
    Dick, Aleck, and Henry, Slaves, v. The State of Mississippi.
    1. Confessions: 'when ADJiissiBM evidenob. — To render extrajudicial confessions of guilt competent evidence against the accused, it is only necessary, that they be fully and voluntarily made, without any influence of hope or fear superinduc-ing them : it is not necessary that the prisoner should have been previously warned, that he was not bound to criminate himself.
    2. Same. — The rule on the subject of the admissibility of confessions as evidence, laid down in Peter v. The State, 4 S. & M. 31, and in Van Burén v. The State, 2 Cushm. 512, recognized and adopted.
    3. Same. — The confession of a slave charged with the murder of his master, obtained by the declaration of a white person made in his hearing, “ that it would be better for tbe guilty to confess, that the innocent might not be punished,” is admissible as evidence against him.
    4. Practice: illegal evidence must be objected to toen offered. — If incompetent evidence be offered to the jury, it should be objected to at the time: it will not be error, for the court after its introduction without objection, to refuse to exclude it from the consideration of the jury upon motion.
    5. witness : accomplice, credibility of. — A party may be’convicted of a crime upon the testimony of an accomplice. His connection with the crime goes to his credibility, and not to his competency, and the jury are the exclusive judges as to the degree of weight his statements are entitled to.
    IN error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge.
    The proceedings in tbe court below, necessary to be stated, are fully set out in tbe opinion of tbe court, except tbe testimony of witness Peter (a slave). Tbis witness on tbe part of tbe state, testified as follows: “ That on tbe nigbt bis master was killed, be went with tbe prisoners to tbe bouse — they made him go with them. Henry went in first, Dick next, and Aleck stayed in tbe gallery. When they went in, bis master (Tbeopbilus Pritchard,) jumped out of bed: that Henry caught bold of him, and threw him on tbe floor, and choked him until be got tired, then caught bold of him, (witness,) and pulled him down, and made him take bold of bis master’s neck. He, witness, choked bis master, but tbe breath was nearly out of bis body, and be was nearly dead when be first took bold of him. They then took bis master up and put him in tbe bed, laid bis bands by bis side, and covered him up. Tbis was about two years ago.”
    
      Cfeorge B. WilMnson, and W. E. Pugh, for plaintiffs in error.
    Tbe first error assigned is: Tbe court who tried tbis cause erred, in overruling tbe motion to exclude from tbe jury tbe evidence of Julius Johnson and Tilman Johnson.
    1. Because tbe confession of each of tbe prisoners made after tbe deed was done, was permitted to go to tbe jury, as evidence to prove tbe guilt of tbe others. The confessions or admissions of an accomplice in a felony, made after the commission and completion of tbe offence, are not competent evidence against a prisoner, even though a previous conspiracy and combination between tbe prisoner and the accomplice to commit the felony, bas been proven. Hunters ease, 7 Gratt. 642; 2 Russ. ' Crimes, 652, n. 2 ; Stark. Ev. 31.
    2. Because these confessions were not voluntarily made, or obtained, even • had the prisoners been freemen, much less, as they are slaves, and perfectly under the control of those surrounding them, and in whose custody they were. The man who is born a slave, raised a slave, and knows, and feels his destiny and lot is to die a slave; always under a superior, controlling his actions and his will, cannot be supposed to act or speak voluntarily and of his free will, while surrounded by fifteen or twenty of those to whom he knows he is subservient, and by the law bound to obey. Such a being, in his physical, moral, and intellectual faculties, is, and must ever be, more or less subservient to the will and wishes of the freeman having the control over him; and when in chains, and informed that it would be better for him to confess, is under duress. Place man physically and morally, in perpetual slavery, and how, I ask, can the intellectual man be free ? Perpetual slavery and free will are incompatible with each, other. They cannot exist in the same being at the same time. By the laws of our state, the same evidence, and the same rules of law, that govern the trial of a freeman, govern the trial of a slave. If a freeman make confessions while under duress, or after being induced so to do by threats, fear, promises or hope, such confessions cannot be given as evidence against him; and the same law that governs the trial of the freeman, governs the trial of the slave.
    It will be borne in mind, that the prisoners made no confessions until late in the evening, and some of the white men had been there all day; and among the rest, the two Johnsons (the witnesses.) Nor did they confess until they were surrounded by eighteen or twenty white men, and after being arrested and chained, and told to confess; it was better for them. Bex-Y. John Wilson, 1 Holt. 597; 3 Eng. Com. Law R. 190; 2 Stark. Ev. 27, note n.; .2 Russ. Or. 645; Peter v. State, 4 S. & M. 31; Van Burén v. State, 2 Cushm. 512; Bex v. Stokes, 1 Am. Law Reg. 435.
    The court erred, in granting the third instruction asked for by the state. Because it does not state if prisoners combined, confederated, or agreed to kill, &c., or some like words: it was not n'e-cessary for. them all to be .present, &c. The design and agreement beforehand is wanting. The instruction is in the words “ ready and able the word willing should hare been added.
    The court erred, in granting the second and fourth instructions for the state; because neither of them confine the jury to the evidence before them as jurors, but permit them to take into consideration their private knowledge, to exercise any outside prejudice, and to carry with them into their retirement, all rumors they may have heard, before they were sworn to try this cause. Savenhurg v. Harper, 5 Oushm. E. 299, determined by this court in 1854, is in point.
    The court erred in refusing' the sixth instruction asked by prisoners.
    It does not appear that the negro boy Peter, was either sworn or charged before he was permitted to testify. Hutch. Code, 521, § 59.
    The record does not show that the prisoners were valued before-sentence of death was pronounced-upon them. Hutch. Code, 540, § 2 art. 20.
    The judgment of the court is against Pritchard for costs, the. ercord showing that he was dead at the time. It is therefore, so far, void, and being an entire thing, if void in part is void in toto.
    
    
      J). O. Gtlenn attorney general, for the state.
    1. The confessions in evidence were freely and voluntarily made. Each one made separate confessions, and each confession was properly received.
    2. There is no point raised on the instructions needing notice, save the allegation that they do not confine the jury to the evidence. I think this is a mistake. The first instruction does confine them, and it applies to all save the last instruction, which renews the restriction.
    8. It need not appear that Peter was sworn or charged before testifying. This court presumes he was.
    4. In Jade’s case, Miss. Eep., the court say, the assessment of a condemned negro has nothing to do with the record of his conviction.
    
      5. The question of costs raised, has nothing to do with the guilt or innocence of these appellants.
   Smith, C. J.,

delivered the opinion of the court.

The plaintiffs in error were indicted and tried in the Circuit" Court of Yazoo county; and convicted of the murder of Theophilus Pritchard. A motion was made for a new trial, which was overruled. Whereupon the prisoners excepted, and filed their bill of exceptions, which contains the evidence adduced on the trial.

The first exception taken to the judgment below is, that the court erred, in overruling the motion of the prisoners, “ to rule out all the testimony as to the confessions of the prisoners.”

To determine the validity of this exception, we must refer to the evidence, as it appears in the bill of exceptions.

Julius Johnson, the first witness called for the prosecution, testified, that “ on the morning of the day of the death of Pritchard, the boy Aleck come to his house, and informed him that his master was dead; that he went over about an hour by sun in the morning, and found Pritchard in bed, with his hands down on his sides, lying on his back, dead: that from appearances, he had not been dead long: some warmth about his heart. Afterwards, when a post mortem examination was had, there appeared bruised blood on one side of the neck about as large as a dollar, and something like the print of fingers on the neck: gave no other views or evidence of violence on the body except a scratch or two on the leg, and one of his toe-nails was loose; that the coroner arrived there in the evening about an hour by sun; that there were some sixteen or twenty white men there before any attempt was made, to his knowledge, to get any thing out of the negroes; or if so, he thinks they made no confessions until after the coroner arrived; then Dick confessed to him that he knew his master was killed; that the boys had laid this plan to kill him ; and that he agreed to it; but he remained outside the door while the others went in. This confession took place in the yard.”

Aleck confessed he helped kill his master; said they went in, and his master was asleep: he woke up and jumped out of bed; he and the other boys canght him and threw him on the floor, and choked him until he was' dead.”

Tilman Johnson testified, that he went to Pritchard’s soon in the morning, and remained there all day; that in the afternoon all the negroes, or nearly all except Dick, were in a room together. In talking to the negroes about the death of their master, he said to them all, that it would be better for the guilty ones to confess, that the innocent might not be punished: that when he made this remark, Aleck and Henry were chained, and he thought Henry was asleep ; but he jumped up, and said, “it was no use to deny it any longer; and stated that he and the other boys went in and killed their master, by choking him, and then laid him on the bed, as he was found. The coroner and jury were then in the other room of the house, and the negroes were in charge of one, in whose possession the coroner had placed them.”

No warning of any kind whatever, was giren to the prisoners of their rights, — and that they were not bound to make any confession, by which they would criminate themselres.

The confessions of the prisoners, Dick and Aleck, were not made before an ofEcer during the course of a judicial examination. They were made to the witness, with whom they happened to be present. No effort was made, by the witness or any one else, by threats or promises to induce these parties to confess. The confession of each appears to hare been perfectly roluntary. Under these circumstances, it was not neeessary, in order to render their confessions competent eridence against the party making them, that they should hare been informed of their rights, or warned that they were not bound to make any statement which would tend to inculpate themselres. As eridence, therefore, against the party making them, these confessions were clearly competent.

According to the rule recognized in the case of Peter v. The State, 4 S. & M. 31, and in that of Van Buren v. The State, 24 Miss. Rep. 512, the confession of the prisoner, Henry, was incompetent; and' doubtless would hare been excluded, if it had been objected to when offered on the trial. But no objection appears then to hare been made to its introduction as eridence. It was too late after the confession had gone to the jury, without exception, for tbe prisoner to object, and move for its exclusion. And, moreover, tbe force of tbe exception, if it were conceded that it was made at tbe proper time, is materially weakened, by tbe subsequent action of tbe court.

Tbe judge, at tbe instance of tbe defendants, charged tbe jury, u tbat tbe confessions of tbe prisoners, made while in custody of tbe coroner, or bis appointees, are not evidence unless they were first warned tbat they were not bound to criminate themselves.”

If tbe jury observed this instruction, in estimating tbe guilt of tbe accused parties, they not only excluded from their consideration tbe confession of tbe prisoner Henry, which in our opinion was incompetent evidence, ■ but likewise tbe confessions of Dick and Aleck, which we think was proper evidence in tbe cause; as it was distinctly stated by all tbe witnesses, tbat no such warning or caution was given to tbe prisoners.

Assuming tbat this instruction was correct, (and no objection as to its legality can be beard as coming from tbe parties, at whose instance’it was given;) and tbat it was obeyed by tbe jury, let us see whether there was not other evidence before them which fully sustains tbe verdict.

Tbe testimony of tbe witness, Peter, who was jointly indicted with tbe prisoners and acquitted on a former trial, is direct and clear, and establishes every material fact necessary to be proved, in order to fix tbe guilt of tbe accused.

Upon bis examination, this witness confessed tbat be was an accomplice in tbe commission of tbe crime. This, however, did not disqualify him as a witness; and as to his credibility, the jury were the exclusive judges. As they gave credit to his testimony, we are bound to bold tbat the verdict was sustained by sufficient evidence, independent of the confessions of the prisoners.

There are other objections made to tbe judgment, but as, in our opinion, they are unimportant or untenable, we deem it unnecessary to notice them specially.

Judgment affirmed.

HANDY, J.

I concur in the above opinion.

Eisher, J.

—I disagree as to so much of the opinion as bolds, that tbe judgment must be affirmed as to tbe slave Henry.  