
    Jordan, a Slave, v. The State of Mississippi.
    1. Evidence: concessions obtained by violence not admissible. — By the tenth section of the first article of the Constitution of the State, it is provided that no person shall be compelled to give evidence against himself. This protection extends as well against violence used by private individuals, as to compulsion exercised by the officers of the government, in order to obtain a confession of guilt; and evidence obtained by such means, cannot be used against the prisoner, under any circumstances or for any purpose whatever.
    
    2. Evidence : confession and discovery made in consequence of : bule on the subject. — By the common law, “ where in consequence of the information obtained from the prisoner, the property stolen, or the instrument of the crime, or the bloody clothes of the person murdered, or any other material fact, is discovered, it is competent to show that such discovery was made conformably with the information given by the prisoner, although the information was obtained by the influence of hope or fear exerted upon him, but it is essential that the instrument or other material facts so discovered, must correspond with the description given by the prisoner.
    3. Slaves : jurisdiction of circuit court to try. — The Act of 1854, (Session Laws, 126,) providing for the examination of slaves charged with a capital offence, before two justices of the peace and five slaveholders, does not abridge the jurisdiction of the Circuit Court over capital crimes committed by slaves : and a slave may be indicted and tried in that court, without the preliminary examination provided for in the Act.
    4. Slaves : right of a slave to arrest a runaway. — -A slave has no right to arrest a runaway slave except on the premises of his master : nor has any white person, not being the owner, master, or overseer of the slave, a right to employ him in arresting a runaway.
    IN error from the Circuit Court of De Soto county. Hon. P. T. Scruggs, judge.
    
      Qlapio and Strichland, for the prisoner.
    The grounds of error relied upon in this case are three.
    First. The admission of the confession of the accused, which was obtained by threats and violence. Second. The overruling of the motion in arrest of judgment. Third. The overruling of the motion for a new trial.
    1. That the confession of the accused was not under the circumstances admissible in evidence; see Barb. Or. L. 419-21. It violates tbe last clause of the 10th section of the 1st art. of the Constitution.
    2. The ground of the motion in arrest of judgment, is that the accused had not first been tried according to the provisions of the Act of 1854, p. 126.
    8. The court should have sustained the motion for a new trial, because the verdict of the jury was contrary to law and the evidence.
    The statute relative to the arrest of runaway slaves, (Hutch. Code, 517, § 38,) does not authorize one slave to arrest another; and therefore the deceased had no authority to arrest the defendant, and not having such authority, the defendant, in resisting the arrest, was not guilty of murder. Nor does the fact that a white person, not the master of the slave, was engaged in the attempted arrest alter the legal aspect of the question.
    But there is no proof that the defendant knew that a white man was engaged in the arrest, for the homicide was committed in the night, and the features of the parties could not be discerned.
    But if he had known it, it would not have changed the character or grade of the offence, because the white man (Mallory) had no right to command the services of the slave, (Aaron) and he not being bound to obey, was a volunteer, and acted at his peril, he and the deceased meeting as equals.
    
    But if Mallory had the right to command the aid of the deceased in making the arrest, then two questions arise:
    First. Whether Mallory was himself engaged in the performance of a lawful act in a lawful manner. Second. If he were, how far could he clothe the deceased slave, Aaron, with the protection which the law gives to a white man under similar circumstances ?
    1. That Mallory had no right in making the arrest to resort to unnecessary harshness and violence; see Thompson v. Young, Opinion Book, 652, and cases cited in the opinion. To tear and' mangle the fugitive with dogs while attempting to escape by flight is as repugnant to policy and good morals as to arrest his flight by shooting or otherwise wounding or maiming him ; and if unnecessary harshness or cruelty was used in making the arrest, the defendant was entitled to resist it, and a homicide which was the result of such, resistance, cannot be murder. 3 Greenl. Ev. 119, § 127; not even if the homicide were intentional, and the perpetrator a felon. Ibid. 112, &c.
    2. But admitting that Mallory himself was performing a lawful act in a lawful manner, he could- not, under the circumstances, transfer to Aaron, the deceased slave, the protection which the law gives to a white man, even if the defendant were a felon. The rule of law protecting private persons coming to the aid of an officer attempting to arrest a felon, does not apply to a slave so engaged.
    But the defendant though guilty of a vice or fault in running away, was-not a felon, and the technical rule in such cases has no application to the arrest of runaway slaves.'
    There is no proof of, malice express or implied, without which the offence was not murder.
    The only pretext for the charge of express malice is the testimony of Benton, a slave, which is not to be relied upon as true; and even if true, proves nothing but an idle braggadocia, such as may at any time be overheard in the conversation of negroes, who have but the intellect of. children, without their moral culture. There was no threat on the part of the defendant to take life; but simply to use such means as were necessary to enable him to make his escape, if he should run.away and be arrested.
    Malice cannot be implied either from the relative position of the parties (the defendant not being a felon,) nor from the use of a deadly weapon. This can only be implied where there was a design to take life. Gotton v. The State, Opinion Book, 152. The object for which the deadly weapon was used is open to explanation. It is not enough that the evidence against the accused goes to show his guilt. It must be inconsistent with the reasonable supposition of his innocence. 3 Greenl. Ev. 31. The knife may have been obtained by defendant to procure food or resist the attacks of dogs. The circumstances warrant the inference that the defendant never had the knife which is referred to in the proof, but that it was pretended to have been found by the slave, Allen, and there is a strong probability that the homicide was in fact accidentally perpetrated by Mallory himself. Had there been no charges given by the Circuit judge, the verdict of the jury was manifestly contrary to law and the evidence, and should have been set aside.
    But the court incorrectly charged the law. The last clause of the first charge given for the State excludes the idea of explaining the intent with which a deadly weapon is used, and is contrary to the rule laid down in Gotton v. The State.
    
    The third and fourth charges on behalf of the State, and the last charge volunteered by the court in explanation or modification of the charges given on behalf of defendant, proceed upon the idea that the law applicable to the arrest of felons applies to runaway slaves, and therefore misled the jury.
    Looking to the peaceful and and tractable disposition of the defendant as shown by the proof, and reviewing all the circumstances connected with the homicide, the case is one appealing powerfully to the justice as well as mercy of the court.
    In addition to authorities cited, see Jennings v. Fundelery, 4 M‘0. 161; Richardson v. Dukes, lb. 156; Witsell v. Earnest and Parker, 1 N. & M‘C. 182; Copeland v. Parker, 3 Iredell,. 518.
    
      D. 0. Glenn, attorney-general, for the State,
    argued the case orally.
   Fisher, J.,

delivered the opinion of the court.

This was an indictment found by the grand jury at the June term, 1856, of the Circuit Court of De Soto county, charging the prisoner with the murder of a slave named Aaron, upon which the prisoner was convicted, and sentenced at that term of the court.

It is first assigned as error, that the court below erred in permitting certain statements or confessions of the prisoner to be given in evidence before the jury. One Mallory being introduced as a witness on the part of the State, testified, that after the killing of the slave Aaron, and after the arrest of the prisoner, he,, witness, and one Williams, went to the prisoner, and attempted to draw him into conversation in regard to the killing of Aaron;, that the prisoner refusing to answer their questions, they told him that if he did not talk, they would kill him; the witness having a pistol then cocked in his hand, with which he threatened to shoot the prisoner; and the other a stick, with which he threatened to strike, and did strike the prisoner one blow. Under the influence of these threats, and violence thus inflicted, the prisoner proceeded to state the time and place, when and where he lost his knife, describing it at the time. The court admitted this'evidenee to go to the jury, upon the statement of the district attorney, that he expected to show, by other testimony, that upon search being made, a knife, corresponding with that described, was found at or near the spot indicated by the prisoner. It is insisted by counsel, that the knife found upon this search does not correspond with that described by the prisoner, and that the court therefore erred in admitting the testimony. Counsel is, doubtless, right in his construction or view of the testimony, as well as the rule of law, that the place of finding, and knife found, must both agree with the description given by the accused, and if a discrepancy appeared, as to either or both, the court should have excluded the testimony. We prefer, however, not to rest our decision on this point upon this ground, as it would seem to sanction, at least to some extent, the legality of the testimony, as well as to give countenance to the unauthorized mode by which it was procured. If there is a principle which may be regarded as settled, in the criminal jurisprudence of this country, it is, that the accused has the right, under any and all circumstances, to maintain his silence in regard to the commission of the crime alleged against him, and the rule which protects him against a full confession of guilt, if it appeared that the confession had been extorted by violence, also protects him against testimony which could only be discovered, or made available through the instrumentality of such confession, for otherwise the rule could always be successfully evaded. The rule which excludes the whole confession must necessarily exclude all its parts. That which protects a man against the principal thing, must, of course, protect him against its incidents. The rule which secures a man against lawless violence, must, of necessity, to be efficacious, secure him against the consequences of such violence. It is no ■ answer to say that the confession was true — the question, and the only question which can be considered is, whether the confession was voluntary, extorted by threats or violence, or induced by the hope of reward, or immunity from punishment. It was not only the right of the party accused, to preserve his entire silence in regard to the killing, but to resist force by force, to compel him to act otherwise, if it had been in his power to employ such force. So far from the means employed to procure the confession being sanctioned by law, it is not even within the power of any branch of the government, as at present organized, to give to such means any legal validity whatever. He could not be compelled by any of the government authorities to give eviden'ce against- himself, and an express statute, authorizing such a course of proceeding, would be simply a nullity under the Constitution. It will certainly require no argument to show that there can exist in this State no rule of the common law, in regard to a particular subject, when an act of the legislature on the same subject would be nugatory. To state the proposition is to decide it. Let us then apply the principle to the case at bar. Can it be contended for a moment, that a confession extorted by a threat of violence, extending to even the life of the accused, would be admitted as evidence against him, merely on the ground that the violence was threatened by private individuals, and not by officers of the government. If it be true that a person, though accused of crime, is' still protected by law, upon what principle can it be contended, that his act shall bind him, if it shall appear that the act was the result of force, employed by persons in violation of this right ? Must all, or only a part of that which was wrung from him be treated as if it had never been uttered ? There can certainly be but one answer to these inquiries. The State being powerless as to this mode of procuring testimony, can give no countenance or sanction to a similar mode, when employed by individuals. The power which restrains the State, equally restrains her citizens in this respect. To hold otherwise would not unfrequently expose the accused to the excited passions or fury of that class of population who in all countries are the subjects upon whom the criminal jurisprudence of the government can be most beneficially employed.

We are therefore of opinion, that the court below erred in admitting the testimony.

It is next assigned as error, that the court below erred in refusing to sustain th.e motion in arrest of judgment. Counsel has insisted, that the Circuit Court could take no jurisdiction of the crime alleged to have been committed, unless it appeared that the slave had been first brought before two justices of the peace, and the triers specified in the first and second sections of the Act of 1854, p. 126, and by them adjudged guilty of a capital crime. We differ with counsel on this point. It may be true, that if the slave had been tried before that special tribunal, and acquitted of the crime of murder, by finding him guilty of a lower grade of crime, or guilty of no crime at all, that such judgment could be pleaded in bar of the indictment for murder. But this is very different from the question presented on the motion in arrest of judgment. The jurisdiction of the Circuit Court, in regard to capital crimes committed by slaves, not having been abridged by the Act of 1854, it was only necessary for the court to know that the case had been brought before it in the proper manner, by an indictment of a grand jury.

In regard to the third assignment of error, we deem it unnecessary to say anything, as one main point has already been considered. The prisoner’s confession was, no doubt, an important link in the chain of testimony, and without which it may be admitted that the verdict could not be sustained; but having been admitted, the court was bound to consider it as part of the testimony, in deciding the motion.

There is one other point which may be important for the consideration of the court, if another trial should be had, and that is, whether the instructions given in regard to runaway slaves are correct. The prisoner was a runaway slave, and the slave Aaron, acting under the command of a person who was not his master or overseer, was at the time he was killed, attempting to arrest the prisoner. It is not necessary that we should notice the circumstances under which the killing occurred, but only to decide the principle of law.

We agree with counsel, that the statute has not conferred upon a slaye tbe power to apprehend or to arrest a runaway slave, except on the premises of the master. One slave has a right to regard another slave only as his equal, and having the right, in such case, to repel force by force, a collision would almost invariably take .place between the parties, and often endangering the life of one or the other of them. It is equally clear to our minds, that a person having no right to command the services of the slave, or to control his actions, cannot command such slave to aid in arresting a runaway slave; for if such were the law, the master would be without remedy, if his slave should happen to be killed or injured in performing such alleged duty. Our opinion, therefore, is, that while a master may employ his own slaves in such business, either under himself or under his overseer, or agent, another, who has no Tight to control the slave, cannot employ or command him to assist in apprehending a runaway slave.

Judgment reversed, and venire de novo awarded.  