
    Commonwealth v. Dillon. 
    
    
      Confession of prisoner.
    
    A boy, about twelve years old, indicted for arson, in burning some stables containing hay, &e., had made a formal, and, to all appearance, voluntary confession to the mayor of the city of Philadelphia, which was repeated at subsequent periods: previously, however, he had been visited by several persons, who represented to him the enormity of his crime, and that a confession would excite public compassion, and probably be the means of obtaining his pardon, adding that they would be his friends, while a contrary course, in case of his conviction, would leave him without hope; the inspectors of the prison, too, took him into the dungeon, and said, that he would be confined in it, dark and cold, without food, unless he made 'a full disclosure, which, if he did make, he should be well accommodated, and might expect pity and favor: Held, that this confession was admissible in evidence, and that the point for consideration was, whether the prisoner had falsely declared himself guilty of a capital offence.
    
    The prisoner (a boy about twelve years old) was indicted for arson, in burning several stables, containing hay, &c. He was examined before the mayor of the city of Philadelphia, on the 20th of December 1791, and then confessed the commission of the offences, with which he was charged. But as his own confession was the principal evidence (indeed, there was no other positive evidence) against him, his counsel insisted, that it was obtained under such duress, accompanied with threats and promises, as destroyed its legal credit and validity. The evidence on that point was, substantially, as follows:
    
      On the 18th of December, the prisoner was committed to the jail of Philadelphia, and the next day was taken before the mayor; but at that time, he made no confession. On the 18th and 19th of December, he was visited and interrogated by several respectable citizens, who represented to him the enormity of the crime ; urged a free, open and candid confession, which would so excite public compassion as probably, to be the means of obtaining a pardon; while a contrary course of conduct would leave him, in case of a conviction, without hope : and they added, that they would themselves stand his friends, if he would confess. The inspectors of the prison endeavored, likewise, to obtain from him a discovery of his offences and of his accomplices. They carried him into the dungeon ; they displayed it in all its gloom and horror; they said, that he would be confined in it, dark, cold and hungry, unless he made a full disclosure ; but if he did make a disclosure, he should be well accommodated with room, fire and victuals, and might expect pity and favor. The prisoner continued to deny his guilt for some time ; and when his master visited him, he complained of the want of clothes, fire and nourishment. *At length, r*-,-./, however, on the 19th of December, he made successive acknowledgments of the facts contained in his confession, which was formally, and, to all appearance, voluntarily, made before the mayor, on the succeeding morning ; and which was repeated, with additional circumstances, at subsequent periods.
    In the prisoner’s defence the following authorities were cited,
    principally to guard the jury against the danger of mere presumptive evidence, and an extorted confession of guilt, through force, hope or fear, particularly, in the case of an infant; 4 Bl. Com. 357; Fost. 243; 2 Trials per Pais 603; 2 Hale H. P. C. 225; 2 Bl. Com. 326; Leach C. L. 248, 319; 3 Com. Dig. 511; Staundf. 144; 2 Hale H. P. C. 284-5; 3 Bac. Abr. 131; 3 Inst. 232; 2 Hawk. 604; 8 Mod.; Fost. 11, 244.
    For the Commonwealth.
    
    — The confession was delivered before the mayor, and afterwards repeated and enlarged, without the least appearance of constraint or terror. No public officer has improperly attempted to excite fear or hope, as the medium of extorting a discovery ; and all that was said or done in that respect, proceeded from the avowed friends of the prisoner, and the known promoters of humanity. Besides, the confession itself bears intrinsic marks of its sincerity and truth ; and neither the wildness of the boy’s motive, for committing the crimes, nor his youth, can afford a satisfactory answer to the charge. (Fost. 70.) And, after all, to destroy the legal effect of the confession as evidence, it must be proved, 1st, that previous improper means were employed ; and 2d, that the confession was the immediate consequence of those improper means.
    
      
       The trial was held at a court of oyer and terminer, in Philadelphia, on the 31si of January 1792, before McKean, Chief Justice, and Shippen and Bbadford, Justices,
    
    
      
       But see, on this point, 2 Starkie’s Ev. 27.
    
   By the Court.

— The fact of the arson is established; and it only remains to decide, whether it was committed by the prisoner? The proof against him depends upon his own confession, slightly corroborated by the testimony of two witnesses. The confession was freely and voluntarily made, was fairly and openly received, before the mayor ; and therefore, it was regularly read in evidence. But still, it has been urged, that it was thus apparently well made before the mayor, in consequence of improper measures previously pursued with the boy. The interference of the inspectors of the prison was certainly irregular; though the public anxiety, in which they participated, upon this extraordinary occasion, may be admitted as an excuse. The manner in which he was urged, though not threatened, by the citizens who visited him, may likewise be objectionable. But is it reasonable to infer, that all the prisoner’s confessions were falsely made under the influence of those occurrences? Consider the nature of the offence. It cannot be openly perpetrated ; for it would be instantly prevented ; and if it is secretly perpetrated, how, generally speaking, can the offender be de¡u-.gl teet-ed, *but-by his own declarations? If such declarations are voluntarily made, all the world will agree, that they furnish the strongest evidence of imputed guilt. The hope of mercy actuates almost every criminal who confesses his crime; and merely that he cherishes the hope, is no reason, in morality, nor in law, to disbelieve him. The true point for consideration, therefore, is, whether the prisoner has falsely declared himself guilty of a capital offence ? If there is ground even to suspect, that he has done so, God forbid, that his life should be the sacrifice ! While, therefore, on the one hand, it is remarked, that all the stables set on fire, were in the neighborhood of his master’s house ; that he has, in part, communicated the facts to another boy ; that his conduct had excited the attention and suspicion of a girl, Avho knew him ; and that he expressed no wish to retract the statement, Avhich he has given : the jury will, on the other hand, remember, that if they entertain a doubt upon the subject, it is their duty to pronounce an acquittal. Though it is their proAdnce to administer justice, and not to bestow mercy ; and though it is better not to err at all; yet, in a doubtful case, an error on the side of mercy is safer, is more venial, than error on the side of rigid justice.

For the Commonwealth, Ingersoll, attorney-general. For the prisoner, Sergeant and Todd.

Verdict, not guilty, 
      
      
         The humanity of the jury being gratified by an acquittal of the prisoner, from the capital charge, he was indicted and convicted, on the same facts, for a misdemeanor. By the reform of our penal code, arson is no longer a capital crime.
     