
    Porter v. The State.
    
      Indictment for Murder.
    
    1. Admissibility of confessions. — Although no unbending, universal rule can be laid down, by wlnoh to determine whether subsequent confessions in a criminal case are admissible, when the former confessions were obtained by improper influences; yet, in each case, the inquiry must be, whether, considering the degree of intelligence of the prisoner, and all the attendant circumstances, it is affirmatively shown that the effect, of the primary improper inducement was so entirely obliterated from his mind that the subsequent confession could not have been in the slightest degree influenced by it; and if there be any doubt ou this queston, it must be resolved in favor of the prisoner, and the confession must be excluded.
    2. ¿fame. — The first confessions of the prisoner in this case, who was a freedman, were made during his preliminary examination before a magistrate on a charge of murder, and were obtained from him, after a great deal of hesitation on his part, by the strongest assurances on the part of his attorney, confirmed by the prosecuting attorney, the brother of the deceased, and the magistrate, that he should not be prosecuted, but should be used as a witness against the other defendants; and these confessions were repeated by him, on the next day, to the constable who was carrying him to jail, and who had given him three drinks of liquor. On the first and second days after his commitment to jail, the leading counsel for the prosecution, accompanied by a brother-in-law of the deceased and another friend, visited him in jail, and said to him, no other persons being present: “ I have heard what yon confessed at XJ. You did not tell the whole truth about it. I want you to be particular how you talk, as what you say may send you to the penitentiary or gallows. I have control of the case now, and all that was done at XJ. is done away, I withdraw all hopes of reward, and fears of punishment. You have not told all the truth about it. I tell you now, again, that you must not hope or expect to receive any benefit, favor, or mercy, or think the case will go lighter with you for what you said at XJ., or what you may say now; and it they promised to let you off, or to make the punishment lighter, or to let you be a State witness, I tell you, it cannot be. You cannot be a State witness, and you must not expect any mercy, or to be a State witness. I want you to understand, that all promises made at XJ. are taken back, and what you said there will do you no good, and cannot be used for or against you. If you wish to tell anything, you must do it of your own free will; and remember, it may hang you, or send you to the penitentiary for life. Now, you can tell the truth about it, if you wish. Do you understand what I mean?” The prisoner replied, “that he did understand; that he did not expect any mercy; that he expected to be hung; that he told it because his conscience hurt him, and he could not keep it any longer;” and he then made confessions substantially the same as the former. Held, that these last confessions ought not to have been received in evidence against him.
    
      3. Charge as to or edibility of witness impeached or contradicted. — A charge asked in. a criminal case, in these words: ‘ ‘ The testimony of a witness for the prosecution, who is shown to be unworthy of credit, is not sufficient to justify a conviction, without corroborating evidence; and such corroborating evidence, to avail anything, must be a fact tending to show the guilt of the defendant,” — asserts a correct legal-proposition.
    
    4. Effect of confesssions, as against co-defendants. — Where several defendants are jointly indicted and tried, the confessions of one are not admissible against another, for any purpose; consequently, where some of them have made confessions, and others have not, it is error to instruct the jury that they “may compare the confessions of each with the other.”
    5. Alibi; unsuccessful attempt to prove. —An unsuccessful attempt to prove an alibi does not “create a strong presumption against the prisoner,” though, like an unsuccessful attempt to prove any other material fact in defense, it is a circumstance to be weighed against him: and a fraudulent attempt to prove a simulated alibi, sustained by perjury, will, if detected, be a circumstance of great weight against him.
    EeoM tbe Circuit Court of Perry.
    Tried before tbe Hon. Geo. H Ceaig.
    Tbe defendant in this case, Lucius Porter, a freedman, was indicted and tried, jointly with three other freedmen, Albert Young, Silas Smith, and Robert Jones, for tbe murder of Isaac I). Moore; was convicted of murder in tbe first degree, and sentenced to death, while there was a mistrial as to tbe other defendants. A bill of exceptions was reserved as to numerous rulings of tbe court on the trial, containing over sixty pages of record paper; but tbe opinion of this court renders it,unnecessary to copy this at length, or even to state the substance of it. The deceased was shot and killed, on the night of the 4th November, 1876, on bis return from Uniontown, to his residence, about six miles distant in tbe country, while his servant and driver, who had got out of the buggy, was attempting to open the outside gate of his plantation ; and the proof showed that the shooting was done by some person or persons who were lying in ambush for that purpose. The principal question in the case, as here presented, relates to the admissibility of certain confessions made by tlie defendant Porter; and tbe opinion states all the material facts connected with these confessions. There was also some proof of confessions made by tbe defendant Young, which were admitted by the court below without objection, and which require no special notice. The defendants introduced twenty-four witnesses, “all of whom were colored persons, and were related to the defendants, or lived with or near them, and who testified to facts which, if 'true, would establish an alibi for each of said defendants; and whose statements did not agree, but differed iu a great many particulars.”
    
      Tbe court ebarged tbe jury, in writing, as follows:
    “ Tbe defendants are ebarged with tbe murder of Isaac D. Moore. In order to convict, it is necessary for tbe State to show to your satisfaction, beyond a reasonable doubt, that tbe defendants, witb malice aforetbougbt, took tbe life of said Isaac D. Moore, by shooting him witb a gun; and that tbis was done in tbe county of Perry, and before tbe finding of tbis indictment. It is admitted tbat said Moore was killed, in said county, before tbe finding of tbe indictment, and tbat tbe person or persons wbo killed bim would be guilty of murder in tbe first degree. Therefore, tbe only question for you to settle is, whether tbe defendants are tbe persons wbo committed tbe deed. If you are satisfied fro.a the evidence, tbat one of them murdered said Moore by shooting bim witb a gun, then, under tbe admission above named, be would be guilty of murder in tbe first degree; but, before you can convict tbe others, you must be satisfied from the evidence, beyond a reasonable doubt, tbat they bad, before tbe killing, entered into a conspiracy witb the person wbo committed the deed, to take tbe life of said Moore. If tbe evidence satisfies you tbat one of them committed tbe deed, and if you are further satisfied tbat, before and at tbe time of tbe killing, there was a community of design — a purpose framed — an understanding bad — between bim and tbe other defendants, to take tbe life of said Moore, then they would be just as guilty as be wbo fired tbe fatal shot. If several persons conspire to do an unlawful act — an act bad in itself — -all the members of such illegal combination are responsible for tbe acts of each, done in tbe prosecution of their common purpose. If two or more persons conspire to rob another, and, in tbe prosecution of this common design, one makes tbe attempt, and kills tbe person in carrying it out, then all of them would be guilty of murder, although only one was present, and did tbe killing. A conspiracy is seldom proved expressly. The evidence in proof of it is almost always circumstantial. If it be proved tbat tbe persons wbo are supposed to have conspired were intimate witb each other, and held private consultations, and pursued by their acts tbe same object, one of them performing one part, and another performing another part, so as to complete it, and witb a view to tbe attainment of tbat same object, — then tbe jury would be justified in tbe conclusion, tbat they were engaged in a conspiracy to effect tbat object. A person’s acts may be considered by tbe jury, in order to ascertain what Ms intentions are.
    “ But tbe defendants all say, tbat you should not convict them, because they say they have shown tbat they could not have committed the offense, because they say they were not at or near tbe place of the killing, but were elsewhere. If they have satisfactorily shown this by the evidence which has been adduced before you, then, of course, you cannot convict them; for, when an alibi is satisfactorily established, it is as good as any other defense. „ But the jury should look to the evidence establishing the alibi with great caution,; not with suspicion, but with care and caution; and if a defendant attempts to prove an alibi, and fails in it, lhent such failure is a strong presumption against him.
    
    
      “ The defendants further say, that the State has not shown any motive or incentive on their part to commit the crime. Now, gentlemen, look to all the evidence, and ascertain if there was existing, between the defendants and the deceased, such a feeling as could move them to the commission of tho offense. Had there been difficulties between them prior to the killing? and, if so, does the evidence show that the bad feeling engendered by such difficulties existed at the time of the killing? If so, was it such as would move them to the commission of the deed? If not, does the evidence show that a desire to obtain money at the time was such as would induce, and, if so, do you believe that one or both did induce the deed, or would, under all the circumstances, prompt the defendants to commit the deed? If not, was there anything else that would have moved them to commit this crime ? and if so, what ? And if there was no motive for the commission of the crime, did they commit it? and if so, why ? It is your duty to look to all the evidence, to all the circumstances surrounding the parties, and what they said and did, in order to ascertain the incentive to the commission of the deed by these defendants; and if it does not satisfy you of their guilt, beyond a reasonable doubt, you should acquit; but, if the evidence shows their guilt beyond a reasonable doubt, it is your duty to return a verdict of guilty.
    “ The confessions of the defendant should be received with great caution, and examined and weighed by the jury with great care. It is for the jury to say, whether the person making the confession speaks the truth, or not. The court has permitted the confessions in this case to go before you, and you are to pass upon their sufficiency and credibility. You cannot look to the confessions of one defendant, as against the others; and you should be careful to remember this, in considering the confessions. But it is your duty to look to all the other testimony in the case, in order to ascertain whether or not these confessions are true; and you may compare the confessions of each with the other, and of all with the evidence in the case, and ascertain if the facts and cir-cumstanees attending tbe killing, or facts to tbe discovery of wbicb tbe confessions led, or facts having a just tendency to lead to tbe conclusion tbat tbe defendants committed tbe offense, corroborate sucb confessions.
    “ Tbe State claims tbat tbe guilt of tbe defendants is clearly shown, not only by positive proof, but by tbe circumstantial evidence before you. By circumstantial, or presumptive proof, is meant that measure and degree of circumstantial evidence wbicb is sufficient to produce in tbe minds of tbe jury conviction beyond a reasonable doubt of tbe truth of tbe fact in question. Gircumstcmitial evidence is capable of producing the highest degree of moral certainty in the application. It is, however, a species of evidence wbicb requires tbe utmost degree of caution and vigilance in its application; and in no case, and upon no principle, can tbe policy of preventing crime, and protecting society, warrant any inference, wbicb is not founded on the fullest and most certain conviction of tbe truth of tbe fact, independently of tbe nature of tbe offense, and of all extrinsic considerations whatsoever. You cannot convict, unless you are satisfied by tbe evidence, to a moral certainty, tbat tbe defendants are guilty; and if there is any other reasonable hypothesis, save tbat of tbe defendants’ guilt, then you should acquit. But, if, after a careful consideration of all tbe evidence, you have no reasonable doubt of their guilt, then you will have arrived at tbat moral certainty wbicb would warrant a conviction. Tbe fact tbat tbe evidence leading to sucb a conclusion is circumstantial, should not prevent a verdict in conformity therewith. It is your duty to weigh carefully all tbe testimony in tbe case; and if you can make it consist with tbe truth, to do so. You cannot set aside tbe testimony of any witness capriciously ; tbat is, you cannot disbelieve a witness, or set aside bis testimony, without .a good reason for so doing. But, if, from tbe appearance of a witness on tbe stand, or bis manner of testifying, you think him unworthy of belief, you may set aside bis testimony entirely, and not consider it in making up your verdict. In so doing, however, you should be careful, and be sure you have good reason for so doing.”
    The defendants severally excepted to this entire charge, and to each portion of it, and particularly to tbe parts wbicb are italicized; and they then requested tbe following charges, wbicb were in writing:
    “1. Tbe cfrcumstances attending tbe killing of tbe deceased must be connected with Silas Smith by at least one creditable witness, before tbe jury can convict him.
    2. Tbe testimony of a witness for tbe prosecution, who is shown to be unworthy of credit, is not sufficient to justify a conviction, without corroborating evidence; and such corroborating evidence, to avail anything, must be of a fact tending to show the guilt of one or all of the defendants.
    ■“ 3. If the jury believe from the testimony, that one of the tracks found near the place of the killing had a deeper indentation in the ground on one side of the heel, and the State has not shown that a shoe or boot was worn by one of the defendants, and has not explained to the court and jury why such proof has not been made; then the presumption is, that such proof could not be made, and that said indentation was not made by a boot or shoe worn by any of the defendants, and that said track was not the track of either of them.
    “4. If the jury believe that Phil Henry” [a witness for the prosecution, who testified that, in the morning of the day on which the deceased was killed, he overheard a conversation between the several defendants, in which they declared their intention to meet the deceased that night and kill him] “is unworthy of belief, and his statements are not corroborated by any evidence tending to show the guilt of Silas Smith and Bob Jones, or either of them, they must acquit them.
    
      “5. The jury cannot consider the confessions of Porter and Albert Young, to corroborate the testimony of Phil Henry against Silas Smith and Bob Jones.
    “6. The jury must pass upon the guilt or innocence of each one of the defendants; and in considering the case of Silas Smith and Bob Jones, they must totally exclude from their minds the confessions said to have been made by the other defendants; and if they are not satisfied beyond all reasonable doubt, and to a moral certainty, outside of such confessions, that the said Silas Smith and Bob Jones are guilty, they must acquit them.
    “ 7. In permitting confessions to go to the jury, the court determines that they were voluntary, but not that they were deliberate, and not that they are to be believed by the jury.
    “ 8. When the prosecuting attorney read to the jury an extract from Burrill’s Law of Circumstantial Evidence, he was reading what the author thought on the question of an alibi; but what the counsel read from that book, is not the lav/ of this case, and does not control or govern the jury, who must take the law from the court, and not horn any of the attorneys in the case.”
    The court refused each of these charges, and the defendants severally excepted to their refusal.
    W. B. Modawell, for the defendant.
    
      Jno. W. A. Saotord, Attorney-General, and Chas. G. Bbowne, for tbe State.
    
      
       This decision affirms the principle stated in the case of Cohen v. The State, and overrules the case of William Uay v. The State on the same point, as shown by the reports of those cases in 50 Ala. 104-112.
    
   STONE, J, —

“A free and- voluntary confession of guilt, made by a prisoner, whether in the course of conversation with private individuals, or under examination before a magistrate, is admissible in evidence, as the highest and most satisfactory proof; because it is fairly presumed, that no man would make such a confession against himself, if the facts confessed were not true. And the highest authorities have now established, that a confession, if duly made, and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence aliunde. But a confession, in order to be admissible, must be free and voluntary : that is, must not be extracted by any sort, of threats, or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” 2 Russ. Cr. 824. What we have here said is quotation. It is not our intention to overturn or impair the principle declared in Matthews v. The State, at the present term,in which we held that a conviction cannot be had on confessions alone, without some other proof of the corpus delicti. In that case, as in this, the crime charged was a felony.

“When a confession has been obtained, or inducement held out, under circumstances which would render a confession inadmissible, a confession subsequently made is not admissible in evidence, unless, from proper warning of the consequences, or from other circumstances, there is reason to presume that the hope or fear, which influenced the first confession, is dispelled. And in the absence of any such circumstances, the influence of the motives proved to have been offered will be presumed to continue, and to have produced the confession, unless the contrary is shown by clear evidence ; and the confession will be rejected. 2 Leading Cr. Cases, 218.

In Brister v. The State, speaking on the subject of confessions, this court rightly said: “Where promises or threats have been used, yet, if it appear to the satisfaction of the judge that their influence toas totally done aioay before the confession was made, the evidence will be received.” 26 Ala. 107, 129; See, also, Aiken v State , 35 Ala. 399.

In 1 Greenl. Ev. § 221, it is said : “ The influence of the motives proved to have been offered will be presumed to continue, and to have produced the confession, unless the contrary is shown by clear evidence, and the confession will therefore be rejected.”

In 2 Bussell on Crimes, 833, quoting from adjudged cases, is the following language: “ A confession bad been improperly obtained, by giving the prisoner two glasses of gin; the officer to whom it had been made, read it over to the prisoner, before the committing magistrate, who told the prisoner, the offense imputed to him affected his life, and a confession might do him harm. The prisoner said, that what had been read to him was the truth, and signed the paper. Best, J., considered the second confession, as well as the first, inadmissible; and said, that had the magistrate known the officer had given the prisoner gin, he would, no doubt, have told the prisoner, that what he had already said could not be given in evidence against him, and that it was for him to consider whether he would make a second confession. If the prisoner had been told this, what he afterwards said would be evidence against him; but, for want of this information, he might think that he could not make his case worse than he had already made it, and under this impression might sign the confession before the magistrate. Where hopes of favor had been given, and the prisoner refused, before the magistrate, to confess, except upon conditions, Mr. J. Bulleb observed, that there must be very strong evidence of an explicit warning by the magistrate, not to rely on any expected favor on that account, and it ought most clearly to appear that the prisoner thoroughly understood such warning, before his subsequent confession could be given in evidence.” See, also, 2 Lead. Cr. Cases, 213.

In People v. Robertson (1 Wheeler’s Cr. Cases, 67), the magistrate told the prisoner’s wife, that if what she had told him was true, her husband had better confess. He held out no inducement to fear or favor, other than was implied in these words. The prisoner was then in custody, but not in the room in which the magistrate used these words. The wife then asked the witness, “Can we put confidence in him?” Witness said, “You may eonfide in the magistrate.” On the next morning, the same magistrate took the examination of the prisoner, and told him, that nothing he had said before should induce him to expect any favor; but that he (the magistrate) had all the facts, and it would be better to tell them truly, for, if he did not, he would detect him in a falsehood. He then examined him, in the usual manner. The court held, that the confession was, under these circumstances, inadmissible — -that this was holding out an expectation of favor, inconsistent with the free and voluntary spirit in which a confession should be made. See the subject of confessions fully treated in 2 Leading Criminal Cases, 167 to 232.

In Bonner v. The State, at the present term, we, to some extent, considered the question of confessions, and, among other things, said, a reasonable doubt entertained by the court, as to whether a confession was voluntarily made, or not, ought to be resolved in favor of the accused.

In the present case, there .is no material conflict in the evidence which proves the circumstances under which the confessions were made. Hence, this record presents no question of the weighing of evidence. The facts appear to be clearly made out, and are substantially as follows: The prisoner, Porter, was undergoing preliminary trial before a magistrate, on a charge of murdering Isaac D. Moore. Mr. Moore had been the victim of a most atrocious murder, committed, probably, for purposes of robbery, in the night time, and by one or more persons who were lying in wait for the purpose. The State and the prisoner were each represented by counsel. The gentleman who acted as the prisoner’s counsel testified as follows : “ Believing, from the evidence in the ease, and the manner of the defendant, Porter, that he was guilty, and feeling that the only way to save his life was to get him as a State witness, I proposed to Mr. Stewart” [counsel for prosecution], “to make him a State witness, if he would confess and tell the truth. Mr. Stewart at first declined, wishing to confer with Mr. Brown and Mr. W. D. Moore, the brother of deceased. I told him, that I felt convinced that Porter knew all about it; and Mr. Stewart, after consulting with Mr. Moore, at last agreed to the proposition. Porter was sober and collected all the time; and I took Porter out of the court room, and into a private room, and stated to him, that if he would confess, and tell me all about the matter, and all the truth about the murder of Isaac D. Moore, I assured him that he should not be hurt; that he should not be tried for the offense — -that he should be discharged, and used as a witness against the other defendants. I told him, I was authorized by Mr. Stewart, and the other parties engaged in prosecuting him, to say this to him, and to make this bargain and agreement; I can have it strictly carried out, and I will see that it is strictly carried out.” (This occurred at Uniontown.) “The prisoner refused to tell anything about the murder, saying that he did not know anything about it. I then told him, he had just as well tell it ;• for they had sufficient proof against them all to hang them, and thajj the only way he could escape was to confess and tell the truth about it, and become a State’s witness in the cause. The prisoner then asked me, if I could save him, if he would confess. I replied, that I could and would save him from punishment, and that I would suffer my right arm to be cut off before he should be punished, if he would confess and tell me all about it. The prisoner then said, ‘ Let Mr. Moore,’ the brother of the deceased, ‘ come and tell me that I will not be punished, if I tell it.’ I brought in Mr. Moore, Mr. Nicholson, the magistrate, and Mr. Stewart, the prosecuting attorney; and they all assured the prisoner, that he should not be punished, if he would confess and tell all about it. And I then gave him every inducement to tell, and every assurance that he should not be punished, but used as a State witness, if he would tell the facts about the homicide.” After some hesitation, the prisoner said, There is no chance for me, any how; I will be hung, whether I tell or not, and I might as w'ell tell all about it.” He then confessed before those persons. It was then and there agreed, that he should be made a State witness; and he went before the magistrate, in the court-room, and repeated the statement and confession. The next day, while being carried to prison by the constable, and after receiving three drinks of liquor from him, he repeated his confession to him.

On the first and second days, each, after the prisoner was committed to prison at Marion, the leading counsel for the prosecution visited the prisoner in jail, there being in company with said counsel, on each occasion, two other persons, friends of the prosecution; one of them, at least, being present at the request of said counsel. At the first of said visits, the brother of the deceased was present; and the brother-in-law of deceased was one of the number who then visited the prisoner. Said leading counsel said to the prisoner, in substance, as follows: “ I have heard what you confessed at Uniontown. Yon did not tell the whole truth about it. I want you to be particular how you talk, as what you say may send you to the penitentiary or gallows. I have control of the ease now; and all that was done at Uniontown is done away. I withdraw all hopes of reward, and fears of punishment. You have not told all the truth about it. I tell you now, again, Porter, that you must not hope or expect to receive any benefit, favor, or mercy, or think the case will go lighter with you, for what you said at Uniontown, or what you said at any time before, or what you may say now; and if they promised to let you off, or make the punishment lighter, or to let you be a State witness, I tell you it cannot be. You cannot be a State witness; and you must not expect any mercy, or to be a State witness. I want ,‘jon to understand, that all promises made at Uniontown are taken back, and what you said at Uniontown will do you no good, and cannot be used for or against you. If you wish to tell any thing, you must do it of your own free will; and remember, it may hang yo.u, or send you to the penitentiary for life. Now, you can tell the truth about it, if you wish. Do you understand, what I mean?” The prisoner replied, “that he did; that he did not expect any mercy; that he expected to be hung; that he told it, because his conscience hurt him, and he could not keep it any longer.” The prisoner thereupon made confession of his guilt; and the main question in this cause is, were those confessions, last made, rightly admitted in evidence against him?

We do not think any unbending, universal rule can be laid down, for the government of all cases, in which it is claimed that confessions are legalized by the withdrawal of promises or threats previously made. The inquiry, in all such cases, presents itself, has all influence been withdrawn and obliberafed from the mind of the prisoner, so as to show, affirmatively, that the confession is clearly voluntary, and not influenced in the slightest degree by the threats, promises, or other inducements, previously made or held out, or by any thing which resulted from such previous threats or promises. For, if such previous inducements were the remote or contributory cause of the confession, the policy of the law forbids that such confession shall be used in evidence; and when previous inducements have resulted in drawing a confession, the proof should be very clear and strong, that the mind of the prisoner had been completely disabused, so as to convince the court that the confession was as free as if no motives to make it had ever been offered to the prisoner. Less than this falls short of proving that the confession was voluntary. In considering the facts of each particular case, the degree of intelligence of the prisoner should be taken into the count.

In the present case, the strongest conceivable influences were brought to bear on the prisoner, to induce him to confess. The promises were of the most complete immunity from criminal punishment; and this guaranty was given and sanctioned by the court before which he was being tried, the brother of the deceased, and by the officiating attorneys of both the prosecution and the- defense. Never was importunity more vehemently urged, backed by a stronger array of personal influence, or enforced by the promise of a more tempting boon. A clear head and an imperious will could scarcely resist such combined influences. Under these the first confession was made, and it matters not that the prisoner then announced he expected to be hung; thus repelling, as it may be supposed, all idea that he was at all influenced to make the confession by the promises previously made him. It is very improbable that, in the absence of the im-portunities and assurances with which he was besieged, he would bave confessed bis guilt of tbe horrid crime, tbe commission of which was then so justly disturbing the public repose. In fact, tbe counsel for tbe prosecution, in view of tbe circumstances, admitted on tbe trial that tbe confession, then and thus obtained, could not be given in evidence against tbe prisoner. In this be but affirmed what all tbe law books teach.

Tbe second confession, made on tbe day following, tbe counsel for tbe prosecution also admitted was illegal evidence. In this be asserted only a legal truism, for two reasons; first, tbe inducements of tbe day before bad not been withdrawn; and, second, tbe confession was made to tbe officer who bad him in charge, and who, previous to tbe confession, bad given tbe prisoner three drinks of liquor. It is thus shown that, up to tbe time tbe prisoner was committed to jail, none of bis confessions were admissible evidence against him.

Were tbe explanation and withdrawal of tbe offered inducements, which took place when tbe prosecuting counsel visited tbe prison, sufficient to efface from tbe mind of tbe prisoner every trace of influence exerted by tbe promises made, so as to leave bis mind as free to act, as if no hopes or expectations of benefit bad been previously held out to him ? Are we convinced — fully convinced — that such was tbe case ? The recitals in this record do not enable us to answer these questions affirmatively. Tbe prisoner was evidently an ignorant man. He was confronted only by persons who believed him guilty, and could not be classed as bis friends. Neither bis counsel, nor any sympathizing friend, was present; and be was not warned or advised to reflect, or take counsel, before be made further confession. We do not say that this last step would be in all cases necessary; but, in tbe then condition of tbe prisoner’s mind, and with tbe persons then around him, it would bave been eminently humane and proper to do so. Above all, we do not think it was sufficiently explained to tbe prisoner, ignorant of such things, as we are satisfied be was, that none of tbe confessions previously made by him could be proved in court against him, or could exert any influence whatever in bis trial. This point should bave been made unmistakably plain to him. Less than this does not assure us that tbe prisoner may not bave believed bis former confessions bad sealed bis doom, and that any denial be might then make would be of no avail.

. In what we bave said, we do not wish to be understood as disapproving confessions of guilt, voluntarily made, as an instrument of evidence. When they are tbe spontaneous out-crop of conscious guilt, made without importunity, without appliances of hope or fear, if satisfactorily proved, they deserve to be classed with the highest evidence. No sane man, it is supposed, would deliberately and falsely volunteer a confession of his guilt, and thereby bring odium and probable punishment upon himself. Consequently, when a confession is freely and spontaneously made, it is an evidence that the virtuous instincts are not all deadened, and that conscience is doing its accustomed work. A self-accusing secret is a restless prisoner. It struggles for enlargement. "When, however, appliances and artifices are resorted to, as a means of inducing suspected persons to confess, such confessions come in so questionable a shape, that they deserve very careful, watchful scrutiny. The doctrine of admitting confessions in evidence, has been sometimes carried to the outer verge of propriety. King v. The State, 40 Ala. 314.

Many of the charges given and refused do not bear on the question of Porter’s guilt. They are only important as bearing on the guilt of other defendants. Of the charges asked and refused, several are of this class. Charges numbers 2, 5 and 6 assert correct legal propositions, and should each have been given. Charges 1, 4 and 7 were calculated to mislead, and should not have been given. The clause in the general charge, authorizing the jury “ to compare the confessions of each with the' other,” was calculated to mislead, and should not have been given, without a limitation. Parties were on trial, against whom no confessions were proved. Against such, neither the confessions of others, nor a comparison of the confessions one with another, should be allowed to have the slightest influence. As to them, such confessions were but unsworn hearsay; and should have been allowed to exert no more influence against them, than if the parties confessing had not been on trial.

An attempt made to prove any material fact, followed by a failure, is a circumstance to be weighed against the party making it. To say “it is a strong presumption against him,” is going beyond what any authority justifies. 1 Bur-rill’s Cir. Ev. 519, quoting from-Wills’ Cir. Ev. 83, says, such failure “is always a circumstance of great weight against a prisoner.” “Great weight” is not the equivalent of “'strong-presumption.” Presumptions in law are inferential, or prima fade facts. We are inclined to think Mr. Burrill states the principle too strongly. We cannot perceive, why a failure, in an attempted proof of alibi, should be visited with severer intendments, than a failure in the attempt to prove any other fact in defense. Of course, a fraudulent attempt to prove a simulated alibi, sustained by perjury, will, when detected, be a circumstance of great weight against tbe prisoner. Tbe connection in which Burrill employs the ■expression above copied, tends to show that he had reference to an unsuccessful fraudulent attempt to establish an alibi. In that sense, we agree with him.

The judgment is reversed, and the cause remanded. Let ihe prisoner remain in custody, until discharged by due •course of law.  