money, witness went to defendant, and told him “it would be better for him to tell all about it; that if he did not, he would be prosecuted and sent to the penitentiary, or prosecuted for it; that if be (defendant) would tell all about it, witness would stand up to him; and that as some talked of beating him, witness would not suffer him to be hurt; ” and thereupon defendant said to witness, “ he would get forty dollars of the money.” To this statement of defendant, as deposed to by witness Denny, the defendant objected. This objection was sustained, “ and the confessions ruled out.” The district attorney then asked witness to state “ what the defendant did in regard to the money.” In answer to this, the witness stated “ that the defendant, witness, and one Matthis, went to the defendant’s house, which was about sixty yards off, and that soon afterwards the defendant went out of the house to get some brush to kindle the fire with; witness remarked to Matthis,that defendant stayed a good while, and asked Matthis to go and see where defendant was ; Matthis went out, and presently witness heard a rap at the door, and witness went to the door, and Mat-this .then asked witness to. come out; witness did so, and went round to the chimney, where defendant and Matthis were; thereupon Matthis handed witness some money, and told witness to count it, which witness did, and found that there was fifty-five dollars of it, all in paper money, and in five-dollar bills; but witness does not know what banks these bills were on.” This last statement of the witness, in regard to the defendant’s acts, was objected to by defendant, as incompetent evidence; but his objection was overruled, and he excepted.
    The witness then, on cross-examination, stated that the defendant was, at the date of the loss of the money, and had been for some time previous thereto, very intemperate; that he was weakmiinded, and, when under the influence of liquor’, was almost insane; that the prisoner’s father was a respectable and honest man, and that, whilst prisoner was a boy, and previous to his marriage, he was regarded as honest; but that he married into a bad family, and since then had kept bad company, and was surrounded by men of bad character; and that relations of his wife, of doubtful character for honesty, shrewd and smart, were in the habit of staying at defendant’s house; and that one or more of them were suspected of having stolen Strout?s money; that they had opportunity to do so, and witness “ believed at the time, and still thought it most likely, that one of the men had stolen the money, and put it off on defendant in some way.”
    This was all the evidence, except the admission in the bill of exceptions “that all technical points were proven, except the felonious taking and carrying away the money as charged.”
    The court, at the instance of the State, instructed the jury as follows:
    1. If the jury believe, from the evidence, that the defendant took the bank-bills of Ephraim Strout, with intent to apply •them to his own use, they will find him guilty.
    2. If the evidence satisfy the jury that Ephraim Strout lost bank-bills, and that they, or a part of them, had been found in defendant’s possession shortly after, in the absence of other evidence proving how defendant came into possession, they will find him guilty.
    3. The guilt of the defendant may be proven by circumstantial as well as by direct proof.
    To the giving of all which the defendant excepted.
    The defendant asked the following instructions :
    1. If the jury have a reasonable doubt of whether defendant did feloniously take the money or not, they must acquit.
    2. That when a man is taken in possession of property, his statement of how he came by the property cannot be offered by the defendant, though it may be by the State.
    The first was given, and the second was refused. The defendant excepted.
    The jury found the defendant guilty, and he moved for a new trial, which was refused, and he excepted, and sued out this writ of error.
    
      F. Anderson, for plaintiff in error.
    The points presented for the consideration of the court arise, first, out of the exception taken to the admission of the testimony of the witnesses Strout and Denny. These witnesses having stated that confessions were made to them by the prisoner, under circumstances which rendered them inadmissible. were permitted, nevertheless, to state the conduct and actions of the accused, in the one case, in going to a crib and getting ninety dollars of the same kind of bills that witness (Strout) had lost, “ all five-dollar bills,” and which witness believed were his; and-the other, in standing by while one Thompson Matthis (not a witness in the cause) handed the witness $55 in paper bills, but on what bank witness did not know, the accused having first gone out of the house, and afterwards being followed by Matthis, who presently returned to the door and called to witness to come out there, which he did, and went round to the chimney where they were, and where the money was handed to witness by Matthis. This witness showed that the prisoner was threatened with beating, and he promised to protect him if he would confess.
    This testimony, upon clear principles, was inadmissible. If it amounted to anything, it amounted in each case to a confession, which, being under the influence, in one case, of promises, and, in the other, of threats and promises, was inadmissible.
    Without presenting, at present, the question whether the facts were discovered in consequence of the confession, viz., the finding the money in the one case in the corn-crib, and in the other in the chimney-corner (if that is a fair inference from the testimony on this point), I insist that nothing but those facts, unconnected with tho confessions, were inadmissible. I think that the rule established in the case of Jordan v. State, 38 Miss. R. 382, excludes both the facts disclosed and all parts of the confession or conduct-of the accused, when he acts under the influence of hope or fear. But, to understand the bearing of that case, let us see how the law stood on authority before its decision.
    The general rule was, that though the confession was inadmissible, yet facts brought to light in consequence of it might be used; and it was held that, where, in consequence of an inadmissible confession, property stolen was found at the lodgings of the accused, between the sackings of her bed, the fact of finding the goods only could be proved. 2 Russell on Crimes, 861. See, also, 1 Leach, Cr. C., 298, Warickshall’s case.
    So, where the excluded confession showed that the goods had been disposed of to a particular person, that person might bo called to show that he had received the property. 2 Russell on Crimes. 861; 1 Leach Or. C., 431, Lockhart’s case.
    This, I insist, is the most that the English dtathorities, fairly construed, allowed. It is true that Russell, at the page last cited, says that the cases have gone farther, and that where inadmissible confession describes the place where the goods were concealed, evidence might be given that the accused did so describe the place, and that the goods were afterwards found there, citing 2 East PI. Cr., 658, to sustain him. It is to be observed, however, that East, at the page cited, does not fully sustain the doctrine of Russell, but says in fact that this is going too far, and that'the most that is proper to be left to the jury is the fact of witness being directed where to find the goods, and their being found there, but not the acknowledgment that he stole them or put them there. 2 East, 651, 658.
    And this is acknowledged by the former author to be a proper limitation, for, on the next page, 862, in stating the rule, he says again : “ That so much of the confession as relates strictly to the fact discovered may be given in evidence; it is common practice to leave to the jury the fact that the witness was directed by the accused where to find the goods, and his finding them there, but not the acknowledgment that he stole them or put them there, which is to be collected or not from all the circumstances of the case.” 2 Russ., 862.
    The author here cites 2 East, 658, as above, and also the case of Rex v. Gould, 38 Eng. O. L. R. But in the note on this page of Russell, it will be seen that Phillips, after stating the case of Rex v. Gould, adds, “ But the judge would in such case direct, and so it is understood did direct, the jury in that case, that his (prisoner’s) statement must not be taken as proof that he concealed, but only as evidence that he knew or was privy to the concealment, from which, together with the rest of the evidence, they would consider whether it was prohable that he concealed it himself.”
    Again, on the subject of acts done after a confession improperly obtained, Russell says: “It has been determined, after consultation of all the judges, that any acts done afterwards may be given in evidence, notwithstanding they may have been done in consequence of the confession,” citing 1 Leach, 298, Warickshairs case; see 2 Buss., 863. He is evidently here speaking of acts of the prisoner in the nature of confessions. But on examination of the authority cited, 1 Leach, 298, and those cited in the note to that case, it will be clear that only , such facts transpiring, inter alias, as may be found by extraneous evidence, are referred to.
    Again, at page 863, this authority says: “ From a recent decision it would seem that what the prisoner says at the time such acts are done may also be received in evidence,” citing Bex v. Griffin, Buss. & By. O. 0., 151; and this authority sustains the citation, but, as I will hereafter show, on the same day the same court held directly the reverse.
    I have shown above the farthest point to whiqh the strongest English authorities on that side of the question have gone, and have been thus particular in doing so for the purpose of calling attention to the extreme caution manifested in violating the true rule, that neither the acts nor the words of the prisoner obtained under duress should be used against him, and the qualifications and limitations which even those courts which have departed from the rule have laid down for their action.
    But the weight of English authority is against the above views stated by Bussell, and held by the authorities cited by him.
    Hawkins’ P. 0., 595, states the rule thus: “If any facts arise in consequence of an admission” (incompetent itself), “they maybe given in evidence, because they must ever be immutably the same, whether the confession which disclosed them be true or false, and justice cannot suffer by their -admission. The truth of these contingent facts, however, must be proved independently of, and not coupled with, or explained by the conversation or confession from which they are derived.” 2 Hawk. P. 0., bk. 2, ch. 40, § 35.
    Lord Eldon, in the case of Bex v, Hervey, held “ that in case of an inadmissible confession it was proper to direct an acquittal, unless the fact proved ” (by extraneous evidence) “ would have been sufficient for conviction without any confession leading to it.” (I cannot 'obtain the report of this case, but it is cited in 2 Buss., 862, and 2 East, 658.)
    In Bex v. Jones, Buss. & By. C. C., 152, decided on the same day, and by the same court which decided the case of Bex v.i Griffin, last cited from Bussell, a directly opposite rule was established. In this case the accused, under a promise of favor, handed to the prosecutor eleven shillings and six-and-a-half pence, saying it was all he had left of it, and it was held that this testimony was inadmissible, and that the conviction was wrong.
    In Bex v. Jenkins, Buss. & By., 492, the accused, under a promise of favor, confessed, and carried the officer to a house as the house where he had disposed of the property, and pointed to the persons to whom he had disposed of it, who, however, denied it, and the property was not found; it was held that the acts of the prisoner were not admissible.
    It may be said that in this case there is a distinction, because the act, in the nature of a confession, was not confirmed by finding the property; but this, as will be shown directly, makes no difference in principle.
    In 1 Archbold Or. PL, 130-1-2-3, the above cases are cited and discussed, and the author holds that the only question in such cases which can be asked is, whether, in consequence of something the witness heard from the prisoner, he found anything, and where, and the witness, in answer, can only give « in evidence the fact of discovery. lie refers to one case as going further than this, and that is the case of Bex v. Griffin, cited above from Bussell; but he cites in opposition both the cases of Bex v. Jones and Bex v. Jenkins, and, in reference to the latter, holds that the fact of the goods not being found makes no difference; and if in this case the goods had been found at the house, the witness might have proved he-found them there in consequence of something he heard from the prisoner; but whether that would let in proof of the prisoner’s act in going with the officer, is quite a different question.
    It is evident that this author sees no- difference between words of confession, or acts which are in the nature of confessions ; and the same may be said of Bussell, for endeavoring to make out the point that such acts are admissible, he is compelled also to hold that such parts of the words of confession as relate to the fact discovered and found, are also admissible. There is certainly no difference in principle between them, for the acts may be stimulated as well as words; and if acts are let in because the inference from them is confirmed by the facts found, words should also be, because in each case the words, as well as acts, if confirmed by the other proof, must, in the language of Hawkins, be “ immutably true.”
    The latter view of the English authority, the doctrine of Lord Eldon, Hawkins, and Archbold, and the cases last cited, are fully sustained in State v. Aaron, 1 Southard’s Rep., 239.
    It is said that the case of Yan Burén v. The State, 21 Miss., 516, is in opposition to this view; but on examination of that case, the question was not presented, and what the court there says is only a dictum.
    The case of Jordan v. The State, 32 Miss., 382, is directly in point, and fully sustains our view. It may be said that there was a case of compulsion, but there is no difference in principle; and if there were, one of our exceptions (that to the testimony of Denny) falls fully within the distinction, as the witness states that as some talked of beating the accused, he, witness, would protect him, if he would confess, and not suffer him to be hurt.
    But the property found was not sufficiently identified. This point, and the authorities cited on it, will become important, in connection with the instruction to be hereafter discussed.
    The bare circumstance of finding in one’s possession property of the same kind that has been stolen, unless from marks or other circumstances it can be identified, is not, in general, suflL cient evidence, unless the fact is of such very recent occurrence as to afford a reasonable presumption that the property could not have been acquired in any other maimer;.in which case the court is warranted in concluding it is the same, unless the prisoner can show the contrary. And to illustrate this principle, the cases are put in the authorities of a man coming out of another’s barn, and corn found upon him of the same kind with that-in the barn, and of one coming from ships or wharfs, with sugar or other articles of like kind upon him; and this is only to be understood of such articles as are not susceptible of identification. 2 East PI. 0., 656, 657; 2 Russ., 124; 2 Archb. Cr. PL, 369-4-5, 370-1-2, notes. See also Jordan v. State, 32 Miss. R., 386, where the court says, in reference to such cases, the place of finding and knife found must both agree with the description given by the accused; and if a discrepancy in either or both appeared, the court should have excluded the evidence.
    Second. The second instruction granted on behalf of the State was erroneous. It declares that if property is lost, and found in possession of defendant shortly after, the jury should convict, or, rather, they are directed to convict. This is not the true rule. The rule is, that a felony must be proved to have been committed, and then possession shortly afterwards, unexplained, warrants only a presumption of guilt. 2 East, 656-8; 2 Russ. Cr., 124,125 ; 2 Archb. Cr. PL, 369, note.
    But this is only a presumption of fact, which may or may not, under all circumstances, authorize a conviction. The rule is one of necessity, and it is admitted that under it many innocent persons have suffered. Great strictness is therefore required in its application. In the case of lost property, possession is not presumptive evidence of larceny, even if lost property is the subject of larceny. Whether in any case, and if so under what circumstances, lost property may be the subject of larceny, is a question which will come before the court in another case; and I do not, therefore, desire to obtain a judgment from the court on this point in this case; but even where it is held the subject of larceny, as in England, it is well established that to constitute larceny in such case, it must appear that the finder had the means of knowing the owner; and further, that the felonious intention to convert the property must have been entertained eo instanti of the finding, and this must appear. Regina v. Preston, 8 Eng. L. & Eq. Rep., 589.
    It is clear, therefore, that as a legal proposition, it is erroneous to say that the finding a party in possession of lost property, recently after the loss, is evidence of the lai’ceny, since the additional facts above indicated must be shown to the satisfaction of the jury. On the contrary, the larceny itself must be found by the best evidence the nature of the .case admits, before you can resort to any presumption of guilt founded on recent possession ; and where circumstances are resorted to to establish a felony, as the foundation of such presumption, they must be such as are irreconcilable with any supposition but that of guilt in the taking. 2 Arch. Cr. PL, 368-1, note.
    It may be said that there is no proof going to show a loss, and therefore there is no error to the injury of the accused. "W"c answer, that the instruction was one applicable to the case as proved by the state, and that it evidently secured the conviction of the accused, and the state cannot be heard to say the accused was not injured. It was a question for the jury to decide, whether a larceny was proved, and they are, in effect, instructed that the main and essential point, as shown by all authorities, viz., proof of a felony before you can resort to the presumption from possession, was not necessary to be proved. But in point of fact, the proof, which we will not here discuss, may have left very grave doubts whether a larceny was in fact committed.
    But this is not the main ground on which we object to the instruction.
    The instruction was, that the jury will convict on the proof of possession shortly after, &c. There is not a case which has gone this length. The possession affords only a presumption of a fact, which, therefore, may or may not be true, and which, therefore, the jury, under the particular circumstances of the case, might disbelieve. All the authorities hold that it amounts only to a presumption, strong or weak, according to the circumstances of the ease, among which are enumerated particularly the length of time after the larceny, compared with the character of the goods, and their facility of being exchanged from hand to hand. It is a presumption, too, of so weak a character, that it may be rebutted by proof of good character alone, or of unsuspicious conduct of the accused. 2 Arch. Cr. PL, 369-4.
    ' Bussell lays down the rule thus: That it is one of necessity, which will probably seldom lead to a wrong conviction, if due attention be paid to the particular circumstances of the case, among the most prominent of which he enumerates the length of time, the conduct of the accused, the character of the goods, &c. 2 Russ. Cr. 123; 2 East, 657.
    Justice Coleridge, in a case where two sacks were found in possession of a person twenty days after the larceny, says to the jury, “ If I were to lose iny watch, and in a few minutes it were found in the possession of one of you, it would afford the strongest ground for presuming you had stolen it; if a month after it were found in your possession, the presumption would he greatly weakened, because stolen property usually passes through many hands.” 2 Russ. Cr., 123.
    As some articles pass from hand to hand much more rapidly than others, the nature of the articles ought to be taken into consideration by the jury in determining whether the possession is so secret as to lead to the conclusion that the prisoner stole them. 2 Russ. Or., 124.
    In Rex v. Partridge, 32 Eng. O. L. R., 627, Patterson, justice, said, “ I think the length of time is to be considered with reference to the nature of the articles. If they are such as to pass from hand to hand rapidly, ten months would be a long time, but here it is not so. It is a question for the jury.”
    Finding goods in the house of the person is not sufficient.. Rose. Cr. Ev., 18; 2 Russ. Cr., 123, n., citing Starkie.
    In the case of Rex v. Adams, an axe and a mattock were-found in possession of the accused three months after the larceny, and it was held not sufficient to put him on his defense;. 2 Arch. Cr. PL, 370-1, n. 2; Jones y. State, 26 Miss. R., 247.,
    Again, if it should be held that the identification, of" the articles is a subject for the jury and not the court (in> which latter-event the testimony of the two witnesses should have been, excluded), then it is clear that the question of identification', becomes an important one in ascertaining the force of the presumption. On this point see the authorities-, before cited, and' also Montgomery y. The Commonwealth, 11 Metcalf Rep., 537.,
    From these authorities I think it is clear-that- the whole subject is one for the jury, to judge of the presumption according to all the facts, and the weight to which it- was entitled, under-the particular circumstances of the case-,, and. that it should have. been left to them without instruction that if the possession were found they should convict.
    Another valid objection to this instruction arises out of the rule as established. The accused is not required to show by proof, as this instruction required, how he came by the property. If he make himself a rational explanation, and that explanation is not disproved by the state, he is entitled to an acquittal. 2 Arch. Cr. PL, 369-5.
    The accused was as much entitled to the benefit of that principle in this case as if proof had shown that he did give a rational explanation, and that explanation were uncontroverted in the proof; and for this plain reason he was prevented by the prosecutor and witnesses from giving it. He was placed under the influence of hope and of fear, which, according to the principle of evidence, incapacitates him from telling the truth and giving a true explanation, and, therefore, his statements are excluded. Had he been given the chance, he might have explained.
    I do not discuss the evidence, as I propose to do so in an oral argument.
    
      T. J. Wharton, attorney general.
    It might be argued with more than mere plausibility, on the axithority of many late and leading cases, in which former decisions are reviewed and the conflict settled in favor of the proposition, that to render a confession inadmissible, on account of being superinduced by threats or promises, should have been made by those in authority, or the party at least have been put in duress; and I only now incidentally refer to a few of them, to show that the plaintiff in error has no just ground to complain of the action of the court below in admitting the facts and acts above noticed.
    
      “ The chief question, it is said, is whether the inducement held out to the prisoner was calculated to make his confession an untrue one; if not, it will be admissible.” Whar. Am. Cr. L. (2d ed.), 256 ; Buss, on Cr., 845.
    In Archb. Cr. PL (oth Am. ed.), 140, it is said, “ It seems there has been a difference of opinion on this point, whether » confession made to a person who has no authority, after an inducement held out by that person, is receivable or not. In a recent case, however, it was stated that it was the opinion of á the judge that evidence of any confession is receivable, unless there has been some inducement held out by some person in authority; and that if a person not in any office or authority held out to the accused party an inducement to confess, this Will not exclude a confession made to that party.” Queen v. Sarah Taylor, 8 O. and P., 733.
    Many other authorities of the like kind might be cited, but as they relate to a point which was ruled against the state in this case, and I cannot have the benefit of a revision of them in this court, I will not enlarge upon them. I only refer to ■them incidentally, and to deduce the conclusion that if the confession were improperly ruled out, the prisoner has no cause to complain; he was benefited -at least to the extent of their ' exclusion; and if both the confessions and acts, to wit, the pointing out of the place, and going there and getting the money, were inadmissible, the latter were clearly so. But upon the supposition that the court properly excluded the confession, I will endeavor to show that it as properly admitted the acts named above.
    In the case of Yan Burén (a slave) v. The State, 24 Miss. B., 512, the plaintiff in error was indicted and convicted of burglary. It was proved that his employer charged him with the crime, and whipped him, but obtained no confession. The same evening he took him up and threatened to whip him again, when he confessed having gone into the barn at night, and taken from there certain articles, stating where they could be found, accompanied him to the place pointed out in his confession, and showed him the articles. This court held that the confession was inadmissible, but say, “ No objection is made to the admission of that part of the evidence of the witness detailing the conduct and action of the prisoner in pointing out the whiskey and sugar. These were facts which it certainly was competent to prove.”
    In Arch. Cr. PI. (5th Am. ed.), 144, the author says, at the conclusion of a review of the doctrine of the admissibility of confessions, “ Although a confession for the above or any other reasons, may not be received in evidence, yet any discovery that takes place, in consequence of such confession, or any act done by the defendant, if it be confirmed by the finding of the property (Bex v. Jenkins, Buss. & By., 492), will be admitted; as for instance, if a man by promise of favor, be induced to confess that he knowingly received certain stolen goods, and that they are in such a room in his house, and the goods be found there accordingly, although the confession itself cannot in that case be given in evidence, yet it may be proved that in consequence of something the witness heard from the defendant, he found the goods in question in the defendant’s house. And it would seem, from a late decision, that declarations of the defendant accompanying such acts may be received in evidence, even though the confession itself may be inadmissible.” Bex v. Griffin, Buss. & By., 151.
    Wharton’s Or. L. (2d ed.), 257, thus states the rule: “ Although confessions obtained by threats or promises are not evidence, yet, if they are attended by extraneous facts which show that they are time, any such facts, which may be thus, developed, and which go to prove the existence of the crime of which the defendant was suspected, will be received as testimony, where the party thus confessing points out or tells where the stolen property is, or where he states where the deceased was buried; ” and in support of the doctrines-of the text, he cites, among many others, two very strong’ eases, one the case of Hudson v. The State, 9 Yerger, 408, and The State v. Brick, 2 Harring., 530.
    In the first of these cases a confession had been made by the defendant under promises of favor, that- he had stolen the money; he then went with several persons down into the woods, about a half a mile from the prosecutor’s house, and dug into the ground at the root of a tree, and took from thence the bank-notes stolen; he went a little further on and dug out of -the ground the silver coin stolen. The court, referring to these facts, say, “ This could not have been done unless he had deposited it there himself, or knew who did, and that the fair and legal presumption is, that he did it himself; ” and after the rule, as above laid down by Arcbbold, as to tbe confessions, they say, “ If property has been stolen, and a person accused of the offense points out the place where it is' concealed, he must be considered the thief, unless he can reconcile his knowledge with his innocence.” • •
    In the case from 2 Harrington, supra, the prisoner was indicted for stealing a package of bank-notes, sent by the bank to which they belonged, through a passenger, to one Campbell, in Philadelphia; the prisoner was the driver of the stage in which the passenger traveled, the bank-notes were in a sealed package, a part of them was found upon the prisoner, and others secreted about the house of the prisoner. He confessed that he found them lying in the stage sealed up. In pursuance of his confession, a part of the money was found. He confessed, after being advised to do so, and being told it would be better for him. The court, after adverting to the several rules before noticed, say, “ But where the confession leads ’ to the discovery of the property, or produces a development of facts which, per se, show the guilt of the party, these are to be considered by the jury.”
    The doctrine, that no part whatever of the confession is to be received in evidence, was laid down by Lord Eldon, in Hervey’s case, 2 East P. C., 658.
    Roscoe, however, says the rule was applied too strictly; and in Butcher’s case, 1 Leach’s Cr. L., 301, note a, so much of the confession as related strictly to the fact discovered by it was held admissible; “ for the reason of rejecting extorted confessions, is the apprehension that the prisoner may have thereby been induced to say what was false; but the facts discovered show so much of the confession as immediately relates it, to' be true.” Roscoe’s Cr. E., 47.
    Russell, referring to the same dictum of Lord Eldon, in the above case, after reviewing a multitude of cases on the point, says: “ As far as these cases go, there can be no difficulty as to' the propriety of their decisions, because the bare facts of the property being found in the possession ,of the prisoner, in the one cáse, and his dealing with it as his own in the other, would, unconnected with any confession, have been clear evL dence in support of the prosecution. But the cases have gone further than this; for it has been held, that on a prosecution for receiving stolen goods, where a confession had been improperly drawn from a prisoner, in the course of which he described the place where the goods were concealed, evidence might be given, that he did so describe the place” (the italics are the author’s), “ and that the goods were afterwards found/ there. In this case it is clear that the bare fact of finding the goods would be no evidence against the prisoner, unless coupled with a part of the improperly admitted confession. And some have accordingly doubted whether any part of such a confession can be improperly used for such a purpose. Thus, in Harris’ case, Lord Eldon said, that where the knowledge of any fact was obtained from a prisoner under such a promise as excluded the confession itself from being given in evidence, he should direct an acquittal, unless the fact itself proved would have been sufficient to warrant a conviction without any confession leading to it; and he so directed the jury in that case. Jdut the more' established rule, according to later practice and later authorities, is that so much of the confession as relates strictly to the fact discovered by it may be given in evidenced He assigns the reason already quoted from Roscoe. 2 Russ, on Cr., 861-863; see also 1 Pli. Ev. (old ed.), 116, 117, 168, 169; Whar. Am. Cr. L. (2d ed.), 255-259 ; Greenl. Ev., 256 (quoted in 2 Russ. Cr., 828, note r).
    
    Cowen & Hill, in their notes, 2 Ph. Ev., 249, 250, referring to the doctrine laid down, supra, in 1 Phil. Ev., 116, and the contrary doctrine asserted in the authorities read in oral arguments by counsel for plaintiff in error, say: “Yet there is a strong current authority running with the text, that both the disclosure and the fact or circumstance connected with and going to its corroboration, shall also be received, and they go to the jury with their joint force.” And as to what may be considered corroborating circumstances, see State v. Aaron, 1 South. R., 238, read by Mr. Anderson, and that of the State v. Guild, 5 Halst. R., 185, 186, the same court (N. J.), read'by me. See, also, State v. Moore, 1 Iiayw., 482; State v. Jenkins, 2 Tyler, 377; Hudson v. State, 9 Yerger, 408; Rex v. Griffin, 1 Eng. Crown Cases (Buss. & B.), 151; Bex v. 'Warickshall, 1 leach C. L., 298, and note to Butcher’s case; Bex v. Lockhart, ib., 430.
    It is true that, on the same day the case against Griffin, supra, was decided, the case of Bex v. Jones, reported at page 151, 1 Eng. C. C. (Buss. & B.), was decided by the same court, in which the prosecutor asked the prisoner, on finding him, for the money he had taken out of the prosecutor’s pocket; but before the money was produced, said “ he only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased; upon which the prisoner took 11s. 6|d., and said it was all he had left of it.” It was held that the confession ought not to have been received.
    In Griffin’s case, a majority of the judges, viz., Lord Ellen-borough, Mansfield,-O. J., Macdonald, Heath, Grose, Chambre, and Wood, held the conviction right, and the evidence admissible. Lawrence and LeBlanc Avere of a contrary opinion — seven to two.
    In Jones’ case, Macdonald, Chambre, Lawrence, Le Blanc, and Heath held that the evidence was not admissible, and the conviction wrong; Wood, Grose, Mansfield, eont/i'a; Lord Ellenborough diCbitante — five to three, and two of those five, Lawrence and LeBlanc, being the two who had dissented in Griffin’s case.
    The case of Bex v. Bow is the very next ease after J ones’, reported in the same book, decided on the same day — all the judges present who sat on the trial of the other cases, and all concurring in the opinion, that where persons, having “ nothing to do with the apprehension, prosecution or examination of the prisoner, admonishing him to tell the truth and consider his family,” that such admonition was no ground for excluding a confession made an hour afterwards to the constable in person. The reporter adds that “ this case and the two former (Griffin’s and Jones’), being so much in pari materia, Chambre, J., stated them together, and reserved the question on the admissibility of the evidence for the opinion of tbe judges, in consequence, as he stated, of the obscurity and discordance of the. cases upon the subject that are in print.” In note (a) to the case (Bow’s, supra), is a reference to Warickshall’s case, from 1 Leach, supra, and to the cases, Ph. Ev., 112,1th ed.; and to Stark. Ev., part 1, page 49.
    In Begina v. Gould, 38 Eng. Com. L. (9 Carr. & P.), 156, it was held, that where anything is found in consequence of a statement made by a prisoner, under - circumstances which preclude its being given generally in evidence, such part of it as relates to the thing found in consequence is receivable, and ought to be proved.
    I have shown what the rule is, as laid down by all the approved authors (Greenleaf, Archbold, Bussell, Starkie, Phillips, Boscoe, Wharton), in the exclusion'of confessions obtained by threats, or promise of favor. I have also shown that the reason upon which the rule is founded is the apprehension that parties may be induced, by such influences, to make any untruthful statements; but the reasons of the rule, and the rule itself, cease when the discoveries consequent upon the confession verify the confession. There must be this coincidence or agreement. When the confession leads to a discovery of the fact, and the fact confirms the truth of the confession, they are indissolubly connected as res gestee, and admissible. In Bex v. Jenkins, Buss. & B., 491, the court say: “ If a confession was improperly obtained, it is a ground for excluding evidence of the confession, and of any act done by the prisoner, in consequence, towards discovering the property, unless the property is actually discovered thereby.”
    I will not repeat the argument I made upon the coincidences, establishing the guilt of the accused, drawn from the concealment of the money, the identification of the money (Georgia bank-notes, so large a number of five-dollar bills, not shown to be current in that quarter), the presence of the accused at the house of Strout the day before the money was missed. To say the least of them, they establish that presumption of guilt (connected with the testimony of Strout, proving sufficiently the corpus delicti) which is sufficient to convict unless rebutted.
    2. There is no time fixed when the presumption of guilt from possession of stolen goods ceases. The jury is to look to the particular circiimstances of ea-h case in determining whether the possession is so recent as to lead to the conclusion that the prisoner stole them. 2 Archb. Cr. PI., 370, 1, 2.
    In State v. Bennett, 2 Conn. Rep., 692, the above presumption was not rebutted by the lapse of two months between the theft and the finding. In State v. Montgomery, 11 Mete. R., 534, a package of bank-notes was stolen in December; a portion of them was found upon the prisoner the following March, and another portion in April: held to be within the above rule, taken in connection with other circumstances proved.
    Wills on Cir. Év., 64, under the head, “ Recent Possession of Bruits of Crime,” goes at large into the rule, and the cases within and without it.
    In this case the prisoner retained them no longer because they were uncurrent bank-notes: 1st, Not so likely to get clear of them as of notes convertible into par funds; 2d, More danger of suspicion attaching to them as the thief. Tbe mere possession and attempt to use so large an amount of Georgia banknotes, all of the denomination of five dollars, would arouse the suspicion of those who knew that Strout had lost just that kind of money. I think it would be no such difficult matter as opposing counsel supposes, for any gentleman in Mississippi hav- • ing $200 or $300 of Georgia bank-notes on hand, to tell where he got them, certainly easier that in the case put by him of my being suddenly called on to show how I came by a current five-dollar bill in my pocket at this time.
    In regard to the ease of Yan Burén, 24 Miss. R., cited by me, and charged to be a dict'um of the judge delivering the opinion, in the point to which it was cited, I claim' that it is an express authority, recognizing and adopting the doctrine I have cited from the text-book. The court say that no objection is made to the admission of that part of the evidence of the witness detailing the conduct and action of the prisoner in pointing out the whiskey and sugar. These were facts which was certainly competent to prove. It is urged that as no objection was made in the court below to the admission of these facts, they were not presented in this court — were cor am non judice — md hence what is said of that matter is a dictum. Well, I was counsel for the prisoner in the court below, and know that the reason why no objection was made to their- admission in evidence, is the. very one given by the court here, because “ they were facts which it certainly was competent to prove.”
    In reference to Jordan’s case, 32 Miss. R., relied upon as a direct authority against me, and against the dictum of Judge Yerger, as it is called, in Yan Buren’s case, I have nothing to add to what I said in my oral argument. It is always an ungracious taslc to indulge in criticism upon an opinion before the court that delivered it. I am perfectly willing to trust’this enlightened court to review that opinion, when it is suggested that possibly it may have gone beyond the true rule. If it has, its own discrimination will be much more apt than my poor powers of analysis to detect it, and its enlightened sense of justice will be siu-e to correct any errors it may detect.
    On the point embraced in the objection to the second instruction given on behalf of the state, I shall have very little to say, for the reason that almost everything I have said on the first point, viz., the alleged error in the admission of the evidence of Denny and Strout as to the confession or acts of plaintiff in error, is as applicable to this as to that point, the instruction assuming and being predicated upon the evidence of those witnesses. If their testimony was improperly admitted, on the point of plaintiff’s confession or acts, the court will reverse for that reason. .If properly admitted, I maintain that the instruction is correct. Because there was that presumption of guilt before spoken of, which, unexplained and unrebutted by plaintiff in error, was sufficient to warrant his conviction. I can refer on this point only to a single case. Sartorious v. The State, 24 Miss,, 602. The ruling of this court on the second instruction given on behalf of the state in that case, settles, as I think, the whole question arising on the second error ■ assigned in this case.
   Handy, J.:

The plaintiff in error was indicted and convicted for stealing certain bank-bills of the denomination of five dollars, the property of one Ephraim Strout.

The grounds of error relied on are—

1. The admission, as evidence in behalf of the prosecution, of certain acts of the accused in showing where .a part of the stolen property was placed; which acts were done after, and in consequence of his having made a confession of his guilt under such circumstances as to render that confession inadmissible.

2. The giving of the second instruction to the' jury in behalf of the prosecution.

In relation to the first ground of error, it appears that two witnessesTw'ere introduced in behalf of the state on the trial. The first of these was Strout, the owner of the stolen property, who testified that he lost one hundred and sixty dollars in banknotes, of the Empire Bank, of the state of Georgia; that the accused had been to his house on Saturday, the day before he missed the money; that the witness kept his money in a pocketbook, which he laid up behind the clock on the mantle-piece, and that the money was all in five-dollar bills; that witness at first thought the money was taken by some persons who were working about his house, but he afterwards suspected the accused of stealing it, and charged him with it. He further testified, that when he so charged him, which was about three weeks after the money was lost, he told the accused that if he would confess all about it, and tell where the money was, and give it up and leave the country, he would not prosecute him; and thereupon the accused told where the money was, and confessed having taken it. Hpon motion of the accused, this testimony as to his statements and confessions, under the circumstances, was held by the court to be incompetent, and was excluded from the jury.

The witness was then asked by the district attorney to state what the (teemed did in regard to showing the money; and he testified that the accused went to the corn-crib, and got ninety dollars of the money out of the crib and gave it to witness; that witness saw him get the money, and that it was all of the same kind that witness had lost — all in five-dollar bills, and that witness believed them to be his. The accused objected to this testimony as inadmissible; but it was permitted to go to the jury, and exception taken thereto. And this is the first point to be considered.

It will be observed that none of the declarations or confessions made by tbe accused to this witness were permitted to go in evidence to tbe jury, and consequently no question arises as to tbe competency of such declarations, under the circumstances of tbe case. Tbe testimony admitted went solely to tbe acts and conduct of tbe accused, in showing where tbe money was, and in producing and delivering it to tbe witness, and to tbe identification of tbe money shown and produced.

Whatever diversity of opinion may exist upon tbe question, whether confessions improperly obtained, and which are verified and corroborated by facts and circumstances afterwards found to be in accordance with tbe statement of facts made in tbe confession, are’ admissible in evidence on account of tbe corroboration, there can be no doubt but that acts of tbe accused done in consequence of tbe inadmissible confession, and tending to show bis guilt, should be received in evidence. This was held in "Waricksball’s case, 1 Leach, 298; Mosey’s case, ib., 301; and it is stated by all tbe text-writers upon, tbe subject as tbe correct rule. 2 Buss, on Cr., 863 (7th Amer. ed.); 1 Phill. Ev., 116 (4th Amer. ed.). And it is also laid down that it is competent to show that the witness was directed by the accused where to find tbe goods, and that they were found there accordingly, but not the acknowledgment of the accused that he stole them or put them there. 2 East PL Or., 658; 2 Buss. Or., 862.

In such cases it is not the confession of the party that is received in evidence against him, but the facts which are brought to light by his acts, and in consequence of his confessions. It will not do to say that the acts, having been brought about by improper means, are of the same character as confessions produced by the' same means, and the influence which produced groundless confessions might also produce groundless conduct; for when the acts of the accused point out and produce the stolen ju’operty in its place of concealment, that fact speaks for itself, and is inconsistent alike with the idea of falsehood and of innocence. Property so concealed must be considered as in the custody of the accused, and his production of it is equivalent to its being found upon his person, or in his private keeping at his house; and in such cases, the finding or production of the property is evidence of guilt. The testimony permitted by the court to go to the jury was simply, in substance, that the witness charged the accused with stealing the money, and thereupon the accused showed the place where it was concealed, and produced and delivered it to the witness. If the money produced was the same which was stolen from the witness, there cannot be a doubt as to the competency of the testimony.

Was the money, then, sufficiently identified? The witness testified that the bills were all of the same bank and of the same denomination as those lost by him, and that he believed them to be his. This correspondence, taken in connection with a number of them of so small a denomination, and the fact that the witness believed them to be his, would go far to cast a suspicion upon the possession by the accused. But the fact that, upon being charged with stealing them, as the money of the witness, he produced them from the place of concealment and delivered them to the witness, is conclusive of their identity.

We think, therefore, that this testimony, was properly admitted.

The second witness introduced was one Denny, who testified, in substance, that, in consequence of promises of protection made by him, the accused acknowledged his guilt. This was ruled out upon the objection of the accused, and the witness was then requested to state what the accused did in regard to the money. He testified that the accused and witness and one Matthis went to the house of the accused, and that presently the accused went out of doors to get some fuel, and that witness remarked that he stayed a good while, and requested Matthis to go and see where he was; that Matthis went out, and presently there was a rap at the door, and Matthis told witness to come out there, and did so, and went around to the chimney where they were; that .thereupon Matthis handed witness some money, and requested him to count it, which he did, and found there were fifty-five dollars in bank-bills of five dollars, but witness did not know and could not state what banks they were on.

This testimony was objected to by the accused, but was permitted to go to the jury, and exception taken.

The facts here shown are quite different from those stated by the preceding witness. The bank-notes referred to are not shown to have been in the possession of the accused, or that he had any connection with them: It simply appears that they were produced by Matthis, who handed them to witness, requesting him to count them. Nothing is shown to explain why or how Matthis had possession of them, or why he handed them to the witness to count; nor is there anything to identify them with the notes stolen from the witness Strout. Giving to the facts stated by this witness all the force which they properly could have, they showed nothing tending to fix upon the accused the charge for which he is indicted. Nor was there any other evidence to supply the vagueness and irrelevancy of the testimony. To give it any force' against the accused, the jury would have had to indulge in unwarrantable conjectures to his prejudice.

It was, therefore, improperly admitted, and the objection to it should have been sustained.

The second instruction given in behalf of the state is as follows :

“ If the evidence satisfy the jury that Ephraim Strout lost bank-bills, and that they, or a part of them, had been found in defendant’s possession shortly after, in the absence of other evidence proving how defendant came into possession, they will find him guilty.”

The first objection taken to this instruction is,.“that it dispenses with the necessity of proving that the bank-bills were stolen from the owner; in consequence of which the accused might have been convicted under the indictment from the mere fact of possession of the bills unaccounted for, though they may have been casually lost by the owner, and had not been stolen.”

It is true that the word lost is employed in the instruction; but that is a general word, which embraces a loss by stealing or by any act of another, as well as by the act of the owner himself, or by casualty; the evidence tending strongly to show that the money was lost by stealing, and there was nothing tending to show that it was casually lost. The general term used in the instruction must be taken with reference to the charge against the accused and the evidence offered in support of it, and must be understood with reference to such loss as the evidence tended to establish, which was by stealing. "We do not consider the instruction erroneous in this respect, though it is true that the word stolen is more precise, and the better term to be employed. The phraseology could not have reasonably misled the jury, under the circumstances of the case.

It is further objected that the instruction renders the possession of the bank-bills by the accused, shortly after they were lost by the owner, conclusive evidence of guilt, whereas it merely creates a presumption of guilt. The general rule is undoubtedly well settled that the possession by a party of stolen goods, shortly after their loss by the owner, is presumptive evidence of guilt, which, however, may be explained; and if the party in whose possession they were found fails satisfactorily to account for his possession, the presumption of guilt, arising from the recent loss by taking, and the. possession, will stand, and warrant a conviction. "What will be sufficient to account for the possession, or to remove the presumption that may arise therefrom, will depend much upon the length of time which intervened between the loss by the owner and the discovery of possession in the party charged, the nature and character of the goods, and all the circumstances of the case; and this, for the most part, is to be determined by the jury. These points might have been made the subject of instruction at the instance of the accused, and the attention of the jury might have been thereby directed to the shortness of the time, as shown by the evidence, in connection with the nature of the articles. But as the instruction stands, it does not take these considerations from the jury, but leave it open for the jury to determine the question whether the time shown was short, under- the circumstances; and under it, that question might have been fully argued to the jury. If they were of the opinion, from the circumstances, as it must be presumed they were, that the time of production of the money by the accused was sufficiently short to raise the presumption of his guilt, and there was no explanation of his possession, the presumption of fact was not removed; and they were properly instructed that, in such case, they should find a verdict of conviction. This was the subject of the instruction, and we consider the general proposition contained in it correct.

For the error in admitting the testimony of the witness Denny, the judgment must be reversed, and the cause remanded for a new trial. 
      
       Archbold Cr. Pr. & Pl., 181; 2 Hawk., c. 46, § 38; Holt’s N. P., 498; Charity Jackson’s case, 1 C. H. Rec., 28; Tucker’s case, 5 ib., 164; 2 Curw. Hawk., 595; State v. Aaron, 1 South., 235; Com. v. Knapp, 9 Pick., 496, 511; State v. Vaigneur, 5 Richardson, 391; State v. Motley, 7 ib., 327; Stage’s case, 5 C. H. Rec., 177, 178; 5 ib., 164, 166; Rex. v. Griffin, Russ. & Ry., 150; Rex v. Jones, ib., 151; State v. Moore, 1 Hayw., 482; 2 Russell on Crimes, 861-2-3-4; 1 Phill. Ev., 411; Rex v. Harris, R. & M. C. C. R., 338; Allison’s Cr. Law of Scotland, 583; Joy, 84; Lockhart’s case, 1 Leach, 386; State v. Crank, 2 Bailey, 67; Roscoe Dig. Cr. Ev., 36, n.; 1 East P. C., 658; 2 ib., 658; Hudson v. State, 9 Yerg., 408; State v. Brick, 2 Harrington, 530. The more established rule, according to later practice and later authorities, is, that soinuoh of the confession as relates sti'iotly to the fact discovered by it may he given in evidence; for the reason of rejecting extorted confessions is the apprehension that the prisoner may have been induced to say what is false; but the fact discovered shows that so much of tho confession as immediately relates to it is true. 1 Leach, 265; 2 East P. C., 658. Thus it is proper, and is now tho common practice, to leavo to the consideration of the jury, where a confession has been improperly obtained, tho fact of the witness having been directed by the prisoner whore to find the goods, and his having found them accordingly, but not the acknowledgment of the prisoner having stolen or put them there, which is to be collected or not from all the circumstances of the case. 2 East P. C., 658; Russoll on Crimes, 802; Wharton Am. Cr. Law, 695; Hudson v. State, 9 Yerg., 408; State v. Brick, 2 Harring., 530; State v. Crank, 2 Bailey, 67; Deathridge v. State, 1 Sneed, 75; Jordan v. State, 31 Miss., 382; Duffey v. People, 12 E. P. Smith, 589; Jane v. Com., 2 Metc., 30; Rex v. Leatham, 8 Cox C. C., 498; Rex v. Gould, 9 C. & P., 364; Rex v. Evans, Harris, and Butler, 1 Moody C. C., 338; Rex v. Cain, 1 Crawford & Dix C. C. 371.
     
      
       See cases cited in note (*), supra.
      
     