
    Peter, a Slave, vs. The State of Mississippi.
    It is error to permit a justice of the peace to testify, from his recollection of the confessions of a prisoner upon the preliminary examination before him, where it also appeared in evidence that the same justice of the peace had taken his confession down in writing at the time, the non-production of which was not accounted for.
    Confessions made by a prisoner under the influence of a sufficient threat or promise, are inadmissible as evidence ;. subsequent confessions, however, made not under the influence of the previous threats or promise, are admissible.
    The presumption of law is, that the influence of a threat or promise, once made, continues to operate; this presumption may be rebutted by other proofs, showing that it had ceased to operate.
    Where a slave, who had been charged with crime, and was threatened by a party armed with guns, that if he did not confess he would be hung, did confess his guilt, and shortly afterwards was taken before a magistrate, in the presence of some of the same persons, and was interrogated by the magistrate as to his guilt, without being previously cautioned by the magistrate of the effect of his replies, and again made confession of his guilt; held, that the last confessions of the accused were not properly admissible as evidence against him.
    In error, from the Franklin circuit court.
    The plaintiff in error, Peler, a slave, the property of James Harrington, was indictéd for the murder, on the 14th of April, 1837, of one Samuel Harvey. The case was tried before the circuit court of Lawrence county, and the jury not agreeing, were discharged; the presiding judge, at a subsequent term of the court, having been of counsel in the cause, the venue by consent was changed to Copiah county. The case, however, not being transferred, at a subsequent term of the court, by consent of the parties, one of the members of the bar presided at the trial of the case, in the place of the circuit judge, who felt himself disqualified by reason of having been of counsel. The jury, on the second trial, found the prisoner guilty, and the special judge refused him a new trial, and sentenced him to be hung.
    Twelve bills of exception were sealed during the progress of the case, and the cause was taken to the high court of errors and appeals, who reversed the judgment of the circuit judge, and remanded the case. A report of the case will be found in 6 Howard’s Reports, 326.
    Afterwards, upon affidavit of the master of the slave, duly supported, the venue was changed by the court to Lawrence county, where another trial was had, and the prisoner again convicted.
    The evidence adduced at the last trial was as follows:
    John P. Stewart testified, that he was an examining justice of the peace, when the prisoner, shortly after his arrest and before his commitment, was brought before him; when the prisoner confessed that he and another negro, named Tom, agreed to kill the overseer for Tom’s master; that the deceased, with a gun on his shoulder, passed through the woods where he and Tom were, when Tom killed him, by beating him to death with his own gun ; he, the prisoner, not assisting, but standing by, ready to assist if it had been necessary; that it was not necessary, Tom killing the deceased without difficulty. That he (the prisoner) did not know the overseer of Tom’s master, or Harvey, the deceased, and did not know Tom had killed the wrong man, until informed by Tom. The witness further testified, that before interrogating the prisoner, he gave him the instructions laid down in the Revised Code of 1822, in the fifth section of an act with reference to justices of the peace; and informed him that he had a right to ask any questions he might wish, but gave him no other charge or caution; that these confessions were taken down in writing by him at the time.
    The witness further testified, that the slave was brought before him by several persons, who remained and were present during his examination of the prisoner; thai these persons were some of them armed with guns, and had, so armed, conveyed the prisoner from his master’s place, where he had been arrested, to the magistrate, and that they formed part of a party who had gone to the master of the slave, had arrested the slave, and had in the prisoner’s presence made preparations to hang him, if he did not confess; at which time and place, when so threatened and surrounded, the prisoner had confessed to the same effect that he had confessed before the magistrate.
    The prisoner’s counsel moved to exclude the evidence of Stewart; but the motion was overruled, and exceptions taken. The prisoner was again sentenced to be hung, when he sued out this writ of error.
    The plaintiff in error assigned the following causes of error to the judgments of the circuit court:
    1. The court erred in permitting parol testimony of the prisoner’s confessions to go to the jury, as the said confessions were taken down in writing by the magistrate to whom they were made.
    2. The court erred in admitting the confessions of the prisoner under the circumstances.
    
      II. Cassidy, for plaintiff in error.
    Both the errors complained of are so contrary to principles of law long established as indisputable, that a reference to authority will show that the errors exist. That it was error to allow parol testimony of confessions taken down in writing, without showing a loss of the writing, is manifest from the general rule alone, that the best evidence the nature of the case will admit of will be required. But from the extremely doubtful character of this kind of testimony, that authenticity which the law requires in relation to such testimony should always be required. Hence, although the law permits parol testimony of confessions from necessity, yet not where a higher and more certain kind of testimony may be obtained. It is laid down in all the authorities that no parol testimony of confessions 'taken down in writing .’can be given. 2 Starkie on Evidence, 28, under the head of Admissions; 1 Hale, 2S4; 1 Phillips on Evidence, 113; 2 Cowen & Hill’s Notes, 243, note 213.
    The authorities are equally full upon the other error assigned. The confession made before, the magistrate ought not to have been admitted without some testimony to show a caution from the magistrate to the prisoner of such a character as would have apprized him of his rights, and warned him against relying on his confessions for favor or safety, in order that the fear which had not ceased to operate on his mind from his previous confessions, might have been removed. The confession is not considered voluntary so long as any influence, however slight, is operating on the mind of the prisoner. It is laid down, in Roscoe’s Criminal Evidence, that “ if a confession has been obtained from a prisoner by undue means, any statement after-wards made under the influence of that confession, cannot be admitted.” Roscoe’s Criminal Evidence, 37. The facts that make that principle applicable to the case before the court are as follows : The first confessions made by the prisoner to the mob, before he was taken to the magistrate, were ruled out by the court below, or not permitted to be given, on the ground, that the confession was extorted from the prisoner through fear of the gallows. We find further from the record that the prisoner again repeated these confessions before the magistrate. No evidence was given that the magistrate informed this ignorant slave of the effect of his confessions, or gave him warning not to rely on such confessions for any favor. The law is that there must be very strong evidence of an explicit warning by a magistrate not to rely on any expected favor, and that it ought most clearly to appear that the prisoner understood such warning before his subsequent confessions can be given in evidence. Roscoe’s Crim. Ev. 41; The record shows the only advice given by the magistrate ,t° the prisoner was that which he is required, by the fifth section of an act entitled an act concerning the appointment, jurisdiction and powers of justices of the peace, to give — merely to inform the prisoner of his privilege to ask any question he may think proper. This information could not possibly answer the purpose of a caution or warning within the letter or spirit of the law. There ought to be strong evidence to show that the impression, under which the first confession had been made, was afterwards removed before the second confession can be received. Roscoe’s Crinx Ev. 42 and 43; 1 Phillips on Ev. 112. No evidence was offered to show that the undue influence which had been exercised on the prisoner’s mind when the first confessions had been made, and which undue influence the court deemed of such a strong and improper character as to exclude the confessions thus extorted, had ceased to operate; but on the contrary every presumption that reason will dictate, forces the mind to an opposite conclusion.
    The prisoner was ignorant of his rights as one accused of crime, a slave, and preparations making in his presence for his immediate execution; men whom he regarded as the true arbiters of life and death, momentarily threatening him with death. Under the influence of a state of mind which these combined causes must have created, he confessed. He confessed that, too, which he deemed the most proper to relieve him from his present danger, facts which to his ignorant mind did not amount to crime, but directed the attention of his persecutors to the criminal, another 'negro. He perceived the effect which this confession had of relieving him from the jaws of immediate death. The same individuals, who thus, by means of threats, extorted a confession from him, a confession which for the time appeased their vengeance, guarded him with guns to the magistrate. To his ignorant mind what thoughts must this proceeding have aroused? No other than that he was taken before the magistrate solely for the purpose of repeating his former confessions. Doubtless he thought, from the efficacy of former confessions, that the repetition of them would restore him to safety, and relieve him from all danger. Laboring under these reflections he was intimidated by the presence of the same individuals who had previously been ready and willing to hang him; the same fears which before induced confession must have been again aroused. Na friendly voice admonished him of his rights or cautioned him of his danger. But in the midst of that angry multitude he became the pliant tool of fear, and prompted by its forebodings, spoke that which to him appeared the only talisman to avert destruction, appease their wrath, or allay their vengeance. The consequence was a confession upon which he was convicted. And to what conclusion has this court arrived, in a similar state of facts in the case of Serpentine v. The State, 1 Howard, 259, 260 ? The presumption must clearly arise, say the court, that the prisoner, at the time of making his confession, surrounded as he was by those who, but a few hours before had manifested a purpose of coercing a confession, ignorant of the language of those who surrounded him, (especially the legal terms, and many other used by the magistrate,) without assurances of safety, or a warning of the consequences of a confession, labored under an impression that he had been brought before the magistrate for the purpose of acknowledging the murder. If so, the confession of the prisoner ought not to have been given in evidence against him, under a rule of law universally recognized to be founded not only in the dictates of humanity, but upon the soundest principles of reason. 1 Howard’s Rep. 259, 260.
    
      J. D. Freeman, attorney general, contra.
   Mr. Justice Teacher

delivered the opinion of the court.

This was an’ indictment for murder, upon the trial of which a verdict of guilty was found by the jury.

It is admitted, by the attorney general, that the court below erred, in permitting a justice of the peace, upon the trial, to testify from his recollection of the confessions of the accused, upon the preliminary examination had before him, when it also appeared in evidence that the same justice of the peace had taken that confession in writing, and there was no evidence of the loss of that confession so taken in writing, and no other satisfactory legal reasons given for its non-production. This court is inclined to take a similar view of the law upon this point.

This court, nevertheless, is desired, in view of a new trial, to express its opinion upon another ground insisted upon as error, in the trial below.

It appears, from the bill of exceptions in the record, that shortly after the arrest of the prisoner, and before any commitment had taken place, he was brought before the justice of the peace, whose testimony is above referred to, for examination, on a charge of murder. In his testimony, the justice of

* the peace says, that upon the accused being brought before him, he informed him of his privilege to ask any questions he might think proper, but that he gave him no further caution or charge, as he recollected. He then proceeded to take the information of the accused in writing. It likewise appears, from the bill of exceptions, that a number of persons had collected at the house of the owner of the accused, who, in the presence of the accused, threatened him with death by hanging, by which means confessions had been extorted from him ; and that some of those persons, armed with guns, were among those who escorted the accused to the office of the aforesaid justice of the peace, and were present there during his examination.

The general rule of law, upon the subject of confessions, is, that when made under the influence of a sufficient threat, or a sufficient promise, they are inadmissible as evidence. So it has been the common practice, when a prisoner has been once induced to confess upon a promise or a threat, to reject any subsequent confession of the same or like facts, though at a subsequent time. East’s P. C. 2, 658. But it has been further and frequently held, that notwithstanding such threat or promise may have been used, the confession is admissible, if made under such circumstances as to create a reasonable presumption that the threat or promise had no influence, or had ceased to have any influence upon the mind of the party. Roscoe’s C. E. 30. In this case, the original confession of the accused, made to the persons collected at the house of his owner, as we gather them from the whole record, had, in law, an effect against himself, though perhaps not so designed by him. This was ruled out of the evidence in the court below, as having been improperly obtained. It remains, then, to inquire, whether the confession, made before the justice of the peace, was induced by the original threats, for if otherwise induced, and from voluntary information, it was good. Moore v. The Commonwealth, 2 Leigh, 701. The presumption is, that the influence of the threats continues, and such presumption must be overcome. State v. Guild, 5 Halst. 163. But such presumption may be removed by th& length of time intervening between the threats and the examination, from proper warning of the consequences of such confession, or from any other circumstances that might reasonably be considered sufficient to dispel the fears induced by the threats. Ib. Was then the second confession, in this instance, made under the same influence that produced the first 1 The lapse of time between the two confessions would seem not to have been great, since the bill of exceptions informs us, that the prisoner was brought before the justice of the peace “ shortly after his arrest.” The. effect of time, in effacing the influence upon the mind, cannot fairly be supposed to .have operated upon the accused. Next, when brought before the justice of the peace, it appears that no caution was given to the accused, respecting the effect of his confessions, and that, thus unwarned, he proceeded to detail statements that fatally criminated himself. Upon this point, it is laid down in East’s P. C. 2, 658, quoting the opinion of Buller, J., that there must be very clear and strong evidence of explicit warning by the magistrate, of the consequences of confession, after the fact is known of the existence of either the influence of hope or fear superinducing confession ; and it should likewise be manifest, that the prisoner understood such warning, before his subsequent confession could be given in evidence. Lastly, there was nothing in the circumstances attending the subsequent confession, that would have had the effect to dispel the fears previously created in the mind of the accused. Being a slave,'he must be presumed to have been ignorant of the protection from sudden violence, which the presence of the justice of the peace afforded him, and he saw himself surrounded by some of those before whom he had recently made a confession. As we gather from the whole record, he then reiterated his previous confession. This court has before, under similar circumstances, refused to acknowledge such confessions as evidence. Serpentine v. The State, 1 H. 256. It is true, that by adopting this rule the truth may sometimes be rejected; but it effects a greater object, in guarding against the possibility of an innocent person being convicted, who from weakness has been seduced to accuse himself, in hopes of obtaining thereby more favor, or from fear of meeting with immediate or worse punishment. We conclude that, as the facts are disclosed in the record, the confession was improperly admitted in evidence.

The judgment of the court below is reversed, and a venire de novo must be awarded by the circuit court of Lawrence county.  