
    The State, v. Allen Kirby.
    Confessions are admissible in evidence before the jury, though they be elicited by questions, whether put to the prisoner by a magistrate, oflicer, or private person; and the form of the question is immaterial to its admissibility, though it assume the prisoner’s guilt. 1 Greenlcaf Ev., sec. 239.
    The necessity of the inquiry into the effect upon his mind, of what may have been said in a preliminary conversation with a prisoner, who subsequently makes a confession of his guilt, is sufficient to carry the whole matter before the jury, although the preliminary conversation may have been held in the presence of “one in authority.”
    The jailer was present, and to some extent participated with two others, (private persons) in a conversation with one in prison for a minor offence, but suspected of murder. In this conversation (upon the effect of a con session, &c.,) the jailer neither offered, nor sanctioned any inducement?; to the prisoner’s hopes, or fears. An hour or more afterwards, (the jailer being absent,) the prisoner made a confession of the murder, to the two persons with whom he had held the preliminary conversation. The Court conceding the jailer to be such a person in authority as is contemplated by the rule of law, held that the confession was properly allowed to go to the jury.
    Tried before Mr. Justice Withers, at Laurens, Spring Term, 1847.
    Judge’s Report.
    The prisoner was tried for the murder of Nathaniel C. Vance, upon an indictment containing several counts, one charging him with the commission of the offence by his own hand, one as being present aiding and abetting one Aaron Lee, and one as having procured and incited a negro, Dave, the slave of the deceased, to commit the crime. The case is now to be carried a second time to the Court of Appeals, the prisoner having been convicted, at the last Fall Term, before my brother Evans. The fact of the murder of Vance, by some agency, under circumstances of the greatest brutality, was most clearly established, and they will be found detailed sufficiently in the report of the former trial, the particulars, as to the fact and manner of the murder, which were established on the recent trial, being substantially the same as those disclosed on the first.
    The case for the State was founded on the confession of the prisoner, which evidence was objected to, as it was on the first made to three persons, to wit: to John T. Kirby, and H. H. Thomson, Esq., on one day, and to George Nicholls on the next, the prisoner on both occasions being in prison at Spar-tanburg, upon a warrant charging him with the offence of harboring the negro Dave.
    Yance was found dead in his bed-room, on the morning of Friday, the 13th day of March, 1846. The confession of the prisoner to Kirby and Thomson, was made on the first Monday in April following, and to Nicholls, (who was sheriff,) on the next day, Tuesday.
    The force and effect of the confession of the prisoner depended materially upon the question, whether he derived his knowledge, or had an opportunity to do so, of the many particulars which will appear to have been disclosed by him when his confession is recited, or any and which of them, from Dave, or from any disclosures by Dave, communicated to him—for if he had no such source of information, the minute knowledge he displayed of roads, places, events, localities about Vance’s residence, the house and premises of Vance, and so forth, might be deemed irreconcilable with the belief of his innocence. It is proper, therefore, to incorporate in this report, and I shall accordingly do so, all that appeared, going to show whether be did or could have derived his knowledge of the said particulars, in whole or in part, from the source referred to. (On this point, see the testimony of William Willbanks, hereto subjoined.) Dave had been arrested and placed in jail at Spartanburg, about a week before the commitment of Allen Kirby, the prisoner. So far as the testimony before me went, Dave had not made a confession of his participation in the murder, (of which he had been convicted before the proper tribunal,) either simply or accompanied by detail, until after supper on the Sunday night preceding the next morning, (Monday,) when the prisoner was brought to the same jail. Dave’s statement was then made, (said Col. H. H. Thomson,) to himself and a Mr. Smith, who remained with him that night, and they kept it to themselves. On the next morning, (Monday,) Col. Thomson said he and Major John T. Kirby were at the jail, when the prisoner, Allen Kirby, was brought up by William Willbanks, the jailer; and it seems from the testimony of the same witness, that a brother of the deceased was also there, at that time, who had come to carry Dave off to Laurens. Col. Thomson introduced Mr. Yance to the prisoner, and having given the prisoner to understand, generally, that Dave had made a confession implicating him. said, “Mr. Yance wants to know the truth of the matter, and I am authorized by Mr. Yance to say, that if you are even guilty, yet, if you implicate others, he will do what he can to get the Governor to pardon you.” The prisoner said he was not guilty. It was then, (Col. Thomson said,) the first conversation occurred between the prisoner and Major John T. Kirby, who testified as follows:
    He said to the prisoner,.he was very sorry to see him there. The prisoner said, he was very sorry too, and he wms put there for nothing; the witness said, if that was so, he could easily come out, for if he could satisfy' people he was clear of the charge, he could get security. The witness asked the prisoner if he knew the negro had made a confession implicating him; the prisoner replied, he had heard so, and said, do you think the negro will tell lies to my facet And he did not think he would say to his face that he, (the prisoner,) was present at the murdering of Vance. A small aperture was then opened, so that Dave could show his face. The prisoner said, “Dave, why have you told these lies on me, when I have been a good friend to you?” Dave replied, “I have told no lies on you; I have told the truth, and you know it.” Prisoner then turned his face from Dave, and rested it on his hand, his elbow resting on the wall. The witness suggested that he should interrogate Dave, but the prisoner declined to ask him any more questions. Witness then said, “Kirby, if the negro has told lies, and you can satisfy me you were not there, I will become one of your sureties—can you get another?” He replied, he thought he could get Hanna, and could prove he was at the coaling ground when the murder was committed, by one or two of his brothers, but by nobody else that he then knew of. Witness talked a good deal about the negro’s confession, (that is, about the effect it would have,) and said, that whether he, (the prisoner,) was guilty or not, people would believe it, unless he could make better proof. Col. Thomson said, “Kirby, the dying confession of that negro will make every body believe you are guilty, unless you can make a better showing.” And the witness said, “if I were in your place, and guilty, I would come out and own it, and I’m not certain but that it would be better for you.” Prisoner said, “but I am not guilty.” Witness replied, “if you are not, I would be hung before I would come out and own a thing against myself or any other person who is not guilty.” Witness then mentioned the case of Ford, Hindman and Dill, who had been tried for stealing negroes, and he said the case of Sims might have been mentioned; he told the prisoner, that if he was concerned with others in killing Vance, his coming out might be the means of saving his life—that he, (the witness,) was not a lawyer, but that Col. Thomson was, and that he had better consult him as such. Thomson said to the prisoner, “if you confess your guilt, nobody but the Governor can save you from the halter,” and explained the danger of a confession. After some further conversation, which was not detailed by this witness, he bid the prisoner farewell. The prisoner was then taken to the dungeon by the deputy sheriff or the constable, and before the door was locked, he pushed it open, and calling to witness, said, “I reckon I had as well come out and confess all about it.” Witness said, “I think so too, but I won’t hear anything from you alone—you had better study over the matter—I shall ask a great many questions.” He said he was willing to make confessions before the witness and Thomson or the witness and Leitner. Col. Thomson said he thought it was well to take time and think about it—they would come back. In an hour or more afterwards, he and Thomson did return. He thinks the deputy sheriff was present at the conversation just detailed, hut that no officer or other person was present with him and Thomson when they relumed and heard the confession of the prisoner. Dave had been taken off in irons before this conversation ended, and no interview took place between him and the prisoner except that already recited, in the presence of witness and Thomson, and of Willbanks, during a part of all the time.
    It was at this point of the progress of the case that the confession was objected to as incompetent, on the grounds, 1st, that it was not sufficiently free from perverting influences, and 2d, that Willbanks, the jailor, and the person who had the prisoner in custody, was present at the preliminary conversation which has been detailed, though not present when the confession was made. The objection was argued, and the opinion of the Court of Appeals resorted to. I overruled the objection, and the confession was then admitted and detailed, first by John T. Kirby, corroborated by Col. Thomson, and secondly, by Nicholls.
    I held the confession admissible and proper for the consideration of the jury, as any other evidence, fortified or weakened by other circumstances, and affected in these respects according to the judgment of the jury, by any facts then or thereafter appearing, as to the excitement of the prisoner derived from hope or fear. And this view I thought, and still think, well supported by the opinion of the Court in this case, and the rules laid down by Grecnleaf on Evidence, in his chapter upon Confessions, vol, 1, and more particularly in paragraphs 223, 229, pp. 268—276.
    I did not see how the circumstances varied, in any essential particular, from those under which the confession was ruled to be admissible, for though the jailer was present at a portion or all of the preliminary conversation, reported by John T. Kirby, (and Willbanks’, the jailer’s, account, will be subjoined, having been offered in behalf of the defence at a subsequent stage of the case,) yet, if that fact did not appear on the former trial, and I do not know how that was, he was not present at the confession, occurring an hour or more afterwards; and I thought if he exercised any influence at all, negatively by his presence, or positively by any thing ho may have said or done, in leading the prisoner’s mind to the resolution to confess, all this was matter to go to the jury, and to be resolved by them in fixing the weight and effect of the subsequent confession.
    Col. H. H. Thomson.—As it regards the preliminary conversation held by this witness and John T. Kirby, with the prisoner, when the question was discussed whether he should confess or not, Cob Thomson said the cases of Ford and Dill, and of Sims, were mentioned to the prisoner, and he said to him, that though if he confessed he might be punished, yet, that if he was instrumental in convicting others, lie thought he might be pardoned. Major Kirby did observe that Lee. had been caught, (or that he would be.) and perhaps that Lee would get the start of him, and that he had better confess, or something substantially the same.
    William Willbanks—Who said that he arrested the prisoner on the sale-day in April, (for harboring Dave) and though he thought he said to him that Dave had made some confession, but he did not know whether it related to the harboring or the murder, he did not communicate any of it before prisoner’s conversation with Kirby and Thomson—that he was present in the first conversation between these gentlemen and the prisoner—that they went with him, (the witness,) when he carried, the prisoner to jail—they said something about what the negro had said—prisoner denied it, and affirmed the negro would not say so to him. Dave was then introduced, and this witness said, generally, that Dave told the story as to where they were to meet, the way they went, and where they parted. But he could not recount the particulars of Dave’s statement, though he said generally that he thought Dave’s story pretty much such as Thomson and Kirby had stated as prisoner’s confession. Whatever Dave did say, this witness stated the prisoner observed in reply, “Lord God, Dave, what a lie you’ve told—recollect you’ve got to die.” Dave said, “Yes, I know that—you are white men and I’m a negro, but I have told the truth.” Thomson or Kirby said, you have heard what Dave says, what have you to say? The case of Ford and Dill was mentioned—and the witness thought he himself 2'eferred to Sims’ case. Major Kirby said—if Lee confesses, you can’t— and said something about Lee telling of his harboring Dave.
    I have thus stated all that was developed in the testimony before me, which I can suppose to pertain to any oí the grounds of appeal, and all that can be necessary to show whether the confession ought to Lave been admitted as for the consideration of the jury, and being admitted, all that, afterwards appeared what influences led the prisoner to the resolution to confess, and affected, in any way, the substance of the confession, when made. My notes contain, very much at large, all the other testimony, and will be subject to reference, if that be deemed necessary.
    Every word on my notes was read over to the jury. I employed the utmost diligence in endeavoring to make the whole testimony intelligible to them, as well as all the questions started on either side. The whole of the opinion of the Appeal Court in this case was recited carefully to the jury— and they were particularly instructed that it was their duty to examine the confession made by the prisoner, as they would any other portion of the evidence, with a view to the question whether it was true or false'—and to that end to weigh all the circumstances, if any there were, which might seem to have exerted an undue influence over his mind, calculated to unhinge, sway, or pervert it—but they were admonished that if they had, on a candid and impartial examination of the whole case, a fixed belief that the prisoner was guilty of the charge, they should fearlessly do their duty, and leave the consequences to the law and to the Almighty.
    The verdict was “guilty.”
    The following are the grounds of appeal:
    1st. Because his Honor erred in permitting the confessions of the prisoner to be received in evidence, when they were forced from him by “the flattery of hope,” and “the torture of fear,” whilst in a state of great alarm and excitement.
    2d. Because the confessions were made through inducements held out to the prisoner, “in the presence of one in authority,” who gave no caution or warning as to the danger of those confessions.
    3d. Because the hopes and fears of the prisoner, immediately preceding the confession, were excited in part, and operated on “by the officer having him in custody.”
    Perry, for the motion.
    The confessions are not admissible. It is moral treason and repugnant to our ideas and the common law. The temptations of the human mind to confess are very great. The means applied by the civil law are very repugnant to the common law. They were not free and voluntary. Their being postponed for a time, does not better, but, makes it worse. He argued in his mind on the inducements offered to him in a dungeon. It must be voluntary. He must not be told that it may be belter or worse for him. It must not be under the influence ■'*. hope or fear-, Greenleaf Evidence, 263 and 6. The influence of these appliances must be done away before the evidence is good; it was not so here, he was alone in a dungeon. The jailer was present, (one in authority, the officer in whose custody I e veas.) This was not in evidence on the former trial. He was not only present, but offered the case of Sims. Even if made, in his presence, to a third person, they are void; 1 Greenleaf Ev., 268. The jailer was present when the inducements were offered, but not when the confession was made; an hour after, no difference; 1 Greenleaf Ev , 277; does not allow the Judge to leave the strength of tim confession to the j ury, but compels him to reject or admit it as a question of law; when life is involved, he cannot. The inducements here were calculated to elicit an untrue, confession; When 'he confession is allowed to go to the jury, it is when some collateral hope is extended tc the prisoner, but not when the hope of life is held out.
    Dawkins, Solicitor, contra.
    
    The fact of the presence of the officer of the law, makes the only difference between this case and the last, (at this Court last winter,) Greenleaf Ev., 266, sec. 221; this influence had been done away with before the confession of the prisoner.
   Withers j.

delivered the opinion of the Court.

When the prisoner’s case was before this Court in December last, every question was then considered and adjudged which arose on the second trial on ike circuit, and which is presented or urged in the present appeal, except that which alleges now the inadmissibility of the prisoner’s confession, because it was made through inducements held out to the prisoner in the presence of one in authority, who did not administer a caution and warning; and because the prisoner’s hopes and fears were excited in part and operated upon, immediately preceding the confession, by the officer having him in custody.

These complaints found themselves upon the fact appearing on the late trial, that William Willbanks, the jailer at Spar-tanburg, was present at a conversation preliminary to the confession, and occurring an hour or more before it was made, which was conducted with the prisoner by John T. Kirby and H. H. Thomson, and in which Willbanks to some extent participated. Though it had not fully appeared, at the time when the objection was made to the admissibility of the confession, to what extent the jailer did participate in the preliminary conversation referred to, (for that was subsequently developed by Willbanks, when called for the defence,) yet it is more proper to consider the question, as though the matter which is alleged to have affected and tainted the confession, had been known to the presiding Judge when the point was made. Nor will any stress be laid upon the fact, that upon the former trial and appeal, it did not appear that Willbanks was present, for that fact was not made the ground of exception. The only active participation which Willbanks states he had in the interview, was, that he thought he himself referred to Sims’ case. He specified no inducements held out to the prisoner by John T. Kirby and Thomson, in his (the witness’) presence, except that the case of Ford and Dill was mentioned; and that it was said to the prisoner, by Kirby and Thomson, “if Lee confesses, you can’t,” and something was said about Lee’s telling of the prisoner’s harboring Dave.

These suggestions all related to the question, debated by the prisoner and the two gentlemen mentioned, as to how a confession would be likely to operate in regard to the pardoning power; and it does not appear that any thing else was said, in the presence of the jailer, embracing matter touched by the grounds of appeal now under consideration.

Conceding that Willbanks was such “person in authority” as is contemplated by the rule of law urged upon us here, did he directly offer, in the single allusion made by him, or by his presence sanction, in the two observations made by another, such inducements to the prisoner’s hopes, or such alarm to the prisoner’s fear, as to exclude the confession made to two private persons an hour or more afterwards?

We are clear that tills question, pregnant though it be of momentous consequences to the prisoner, must be answered in the negative. Let it be remembered, that the question is, shall the evidence bo excluded from the jury? It is a misapprehension of the rule of law, which seeks to exclude confessions made by a prisoner to one in authority, or having power over the prosecution, to construe it to be irrespective of the reason upon which all rules upon this whole subject is based. The question in all cases arises, is the confession free and voluntary? Did any one ever make a confession, however voluntary, by which he did not contemplate some advantage to himself? The object of the rule, is, to exclude any admission that may have been procured by the prisoner’s being led to suppose that it would be better for him to confess himself guilty of an offence of which he is innocent; whether the inducement held out to him be calculated to make his confession untrue.

Numerous are the cases in which confessions made to persons in authority have been received; and various of them may be found condensed by Joy on Confessions, sections 1 and 3. This opinion will not be encumbered b}^ a minute specification of them. But it will be seen that the nature and effect of the inducement was the subject of consideration in those as in other cases. Though the same words uttered in the presence of one who has power over his prisoner, either in controlling the prosecution or in securing his person, may add to that force which they would carry when proceeding from a private person in swerving the accused from a proper equanimity, yet we cannot perceive how the suggestions specified in this case could, when proceeding from any body having no control over the pardoning power, and from those affecting to have no control, produce any undue effect upon the hope of the prisoner, or shake his mind from its propriety through any other impulse. But a very material consideration is yet to be added.

What effect did any thing, said in his preliminary conversation, have upon his mind, when the confession was made at a subsequent time? This inquiry was enough to carry the whole matter to the jury; and being before that tribuna!, the whole facts of the case were open as bearing upon such inquiry; the influence of any suggestions t f benefit or disadvantage upon the prisoner’s mind was to be determined by the jury when they had weighed them in one scale, and placed in the other the several admonitions by John T. Kirby and Thomson, which were candid and cautionary, and may be found at large in the testimony reported; they were to consider that the prisoner was not in fact at the time he confessed under arrest for the murder, but for harboring the negro Dave, who was charged as an accomplice; in short, the inquiry, how far the prisoner may have been led by Ids own speculations, or those of others as to contingent events, opened the whole mass of corroborative facts adduced on the part of the State; and these, it was freely confessed here on the part of the prisoner, left him no hope.

A confession is admissible, (says Mr. Greenleaf in the 1st volume of his Evidence, sec. 239.) though it is elicited by questions, whether put to the prisoner by a magistrate, officer, or private person; and the form of the question is immaterial to its admissibility, though it assumes the prisoner’s guilt. In all these cases the evidence may be laid before the jury, however little it may weigh under the circumstances, and however reprehensible may be the mode in which in some of them, it may be obtained. According to recent decisions by some of the English Judges, a knowledge by the prisoner that the government itself has offered a pardon and a reward, will not exclude his confession, unless it appears that it was made under the influence of a hope of pardon held out by authorized parties; and though, where that is urged, the Judge may exclude the confession when such influence is manifest, it is unquestionably for the jury when the fact is doubtful; (see Regina v. Boswell, et al., 41 Eng. C. L. Rep., 584; same v. Dingby, et al, 47 ib., 637.

It does not appear, therefore, that the Circuit Court violated the rule in question, whether we look to the reason of it in general, the interpretation of it elsewhere, or in the former well considered judgment pronounced in this cause.

This Court consequently is constrained to order that the motion be dismissed; and it is dismissed accordingly.  