
    Hamilton v. The State.
    A prisoner indicted for a crime requested a continuance on account of the judge having been employed by him as counsel before his election to the bench; but the state waived any objection to the judge on that account. Held, that the continuance was properly refused.
    The prisoner then moved for a continuance in order to procure the testimony of an absent witness; but the state admitted that the witness Would swear to the facts alleged in the prisoner's affidavit, but reserved the right to impeach her credibility. Held, that the motion was correctly overruled.
    The prisoner then moved for a continuance upon an affidavit stating- that he was informed that morning only that one H. was to be introduced as a witness against him, and that he had, until then, believed that said H. Was confined in jail in Marion county, and, therefore, did not deem it necessary to subpoena witnesses to impeach his testimony, and that if the cause should be continued he could procure the attendance of witnesses whose names he could not then state, by whom he could prove that said H. was a man of bad geueral character and unworthy of belief, &a. Held, that the motion was rightly overruled.
    Confessions made by a prisoner, after he has been professionally advised of their effect, are admissible in evidence against him.
    It is not the duty of the Court to give irrelevant instructions to the jury.
    
      
      Friday, December 24.
    ERROR to the Wayne Circuit Court.
   Smith, J.

This was an indictment for arson. The defendant was found guilty and sentenced accordingly. Motions for a new trial and to arrest the judgment were overruled.

Upon the cause being called the defendant requested a continuance on the ground that the judge of the Court had been employed by him as counsel, before his election to the bench, and the counsel for the state thereupon waived any objection to the judge and a continuance was refused.

The defendant then moved for a continuance upon an affidavit stating that he could not safely go to trial, in consequence of the absence of a witness who would testify that on the night the arson was alleged to have been committed, the defendant was at the house of the witness from dusk until he went to bed, and was there early in the morning, and that he was not out of the house that night; whereupon the counsel for the state admitted that the witness named would testify to these facts, but reserved the right to impeach her credibility. The defendant insisted that the case should be continued unless the counsel for the state would admit the truth of the facts the evidence would conduce to prove, which he refused to do.

The defendant then moved again for a continuance upon an affidavit stating that he was informed that morning only, that one Harkrider was to be introduced as a witness against him, and that he had, until then, believed said Harkrider was confined in jail in Marion county, and, therefore, did not deem it necessary to subpoena witnesses to impeach his testimony; and that if the cause was continued he could procure the attendance of witnesses, whose names he could not then state, by whom he could prove that said Harkrider is a man of bad general character and unworthy of belief in a Court of justice.

The defendant has no reason to complain of the decisions of the Court overruling these several motions for a continuance. He had all the advantage he could have derived from the testimony of the witness named in his first affidavit if she had been personally present, and the other reasons offered for a continuance are manifestly insufficient.

On the trial, the prosecuting attorney offered to prove by certain admissions of the defendant that he had committed the offense charged against him, whereupon some testimony was elicited relative to the circumstances under which the admissions were made, with the view of showing that they had been extorted by improper influences. It appeared that thé defendant had been arrested on a charge of larceny, and, being taken into a room, inquiries were made of him relative to the arson which had been committed, in the presence of one Crawford, the proprietor of the building which had been burned, Jonathan Newman, and some other persons. A conversation then took place as to whether the defendant would be benefited by making a confession. Some of the persons present said they thought he would, and that if he became state’s evidence it would be easier for him, or that it was customary under such circumstances for a nolle prosequi to be entered. Others of the persons present told him that his admissions would not benefit him, and he was unwilling to make any admissions without the advice of a lawyer. An attorney at law was then sent for, who told the defendant that his confessions would be of no advantage to him, further than they might recommend him to the clemency of the Court, and that if he did make confessions he must do so in full view of all the circmhstances, and they might or might not operate in his favor.

After hearing this evidence the Court permitted the said Crawford and Newman to testify that, immediately after the conversation above stated, the defendant confessed to them that he had committed the offense charged in the indictment.

Afterward the defendant requested the Court to instruct the jury, that if they believed the confessions made in the presence of Crawford and Newman were made under the influence of expectations of favor held out to the defendant, those confessions should be disregarded; which instruction the Court refused to give.

J. S. Newman, J. P. Siddall, and N. H. Johnson, for the plaintiff.

D. S. Gooding, for the state.

We think it sufficiently appears that the admissions objected to were not made under the influence of expectations of favor improperly held out to the defendant. It is shown that he did not depend upon the representations made by some of the persons present that he would be thereby benefited, but made the confessions after being warned by a lawyer sent for at his request, that such representations were erroneous. The admissions were, therefore, properly admitted in evidence, and the instruction asked for might have been correctly refused on the ground that it was irrelevant.

Per Curiam.

The judgment is affirmed with costs.  