
    Sam (a Slave) v. The State.
    1. Criminal laws: master and slave: confessions of slave admissible against him. — The confessions of a slave made to his master, are not privileged communications, and are properly admissible in evidence against him, if made freely and voluntarily, and without any undue influence being exerted to obtain them.
    2. Same. — The master, after the arrest of his slave, chained him, and whilst they were together alone, he asked the slave why he had burned his gin-house, — assuming, in the form in which he put the interrogatory, that the slave was guilty, but used no force to extort the confession,- — -whereupon the slave confessed the burning, and said he had eommited the crime, because he wished to be hung. Held, that no improper means were used to obtain the confession, and it was properly admissible in evidence against the slave.
    3. Same : proof of corpus delicti in a case of arson. — The corpus delicti in a case of arson, is the burning of the house; and if that fact be established by other evidence, the confessions of the accused are competent to show that the burning was felonious, and that he was the criminal agent.
    In error from the Circuit Court of Holmes county. Hon. E. Gr. Henry, judge.
    
      J. M. Dyer, for plaintiff in error.
    1st. Tbe Circuit Court erred in admitting the confessions of the prisoner to' John A. Durden, his master, that he burnt the gin, to go to the jury.
    2d. The corpus delicti was not sufficiently proven, by other testimony, to warrant a verdict of guilty upon the confessions of Sam.
    3d. A new trial should have been granted.
    1st. Durden, the master of Sam, should not have been allowed to testify as to Sam’s confessions to him: they should have been excluded.
    
      The slave is under the complete dominion of the master. He has an almost absolute control over his body and mind. He is accustomed to obey his slightest command. He does not attempt to reason or argue with his master. From infancy to old age, from the cradle to the grave, he is taught that it is alike a necessity and a virtue to submit implicitly to the will, or what he conceives to be the will, of his master. Being thus under the control of the master, and feeling it his duty to yield submissively to him, if the master assumes that he has committed a crime, and charges it on him, he will, in nine times out of ten, not have the firmness or independence to deny it, but will almost invariably confess it, though he may be innocent, hoping to avert punishment, or propitiate the favor of his owner. Such confessions are, consequently, of but little value, and are questionable guides to truth.
    The master is made, by our law, the guardian and defender of his slave. He is under the strongest obligation to defend him. By his condition in life, the slave is unable to protect himself. Without education or intelligence, he is too ignorant to know his rights; and as his master receives the fruits of his labor’, he has no means to assert them. As the master receives the proceeds of his labor and services, he is bound, by every consideration of right and justice, to defend him from wrong and injury. And if he fails to employ counsel, the statute directs that the court shall assign counsel to defend him, and order the master to pay therefor. Hutch. Code, p. 527, sec. 6. It is true that the sum directed to be paid is small; but it is sufficient to show that he is required by law to defend the slave. If he is required to defend him, then I insist he cannot divulge any confessions which may be made to him by the slave. He is the medium of communication with the counsel. The slave must talk fully and freely with the master, otherwise a successful defence cannot be made. Confessions will necessarily be made which would often be injurious to the slave; and hence, from the necessity of the case, they must not be allowed to be divulged. If they can be divulged, the master, instead of being the defender of his slave, will often be his most deadly foe, and will be the means of subjecting him to punishment, in many cases where he is innocent. The confessions of a client to his attorney are privileged: he cannot divulge them. Public policy forbids it. If such communications were not privileged, no man could safely employ an attorney. The same reasons and considerations which prohibit an attorney from disclosing the confidential communications of his client to him, equally forbid a master’s disclosing the confessions of his slave. As to any act of his slave, he, of course, can testify.
    In the case of the State v. Charity, 2 Devereux’s Rep. 548 (also reported in Wheeler on Slavery, 214), this question is thoroughly and ably examined, and the court there decided that a master could not give evidence Of his slave’s confessions of guilt to him. This decision, it seems to me, accords with reason, sound principle, and, above all, with humanity, and should, I think, receive the sanction of this court.
    It will be seen, upon examination of the record, that if Mr. Durden’s evidence, as to Sam’s confessions, are excluded, there is no proof whatever that he burnt the gin, or that it was burnt feloniously by any one.
    2d. The corpus delicti, or felonious burning of the gin, was not proven by any other evidence, than the confessions of Sam to his master, and hence the verdict was not warranted, and should have been set aside, even supposing that Durden’s testimony was competent.
    In 1 Greenleaf Ev. 825, sec. 217, it is said that, “ In the United States, the prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction;” and, he adds, “ this opinion certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the confessions in other cases, and it seems countenanced by approved writers on this branch of the law.” In support of this doctrine, he cites Guild’s case, 5 Halst. 163, 185; Long’s case, 1 Hayw. 524; 4 Hawk. PI. Or. 425, B. 2, ch. 46, sec. 36.
    What is meant by the corpus delicti as applied to this case ? It does not mean the simple burning of the gin, for that may have been accidental, and, therefore, no crime; but it means the felonious or criminal burning of it; and that felonious or criminal burning, according to the foregoing authorities, must be proved otherwise than by the prisoner’s confessions. The body of the offence, or crime, must be established by testimony independent of the confessions, and the latter serve, on account of the little weight attached to them, merely to point out the person who did the deed.
    If I am correct in this position, it follows that the verdict is wrong, because there is no evidence in the record, but Sam’s confessions to Mr. Durden, tending even, to prove that the gin was criminally burnt. Stout and Durden were the only witnesses examined. The former states that he was absent when the gin was burnt, and does not know whether it accidentally caught fire or how it was burnt. He does not state that the gin was not ginning when it took fire. If it was, it may have taken fire from friction, or from the light used at night by the ginner, or it might have been struck by lightning, or caught fire in many ways, without ascribing guilt to any one. It is certainly no unusual thing for gins to be carelessly and accidentally burnt in this State. All that Mr. Durden knows about the criminal burning of the gin is from the confessions of Sam. He, however, states one circumstance that tends strongly to show that Sam could not have been the incendiary, and that is, that he was apprehended in Granada, about sixty miles distant from his plantation, two or three days after the burning, and as it is presumable that the negro travelled by night, as runaways usually do, it is a strong circumstance to establish an alibi.
    3d. If Durden’s evidence, as’to the prisoner’s confessions, were improperly admitted, or if the corpus delicti was not proved without the confessions, as I think I have clearly shown it was not, a new trial should have been granted.
    
      D. 0. Crlenn, attorney-general for the State.
   Handy, J.,

delivered the opinion of the court.

The plaintiff in error was indicted and convicted in the court below, of burning a gin and cotton-house, contrai'y to the statute; and the case is brought here for review, upon two grounds of error.

First. The master of the slave was offered as a witness in behalf of the State, and for the purpose of proving confessions by the prisoner of his guilt. The witness testified that the prisoner was taken up about sixty miles from the place where the burning took place, and two or three days thereafter. That when the witness got possession of him, he chained his legs together, and brought him home in the stage-coach, along with him. That witness then asked him why he burned the gin-house, and he replied, that he did so because he wished to be hung; and that wdtness assumed in the questions he asked him, that he had burned the gin-house, but that no force was used to extort the confessions, and that the witness knew nothing of his own knowledge as to how the gin-house was burned, though he knew the fact that it was burned. The prisoner objected to the admission of the statements of the prisoner to his master; but the objection was overruled, and exception taken; and this is the first ground of error relied on.

It is contended that it is not competent to give evidence of the confessions of a slave made to his master, because he is under the constraint of the master, and the confessions cannot be considered as being made freely and voluntarily, and without some degree of influence arising from the presence of the master, and obedience to his wishes.

The relation which the slave bears to the master, is certainly one of dependence and obedience, but it is not necessarily one of constraint and duress. It is not to be presumed that the master exercises an undue influence over his slave to induce him to make confessions tending to convict him of a capital offence, because besides the feelings of justice and humanity, which would forbid such efforts, it would be against the interest of the master that the slave should make confessions which would forfeit his life; for he would thereby sustain a loss to the amount of one-half of the value of the slave. Nor is it to be presumed, that the slave will make confessions to his master, tending to convict him of a crime for which he would suffer death, with a view of yielding to the wishes of the master, and when he was aware of the consequence of the commission of the crime; for that would be in opposition to all the promptings of self-preservation, the most powerful of all motives. It is rather to be presumed,' that he would deny his guilt, relying on the protection of the master, in the absence of inculpatory evidence. For the hope of protection from the master, in consequence of the denial, is a much more natural and reasonable motive, and far more just to the humane feelings of the master, than that of self-sacrifice to the master’s cruelty. And the force of this motive is illustrated by the humane conduct which constant experience shows to be exhibited by masters, in the just and reasonable defence of their slaves, when charged with the commission of crimes.

Although such confessions should be received with great caution, and excluded where there is anything tending to show that they were induced by fear, or by hopes of favor, or by undue influence of any description, we do not consider them inadmissible where there are no such circumstances shown; and we can perceive no danger in submitting them to be weighed by the jury. Such confessions are not incompetent upon any sound legal principle; and to establish the rule that they are incompetent, would he highly impolitic and dangerous; because, from the nature of the connection between master and slave, if confessions fully made to him should not be admissible, they would not be likely to be made to any others; and thus, however true the confessions, and however strongly corroboi’ated by circumstances,'all violations of law committed by slaves, the proof of which depended on that sort of evidence, would go unpunished in the courts of justice. And the consequence of this would be, that a disposition would be created to punish slaves, otherwise than according to the rules and restraints of the law, which should operate, both in its protection and in its punishments, upon them, as well as upon the white man.

We, therefore, think that-this objection was properly overruled.

Secondly. It is objected that, as there was no evidence of the felonious burning, besides the confessions of the prisoner, his confessions alone were not sufficient to support the indictment, upon the established principle that, where the corpus delicti is not otherwise proved, the prisoner’s confession is not sufficient to warrant his conviction; and it is said that the corpus delicti consists in the felonious burning of the gin-house.

The main fact, necessary to be established as the basis of the prosecution, was that the house had been burned; for without that, there could be no guilt in any one. After proof of that fact, it was necessary to prove how it was done, and by whom ; and these particulars could be established by any evidence which was competent in law, and sufficient in its force to satisfy the mind. The rule with regard to proof of the corpus delicti, apart from the mere confessions of the accused, proceeds upon the reason that the general fact, without which there could be no guilt, either in the accused or in any one else, must be established, before any one could be convicted of the perpetration of the alleged criminal act which caused1 it; as in cases of homicide, the death must be shown ; in larceny, it must be proved that the goods were lost by the owner; and in arson, that the house had been burned; for otherwise, the accused might be convicted of murder, when the person alleged to be murdered was alive; or of larceny, when the owner had not lost the goods; or of arson, when the house was not burned. But when the general fact is proved, the foundation is laid, and it is competent to show by any legal and sufficient evidence, how and by whom the act was committed, and that it was done criminally.

Here the burning was proved apart from the prisoner’s confessions, and the confessions were, therefore, properly admitted in evidence.

We think that there is no error in the record, and consequently the judgment must be affirmed.  