
    Frank (a slave) v. The State.
    1. Confessions: must be voluntary: case in judgment. — The fact that another slave was whipped, in the hearing of the accused, “in relation to matters connected with the offence with which the accused is charged,” does not make a confession, soon afterwards made by the accused, otherwise than free and voluntary ; for, it not appearing that the whipping of the other slave was done for the purpose of coercing any confession or discovery from him in relation to the crime charged against the accused, it is not shown that the whipping could have had any influence on the accused to cause him to make a confession.
    2. Same: same: what inducements'do and do not make confession inadmissible. — To be competent evidence, a confession should be free and voluntary and not induced by any thing reasonably tending to hold out the hope or promise of reward or benefit for making it, or of punishment .or injury for a failure to confess ; but this rule does not exclude confessions made on inducements not of the character above described, such as appeals having reference to the character and circumstances of the accused, to his family connection and situation in life, to the claims'of justice and of others whose rights and safety are involved in his declaring the truth, and to his responsibility to God; and hence an instruction which directed the jury to disregard the confession of the accused, if it were made under any inducements whatever, is erroneous and ought not to be given.
    3. Instructions : must be relevant. — Instructions to the jury, though correct as abstract principles of law, are erroneous if not applicable to the evidence in the cause.
    
      4. Evidence:: burglary: when possession oe-stolen goods presumptive evidence oe burglary. — Though 'the finding of stolen .goods in possession of tlie accused, or their discovery at a place where they have been hid in consequence of information derived from him, is generally presumptive evidence of larceny only by the accused, yet, if a burglary be proven to have been committed, and .the accused makes a circumstantial confession of his entry of the house and taking of the goods, and then discloses the place of their concealment, in accordance with which they were found, such disclosure and finding are presumptive evidence that the accused committed the burglary.
    5. Burglary: raising oe wiNDOW-SAsn sufficient breaking. — The raising of a window-sash which was down, and which was the only obstacle to ingress through the window, and the entry of the accused through the same, is a'sufficient breaking in law to constitute burglary. See The State v. Boon, 13 Iredell B. 244; Bex v. Bussell, B. & M. 377 : 2 Whart. Am. Crim. Law, 5th ed., sec. 1541.
    6. New trial : newly-discovered evidence : rule in relation to.— A new trial will not be granted for newly-discovered evidence, when it appears from the affidavits read in support of it, that the party asking the new trial must necessarily have been aware of the evidence when the trial was had.
    7. Jury : juror not a freeholder does not vitiate verdict : objection ON ACCOUNT TOO LATE AFTER verdict. — The fact that one of the jury was not a householder.or freeholder does .not vitiate the verdict: objectioirto a juror on that ground comes too late after verdict, even in a ' .capital case, where the juror, upon his examination by the judge, under a mistake answered that he was a householder or freeholder. See Williams v. The State; 37 IVIiss. B. 409.
    8. Arrest of judgment : granted only for matter on face of record. — A motion in arrest of judgment must be founded on some defect appearing on the face of record.
    Error to the Circuit Court of Hinds county. Hon. John "W atts, judge.
    The plaintiff in error was indicted for burglary. Plea, not guilty.
    On the trial, Austin Morgan, for the State, testified that in October, 1860, a day or two after- his house had been entered and robbed, he found prisoner at the calaboose in Jackson, under arrest. In presence of the witness and several others prisoner confessed that he had entered the house of the witness, about one o’clock at night, and had taken therefrom a black merino coat, a shirt, and some money; that he had entered the house by hoisting the sash of a window and going through it. That prisoner in his confession informed those present where the articles he had taken were to he found, which was in a thicket near the suburbs of Jackson, where he stated he had hid them. Witness further stated that the confession was not obtained by any inducement offered to the prisoner by him or any person in his.presence; “ but that they were whipping another negro in the calaboose-yard for matters connected with the offence of prisoner.” Witness proved the value of the coat to be fifteen dollars, and of the shirt seventy-five cents, and that they were found and.returned to him by C. E. Dickson and A. B. Coffee. He also proved that, at the time his house was entered, the said black merino coat and shirt and seven pieces of silver coin of the United States of the value of twenty-five cents each were taken .therefrom. He also stated that on the night his house was entered he retired to rest about eleven o’clock and placed his clothing' on a chair; that the window-sash was then down, and that it was the only fastening or security to prevent entrance through the window, there being no shutters and no fastening to keep the sash.down. ' That on awakening at daylight he found the window-sash up ; the said black merino coat and shirt, also his pantaloons and money, were gone; that he recovered the pantaloons, but not' the money; "that was afterwards refunded to him by J. M. .Crofford,' the owner of prisoner-. That on the outside under the window he found shoe-tracks. The impression of one of the shoes was very.plain'; the impression of the heel of the other shoe was not discovered, .but the track of the shoe was all visible excepf the. heel. The tracks appeared to have been made by .one shoe with a heel and another without a heel. Witness did not measure the.tracks,-but after-wards, upon seeing the shoes of the prisoner in the calaboose, he saw that one of them had a heel and one was without a heel.
    Cross-examined. Witness was asked, “If they were not whipping another negro at the .time in the calaboose-yard, in the hearing of prisoner, in relation to matters connected with the offence with which the defendant was charged.” He answered " that they were.” ' -
    The prisoner’s counsel then moved the court to exclude the confession of prisoner from the jury, because it did not appear to have been free and voluntary, and uninfluenced by fears of chastisement. The court overruled the motion, and prisoner excepted.
    A. B. Coffee, for the State, testified that he was present when the confession referred to by witness Morgan was made; that prisoner then directed witness and others where to go to find a certain carpet-bag, and that in company with others he proceeded to the place indicated by the prisoner, and there found the carpetbag, in which were the merino coat and the shirt claimed by witness Morgan, , and which were delivered to him by'witness.
    The State here closed.
    The prisoner then introduced. the said A. B. Coffee, and proposed to prove by him “ that he, witness, was present at the whipping of another negro in the calaboose before the confession to witness Morgan was made, and that the whipping had relation to the charge against the prisoner, or to the crime with which he was charged.” The court refused to allow this testimony to go to the jury, and the prisoner excepted.
    This was all the evidence.
    The court, at instance of the State, instructed the jury as follows:
    “ That the raising of a window-sash, which was the only fastening or security, and thereby entering a dwelling-house in the night-time by a slave, some white person being in the house at the time, with intent to steal, is burglary.”
    The prisoner asked for the following instructions:
    1. “In order to convict a defendant upon his own confession, it must be free and voluntary, and made under no inducement whatever;- and if the jury believe that any inducements were ' held out to defendant to confess, then the law is for the defendant.”
    ■ 2. “ That finding the articles according to the directions of the defendant is not presumptive evidence of the defendant’s guilt of the crime of burglary.”
    ■ 8. “ That any confessions made subsequently to the first, while laboring under the inducements offered in the first instance, are to be taken with caution; and if the jury believe from the evidence that defendant confessed subsequently while operated upon by any former inducements, then the law is for the defendant.”
    
      4. “ Circumstantial evidence is to be taken with much caution • and unless the jury are satisfied of the guilt of the defendant beyond a reasonable doubt, they will find for defendant.”
    The fourth charge was given, and the others refused.
    The verdict was, guilty.
    The prisoner moved for a new trial, because — -
    1. “ The verdict is contrary to law and evidence, there being no evidence of the breaking of the window or any other fastening-” .
    2. " The court erred in refusing prisoner’s first, second, and third charges.”
    3. “Surprise, in the absence of witnesses for the State, material for defendant.”
    
      4. “ The court erred in granting instructions for the State.”
    5. “New discovered testimony — viz., the testimony of A. B. Coffee — which shows that the confessions were extorted.”
    On the trial of this motion, the prisoner read the affidavit of A. B. Coffee, in-which he stated that he was present at a confession made by defendant to O. E. Dickson a few hours before the confession made by him to Morgan, and that “inducements and persuasions were used by said Dickson to the prisoner to confess ; and that prisoner did then and there confess to the entering of Morgan’s house and the taking therefrom the articles mentioned in the indictment.” That he never communicated' these facts to the prisoner’s counsel, nor to any other person he knew to be interested for the prisoner, and that. he does not believe that the prisoner or his counsel were aware of these facts.
    The motion was overruled.
    The prisoner then made a motion in arrest of judgment, for the reason: “ That Joseph Handgrove, one of the jury who found the verdict, is neither a freeholder nor householder, but was declared to be a competent juror by the court, upon his statement under oath that he was a freeholder, the juror laboring under a mistake as to the meaning of freeholder.”'
    On the trial of this motion the affidavit of said Handgrove was read, in which he stated that, upon his examination under oath by tbe court as to his competency as a juror, he answered that he was a freeholder. That this answer was made under a mistake as to the meaning of the term freeholder, and that he owned no- interest in land and did not keep a house.
    It was conceded on the trial of the motion that said Hand-grove was examined as to his qualifications as a juror, and that he had answered that he was a freeholder or householder, and that he was not further interrogated, but was accepted by the State and prisoner as a competent juror.
    The motion in arrest of judgment was overruled, and judgment pronounced against the prisoner; &nd he sued out this writ of error.
    
      J. G. Mor ¿head, for the plaintiff in error,
    Cited Stringfelbw v. The State, 26 Miss. E. 157 ; Peter v. The State, 4 S. & M. 31; Van Burén v. The State, Id. 512.
    
      Thomas J. Wharton, attorney-general, for the State.
    1. The raising of the window-sash was a sufficient breaking. 2 Wharton’s Crim. Law, 1543 ; 4 C. & P. 23T; 4 Black. Com. 226.
    2. The objection to the competency of the juror Handgrove comes too late, after verdict. Williams v. The State, 37 Miss. E. 409.
    3. The confessions were competent. Belotds case, 36 Miss. E. 96.
   Handy, J.,

delivered the opinion of the court:

' The first ground of error assigned is the overruling the motion for a new trial.

Upon this several points of objection are urged to the action of the court below, which will be considered in the order in which they are presented in the argument of the counsel for the plaintiff in error.

- 1. It is insisted that the court below erred in overruling the prisoner’s objection to the testimony of Austin Morgan and his motion to exclude that witness’s testimony.

The ground of that motion was, that the confession of the prisoner, testified to by the witness Morgan, was not freely and voluntarily made, because it appeared, from the testimony of that witness, that at the time, of the confession of the prisoner to the witness, and in the hearing of the prisoner, another negro slave was being whipped, "in relation" to 'matter's.connected with the offence with which the prisoner was charged.”

What was the particular cause of the whipping of the other slave, or whether it was because he was charged or suspected of a participation in the same offence charged against the prisoner, does not appear. For aught that appears, it might have been for resistance or other unlawful conduct of the slave. But it does not appear that it was done for the purpose of obtaining confessions from him, or that it was on account of the very same offence charged against the prisoner in this ease. As the matter is stated in the bill of exceptions, it is impossible to infer that that whipping could, with any reasonable probability, have operated on the mind of the prisoner to cause him to make an untrue confession of his own guilt in the matter charged against him. No threat or coercion whatever was used towards him; and if the treatment of the other slave could under any circumstances have the effect to destroy the force of the prisoner’s confession against himself, it would have to appear that the circumstances were such as to put the prisoner in such terror on his own account as plainly to destroy his free volition, and bring his confessions under the rule of illegal coercion. No such circumstances appear here; and we think that the objection and motion were properly overruled.

The second ground of error is, the refusal of the first, second, and third instructions asked in behalf of the prisoner.

■ The first instruction is, in substance, that a confession, to warrant a conviction, must' be free and voluntary and made under no inducements whatever; and if any inducements were held out to the prisoner to confess, his confession will.not warrant a conviction. ' " . •

This is certainly much broader than the well-recognized rule upon the subject. Any thing reasonably tending .to hold'out the hope or promise of reward or benefit for confession, or of punishment or injury for the failure to confess, is in law an unwarrantable inducement to confess, which renders the confession so obtained incompetent evidence. But there may be other “inducements” held out to a party, which are not within this rule. An appeal to the' character or circumstances of a party to his family connection and situation in life — to the claims of justice of others whose rights or safety were involved in his declaring the truth — to his responsibility to a tribunal above all earthly courts for his falsification or suppression of the truth — these and others might very naturally be an inducement” to a party to make a confession. Yet a confession so induced would not necessarily be incompetent; for the' inducement would not be illegal. The instruction was, therefore, in its terms erroneous. But it was properly refused also for another reason. There was no evidence to show that the confession of the prisoner was induced by illegal means; and hence the instruction, if correct in its terms, would merely have stated an abstract proposition, which was irrelevant to the case as presented by the evidence.

The third error assigned is, the refusal of the second instruction asked in behalf of the prisoner; • which was, in substance, that the finding of the articles stolen, according to the directions of the prisoner in his confession, is not presumptive evidence of his guilt of the crime of burglary.

It appears by the evidence that the prisoner had confessed circumstantially that he broke and entered the dwelling-house of the prosecutor, and took therefrom certain articles of property, and he gave directions where the articles had been placed, and that they wefre in a carpet-bag at that place; and upon search being immediately made, that the articles stolen were found in the carpet-bag and at the place stated by him. It also further appears that his manner of entering the house; as confessed by him, was corroborated .by facts stated by the witness, tending strongly to show that his confession as to the mode of entering the house was true.

The taking of the goods from the house was a part of the act of entering the house and intimately connected with it. The confession as to the taking of. the goods-and their place of deposit was, therefore, a confession of a material part of the crime; and if the goods were found, upon such, in the place and condition stated by him in his confession, this certainly tended strongly to show that the confession, both as to entering the house and taking the goods, was true. Hence it was presumptive evidence of his guilt of both of the material acts confessed by him.

The objections to the refusal of the third instruction asked in behalf of the prisoner are untenable for the reasons above stated upon the first instruction.

The next error assigned is the granting of the first instruction asked in behalf of the State, to the following effect: “ That the raising of a window-sash, which was the only fastening or security to the window, and thereby entering a dwelling-house in the night-time, by a slave, some white person being in the house at the time, with intent to steal, is burglary.”

The only question made on this instruction is, whether the raising of a window-sash, which was down and closed, and which was the only fastening to the window, and the entry of the party through the same into the house, is such a breáking in law as will constitute burglary. And it is well settled that it is. State v. Boon, 13 Iredell, 244; R. v. Russell, R. & M. 377; 2 Wharf. Am. Crim. Law, sec. 1541, 5th ed.

Again, it is assigned for error that the court improperly refused the motion for a new trial, which was made on the ground of newly-discovered evidence.

This newly-discovered evidence is shown by the affidavit of the witness Coffee to be, in substance, that the prisoner had made a confession to other persons to the same effect as that made by him to the witness Morgan, whose testimony was the cause of his conviction; that the confession to Morgan was made shortly after that to the other persons, and that, in obtaining the first confession, “inducements and persuasions were used,” by the person obtaining it, “to him to confess,” &c.

This affidavit does not show what was the nature of the “inducements and persuasions” held out to the prisoner to confess; and it was therefore insufficient to show that the confession was obtained by such means as to render it incompetent evidence, as is above shown.

But the affidavit is palpably insufficient in another respect. Although it states in terms that the affiant did not believe that the fact of the first confession of the prisoner was known to him or to his counsel at the time of the trial, yet the affidavit shows that it must have been known to the prisoner; for it was his own confession. There could not, therefore, be any pretence that it was newly-discovered’ evidence.

The last ground of error is the overruling of the motion in arrest of judgment. This motion was made on the ground that one of the jurors who tried the case and found the verdict was neither a freeholder nor householder, and hence that the jury was illegally constituted.

But it is settled that an objection of this sort comes too late after verdict; and that it is not of such a nature as to vitiate the verdict. Williams v. The State, 37 Miss. R. 409. But if this were otherwise, it is clearly no ground for a motion in arrest of judgment, which must be founded on something on the face of the record.

Upon consideration of the whole case, we perceive nothing to justify a reversal of the judgment; and it must be affirmed.

The counsel for the prisoner asked, for a reargument as to so much of the opinion as decides that the objection to the juror Handgrove came too late, and to sustain this view he cited and relied upon the following authorities: Lewis v. The State, 9 S. & M. 115; Whart. Crim. Law, 860; Dawson v. The People, 13 Wend. 351; Williams v. The State, 32 Miss. R. 389; McGuire v. The State, 37 Id. 369; Cotton v. The State, 31 Id. 504; Nelms v. The State, 13 S. & M. 500; Sam v. The State, 31 Miss. R. 480; Sellers v. The People, 3 Scam. 416; Busch v. The State, 19 Ohio R. 198; Romaine v. The State, 7 Ind. R. 67; Keener v. The State, 18 Ga. R. 216; Jeffries v. Randall, 14 Mass. R. 206; Graham & Waterman on New Trials, 19-40; but a reargument was denied.  