
    Simon (a Slave) v. The State of Mississippi.
    1. Evidence : confessions, must be voluntary. — A confession is not admissible in evidence unless it is made freely and voluntarily, without any restraint, and without any hope of reward, or fear of punishment. Slight expressions, calculated to couvey to the mind of the party confessing that he would obtain any benefit, or escape any punishment, if he would confess, will render a confession thereupon made, inadmissible.
    2. Same: same. — The rule which requires confessions to be free and voluntary, in order to render them admissible in evidence, applies to all statements made by a party nnder such circumstances as may charge him criminally, though, in terms, they apply to another person, or even purport to be a refusal to confess. See Roseoe Crim. Ev. 39 (4th ed.).
    3. Same : case in judgment. — The prisoner, who was a-slave, was pursued with dogs, as a runaway; and, after his capture, was bitten by the dogs, and stricken a severe blow by one of his pursuers; he was not then suspected of the murder of the deceased, and was asked by a white person present, why he run away; and, upon his failure to answer, was stricken by the interrogator, and warned that if he did not talk he would be knocked down. The prisoner was then asked, by the same person, “ what he knew about Hiram (another slave) killing the deceased ?” and was, at the same time, told, “ that it would be better for you to tell the whole truth about the matter, or about it.” The prisoner then stated “ that Hiram did not kill the deceased, but that he himself did it.” Held, that the confession was not voluntary, and that it was not admissible in evidence.
    4. Same : presumption op continuance op undue influence : case in judgment. — A confession made on the same day, and a few hours after a prior confession had been made, under a threat or promise, and in the presence of some of the same persons to whom the first confession was made, and without any caution having been given to the prisoner, is presumed to have been made under the influence of the threat or promise, and is not admissible in evidence.
    ERROR to tbe Circuit Court of Copiah county. Hon. John E. McNair, judge.
    The first confession, and the circumstances under which it was made, are very fully set out in the opinion of the court. It seems, from the record, that the prisoner was arrested about the middle of the forenoon, and in a few minutes thereafter made the confession, as stated in the opinion of the court. The confession to George Ellis, referred to in the opinion, was made between 12 o’clock M. and 1 o’clock P.M. About 3 o’clock, on the same afternoon, the prisoner was taken to his master’s plantation, and was there met by his master and Warren Ellis, and another person; and upon the approach of these last-named parties, Hatley, who had pursued and arrested the prisoner, with his dogs, and who had been present at the former confessions, being then accompanied by his dogs and armed, remarked to Warren Ellis and his comrades, “ Here is the murderer!” alluding to prisoner. Warren Ellis then, without making any threat or promise to the prisoner, or giving him any caution as to the consequences of his making a confession, asked the prisoner “ if he killed Norvell, and why he did it ?” To this the prisoner replied, “ that he killed Norvell; that he killed him by striking him four blows on the head with the helve of an axe; that he then threw the axe helve out of the door; and that Norvell was lying on the floor asleep, with his feet toward the fireplace.”
    To the introduction of this confession the prisoner objected, but his objection was overruled, and he excepted.
    The prisoner was convicted, and sentenced to be hung, and he sued out this writ of error.
    
      M. B. Harris and Benjamin King, for plaintiff in error.
    In capital cases, peculiar caution should be observed, as it is hardly to be supposed, that a man perfectly possessed of himself, would make a confession to take away his own life; it must generally proceed from a promise or hope of favor, or from a dread of punishment, and in such situations the mind is agitated; the man may be easily tempted to go farther than the truth; besides, the witnesses respecting the confession may have mistaken his meaning. Wharton’s Criminal Law, 8d edition, pages 313, 314, and authorities cited.
    When this confession was made, the prisoner had been chased for two miles, in a summer day, by negro dogs ; he had been immersed in water ; he had suffered the infliction of a blow over the head with the butt of a negro whip; he had been bitten by the negro dogs; he had been struck at for declining to speak; and had, after these things, travelled back a half mile, putting up several fences in the time, and being in the presence of, and in the custody of, armed men, and having at his heels a pack of negro dogs, whose teeth had recently lacerated his flesh, and being interrogated about the homicide by the very man who had before struck at him for not speaking, and being told by this man that it would be better for him to tell the whole truth about it, or about the matter, he confessed his guilt, Was this confession free an|d voluntary, or was it drawn out of the prisoner by fear, or hope to escape the immediate repetition of being bit and struck ? Would he have made this confession, if he had not been so interrogated and admonished ? What inducement was held out to him to make the confession ? It was the admonition in form, but threat in fact, “ It will be better for you to tell the whole truth about the matter.” Confessions made under such circumstances are inadmissible. Serpentine v. The State, 1 How. 256 ; The State v. Roberts, 1 Dev. 259 ; Wharton’s Grim. Law, 3d edition, 317; 2 East’s P. G. 659; 2 Russ. Crimes, 845; Rex v. Thomas, 7 Oar. & Paine, 345; United States v. Nott, 1 McLean, 499 ; State v. Kirby, 1 Strobhart, 155.
    But it may be argued, that, as the prisoner was asked to tell all he knew “ about Hiram’s killing Norvell,” and was not asked to speak of his own guilt, his confession does not come within the authorities cited. We insist that the form of the interrogatory put to him does not alter the case, seeing that he was told “ it would be better for him to tell the whole truth about the matter, or about it.” The admonition given by Willis Ellis could not have been regarded by the prisoner in any other light, than as a threat, that if he did not tell the whole truth about the killing of Norvell, he would be again struck, or have the negro dogs set on him ; besides, in consequence of the long chase the prisoner had had, the beating and biting that he had suffered, his mind must have been enfeebled and confused, and in a state not well adapted to fully comprehend the words, or their force, used by Willis Ellis in his interrogatory. The prisoner was a slave in the custody of a negro hunter and Willis Ellis ; they had authority over him, and had used it to his sorrow. We'submit that, as a slave, without any caution being given him, his confessions, even if made voluntarily, could not be given in evidence against him, inasmuch as a slave is always, when in the presence of those who have authority over him, in some sort of duress, so that, in such confessions, we more often get the wishes of the person in authority, or the slave’s belief of his wishes, than the truth. The State v. Charity, 2 Dev. 543; Spence v. The State, 17 Ala. 192; Wharton’s Crim. Law, 3d edition,' 323.
    If this first confession, made to Willis Ellis and George Hatley, was inadmissible in evidence against the prisoner, all the subsequent confessions are presumed to be under the same influence as the first, and therefore inadmissible. Serpentine v. The State, 1 How. 256 ; Peter v. The State, 4 S. & M. 31; 2 East P. C. 658 ; The State v. Gfuild, 5 Halsted, 163.
    T. J. Wharton, attorney-general, for the State.
   Handy, J.,

delivered the opinion of the court.

The plaintiff in error was indicted, tried, and' convicted, for the murder of another slave in the county of Copiah.

In the course of the trial, the State offered several witnesses to prove that the accused had made confessions of his guilt, under the following circumstances:—

It appears that the accused and the deceased were the slaves of one Lot W. Ellis, and that, early in the morning of the 23d of June, 1857, the deceased was found lying on the floor of the cabin in which he slept, wrapped in his bedclothes and speechless, having four severe wounds on the head sufficient to produce death, and of which he soon died; and an axe helve was found near, having on it the appearance of fresh blood, and there being a good deal of blood on the floor. A boy, named Hiram, belonging to the same master, had been run away for several days, and another boy and the accused had also run away on the night previous, or early in the morning, on which the deceased was found wounded. Pursuit was immediately made with dogs for the runaways, and the boy Andy was caught about four miles from the place, and the accused was pursued about two miles further, when he was found in the Bayou Pierre, up to his chin in the water, and having a scythe blade in his hand, which, by direction of the person in pursuit of him, he threw from him to the edge of the water, and obeying the order of the same person, came out. When he came out he was struck upon the head a severe blow, and was seized and bitten by the dogs. About the time the dogs were taken off from him, Willis Ellis, a brother of his master, came up, being ignorant of the circumstances above stated, and he was then told by the person who pursued the accused, in the presence of the accused, that the boy had been killed, and that Hiram was suspected of having committed the act. Willis Ellis then asked the accused why he had run a-way, and the accused not answering, he struck at the accused with his fist, and said to him that he would knock him down if he did not talk to him. The accused was then taken back by these persons the same way that his pursuers had come; and during that time Willis Ellis asked him “ what he knew of Hiram’s killing Norvelladding, at the same time, and before he answered, “ It will be better for you to tell the whole truth about the matter, or about-it,” and the accused thereupon said: “ Hiram did not kill Norvell; I killed him;” and proceeded to say that he killed him by striking him four blows on the head with an axe helve, as he lay on the floor in the cabin. He was then taken to the house of Willis Ellis, where soon after George Ellis came; and being told that the accused had killed Norvell, he inquired of him why he had done so, and he replied that he had done it because the deceased had told lies on him. He was then taken to his master’s place, and was met by him and two other persons, and Hatley, who had pursued and taken him, told them that there was the murderer, meaning the accused; and in answer to inquiries made of him, he made substantially the same confession that he had originally made to Willis Ellis. All these statements were made by him in the presence of Hatley, who was armed, and had with him his negro dogs. He afterwards made a like confession to two other persons in the presence of Lot W. Ellis.

Objection was made in behalf of the accused, to the introduction of these confessions, because they were made under undue influences; but the Court overruled the objection, and permitted them to be given in evidence ; to which exception was taken.

The propriety of the judgment depends upon the admission of this testimony, and the instructions granted or refused by the court in relation to it.

It is a very familiar and well-established rule, that a confession is not admissible in evidence, unless it is made freely and voluntarily, without restraint, and without hope of reward or fear of punishment ; and so strictly has this rule been enforced, that confessions, made after very slight expressions calculated to convey to the mind of the party confessing, that he would obtain any benefit, or escape any punishment, if he would confess, have been held inadmissible. And this rule has been applied to all statements made by a prisoner under such circumstances, which may charge him criminally, though in terms they apply to another person, or even purport to be a refusal to confess. Roscoe Crim. Ev. 39 (4th edit.) The reason, then, of- the rule is, that the confessions are not free and voluntary, but obtained by legal constraint, and are, therefore, not to be received as evidence of the truth ; and this principle applies as well to declarations made in relation to the guilt of others, so far as such declarations may be admissible, as to confessions of the prisoner in relation to himself. For the test is, not whether the declarations or confessions affect the party himself, but whether they are obtained by such legal constraint as to show that they were not freely and voluntarily made.

This view of the question meets the ground on which the confessions made by the accused to Willis Ellis, are contended to be admissible. That position is, that nothing was said to the accused to induce him to make confessions of his own guilt; that he was only required to tell the truth in relation to the guilt of the boy Hiram; and that he was told that “he had better tell the whole truth” in relation to Hiram’s act in the matter. Conceding that this was the purport of what was said to him before he made the confessions, still, it does not obviate the objection, that he was thereby placed under intimidation, and induced to make the confessions which he did make. The confessions are presumed to have been made in consequence of the appeal to his' hopes and fears, and cannot, therefore, be said to be the act of his own free will, and entitled to be taken as evidence against him.

But the admonition given to him was sufficiently broad to comprehend the entire subject of the killing of Norvell. When asked what he knew of Hiram’s killing Norvell, he was at the same time warned that “he had better tell the whole truth about the matter, or about it.” This was a distinct warning that he had better tell the whole truth in relation to the killing of Norvell; and the influence of the threat was as great to induce him to state all he knew about it, if he or any one else committed the act, as it would have been if it had been done by Hiram, as was supposed by the persons interrogating him. He was required to tell the whole truth, whatever it might be, about the killing, and was induced to do so, by what is in law such undue influence, as renders the confession thereby obtained, inadmissible.

We are, therefore, satisfied that the original confession made to Willis Ellis, was inadmissible, and should not have been permitted to be given in evidence.

The subsequent confessions to the same effect were made quickly after the original confession, and when one or more of the same persons were present, to whom the first confession was made; and the circumstances of time, place, and presence, under which the subsequent declarations were made, are such as to show that they were made under the same constraint which caused the original confession. Peter v. The State, 4 S. & M. 31. The subsequent confessions were, therefore, also inadmissible.

Note. — This ease was decided at the April Terrfl, A. D. 1858, and reported with, the eases of that term; but the MS. was lost or mislaid. This ease was again in this court, and will be found reported in 36 Miss. R. 636. On the subject of confessions, see Van Burén v. The State, 24 Miss. 516; Peter v. The State, 4 S. & M. 31 ; Jordan v. The State, 32 Miss. 382; Belote v. The State, 36 lb. 11; Broiony. The State, 32 lb. 433; Dick v. The State, 30 lb. 593; Serpentine v. The State, 1 How. 256 ; Peter y. The State, 3 How. 433.

Under this view of the evidence, it is unnecessary to consider the rulings of the court, in relation to the instructions upon the point of the confessions.

For the erroneous admission of the confessions, the judgment is reversed, and the cause remanded for a new trial.  