
    THE STATE v. JAMES MITCHELL.
    A prisoner in jail said to a fellow prisoner, “If you will not tell on me I will tell you something;” The other replied that he would not tell, but if he did it would make no difference, for one criminal could not testify against another; The former added, “I want to know what to do;” The other replied that if he knew the circumstances he could tell him what to do: Held, that confessions of a murder, made thereupon by the former to the latter were admissible in evidence.
    Murder, tried before Warren J., at a Court of Oyer and Terminer for Lenoir, held on the first Monday in August 1867.
    The prisoner had been arrested by the military authorities of the United States, for the murder of one James B. Allen, without being informed of the charge against him. Upon the trial the State offered evidence of his confessions made in prison to .one Cook, who was at that time also a prisoner, for a misdemeanor, and had previously been his acquaintance.
    They were made under the following circumstances. The prisoner asked the witness, What in the hell do you suppose I was arrested for? Witness replied that he did not know. After some other conversation, the prisoner said, If you will not tell on me I will tell you something. Witness said he would not tell, but if he did, it would make no difference, for one criminal could not testify against another. The prisoner then said, I want to know what to do; and witness replied that if ke knew the circumstances he could tell him what to do.
    Objection was made to the reception of the confessions thereupon made by the prisoner, on the ground that they were improperly and illegally obtained. They were however received by the court.
    The prisoner was convicted, and a rule having been obtained for a new trial it was discharged, and there was judgment and appeal.
    No counsel for the prisoner.
    
      Atto Gen., for the State.
   Battle J.

The only question presented by the bill of exceptions is, whether the confession of the prisoner was admissible.

The principle upon which the competency of the confessions of a prisoner depends was well stated by Judge Henderson, in the case of the State v. Roberts, 1 Dev., 261. He said, “confessions are either voluntary or involuntary. They are called voluntary when made neither under the influence of hope or fear, but are attributable to that love of truth which predominates in the breast of every man not operated upon by other motives more powerful with him, and which, it is said, in the perfectly good man cannot be countervailed. These confessions are the highest evidences of truth, even in cases affecting life. But it is said, and said with truth, that confessions induced by hope or extorted by fear are, of all kinds of evidence, the least to be relied on, and are therefore entirely to be rejected.” , This principle thus clearly enunciated by a very able judge, will be found to havé pervaded every case upon the subject which has been decided by this court. See Battle’s Digest, Title Evidence, sec. xxvi, p. 505.

The confession proposed to be proved in the present case must be regarded as coming under the head of voluntary confessions. The prisoner himself commenced the conversation which led to his confession. When the prisoner said to the witness, “I want to know what to do,” he must have been aware that the witness could not tell him without knowing the circumstances of his case. When the latter told him so, therefore, he only told him that which he already knew; and what he, thereupon went on to state to the witness was not induced by any hope of advantage held out to him by the witness, but by the suggestion of his own mind to get the witness’ advice as to the course he ought to pursue. So far from being under any influence to make a false statement, he had the strongest motive to tell the truth, so that the advice of his acquaintance might be of service to him. In this view of the question, the mistake of the witness as to the law about one prisoner testifying against another, cannot make any difference. The prisoner could not thereby have, been in the least induced to make a false statement of the facts and circumstances of his case. All that can be said is, that he found himself placed in a difficult and dangerous position, and wanted the advice of a friend as to the best course to be pursued for his relief. To obtain that advice he voluntarily unbosomed himself to a person who he thought might be trusted, but who afterwards proved treacherous and disclosed his secret. We do not know of any such ground for excluding confessions, and think the Judge was right in admitting them.

It must be certified that we find no error in the record.

Per Curiam. No error.  