#### The State *v.*Samuel Roberts,

From Buncombe.

Where a prisoner has once been induced to confess by the impression • of hope or fear, confessions subsequently made are presumed to proceed from the same influence, until tiie contrary be shewn by clear proof. And whde this presumption remains unanswered, these latter confessions (though induced by no *immediate*threat or promise) are not admissible evidence.

The prisoner was indicted of a burglary, and on the trial before Strange Judge, *Mr. Solidfor fVilson*offered in evidence confessions made by the prisoner, under the following circumstances. After be was arrested, some person (one Smith, the prosecutor, being present) said, “ that as the prisoner was now *in custody, any confession*he might make, could not be given in evidence against him, he might therefore as well come out witli the whole truthand some other person added, “ that as he was a young man, if he made confessions it would be more to his credit hereafter.” Upon this, the prisoner made the confession which was offered to he given in evidence, but the Court rejected it.

It was then proved, that several days after the prisoner \\asf committed to jail, he of his own voluntary motion, requested the Jailer to send for *Smith,*stating that he wished to disclose to him the names of certain persons who hat! been concerned in, and advised the commission of the burglary. *Smith*came, and after the prisoner had stated his accomplices’ names, *Smith*asked him how he got the door open, in answer to which he described the manner of opening the door, and stated other circumstances tending to establish his guilt, many of which Were confirmed by the testimony of other witnesses.

These latter confessions the Court received and left to the Jury, who found the prisoner guilty : and a new *260trial being refused and judgment pronounced, the ner appealed.

No Counsel appeared for the prisoner in this Court;

The *Attorney-General*

cited *Roller's case*(2 *Starkie’s Ev. 50*«.) *Rowe’s ease (Appendix to Biirn’s Justice, tit. Evidence) Commonwealth v. Billón*(4 *Bal.*116) and *State*v. *Moore*(1 *Bay.*482).

Tatior, Chief-Justice.

I think it would be unsafe to extend the admission of confessions in evidence against a prisoner, further than a course of approved adjudica* tious warrant. The true rule is, that a confession cannot be received in evidence, where the Defendant has been influenced by any threat or promise $ for, as it has been justly remarked, the mind, under the pressure of calamity, is prone to acknowledge, indiscriminately, a falsehood or a truth, as different agitations may *prevail;*a%l therefore a confession obtained by the slightest emotions of hope or fear, ought to be rejected. Here, the prisoner was told his confession could not be given in evidence on account of his being in custody, and that he had better tell the whole *truth;*and further, that as he was a young man, it would be to his credit hereafter. Some confession was made under the immediate influence of the motives thus presented to him. Two or three days afterwards, without any immediate influence being exercised over him, he made a fuller *confession;*but it is impossible to say that the latter was voluntary, for it may have been the result of the hope first held out to him — and before it is admitted, the Court ought to be thoroughly satisfied that it was voluntary.

There ought to be a new trial.

Hai.Xi, Judge.

In order to make the confessions of a prisoner evidence to a Jury, it should appear that he was *261not induced to make them from a hope of favor, or com-Peiled by fear of injury

As to the first confessions made by the prisoner in this cas0j tw0 circumstances are observable : First, he was told, that any confessions he might make, could not be given in evidence against him, because he was in custody *;*and secondly, (hat if he made any it would be more to his credit hereafter. I think the Judge acted altogether right in rejecting, as evidence, these confessions, because they were made with the expectation of benefit, and under a belief that they could not afterwards be raised up in evidence against him. When these confessions were made, *Smith,*the prosecutor was present, and the confessions which were afterwards made to him in jail, appear to have been a continuance of those which were made as before observed upon. The prisoner, it is presumable, did not think that these would be used against him, more than those first made. Indeed it would seem a little strange, that confessions made at one time should? not be evidence, but a repetition of them afterwards should be, besides, it may be asked, why did the prisoner, by his last confessions, try to make others participate in his crime, unless it was therefrom to derive benefit, and lighten his own burthen ? I think these confessions were not of that voluntary character which the law requires they should be, to make them legal evidence. The first and last made confessions appear to me to be of the same character.-1 am of opinion a new trial should be granted.

Henderson, Judge.

Confessions are either voluntary or involuntary. They are called voluntary, when made neither under the influence of hope or fear, but are attributable to that love of truth which predominates in the breast of every man, not. operated upon by other motives more powerful with *him,*and which, if is said, in *262the perfectly good man, cannot be countervailed. These confessions are the highest evidences of truth, even in cases affecting life. But it is said, and said with truth,' that confessions induced by hope, or extorted by fear, are, of all kinds of evidence, the least to be relied on, and are therefore entirely to be rejected. It seems to lie admitted in this case, that the confessions first made, were of that character, and were therefore rejected *;*but that being repeated to the same person some time afterwards, they lost their original character, assuming that of free and voluntary ones, and became evidence of the truth. But for what reason I am at a loss to conceive. How or whence does it appear, that the motives which induced the first confession had ceased to operate when it was repeated ? It is not incumbent on the prisoner to shew that they resulted from the same motives. It is presumed that they did, and evidence of the most irrefragable kind should be produced to shew that they did not. It is sufficient that they may proceed from the same cause (4 *Star-Me*49). In fact, the latter confessions are mere duplicates of tiie first, and it might as well be said, that the copy is more perfect than the original. Had tiie prisoner gone further in the last confessions than in the first, such further admissions are all of the same character, and are supposed to flow from the same source. As to the confessions being corroborated by other testimony, that cannot affect the case. They were admissible, or inadmissible, of themselves.. It is true, that where a fact has been ascertained through extorted confessions, such fact may be proven. As if the prisoner disclose the place where the stolen goods are concealed, it may be shewn that the goods were found there ; but nothing that the prisoner said in regard to them is admissible. Were it not for authority, which I am not prepared either to admit or deny, 1 would say, that nothing but the insulated .fact pointed out by tiie prisoner’s confession should be *263proven, not even that the discovery was made by means of the confessions. (4 *Starkie’s Ev.*51). These corro-jj0 Patlng circumstances, 1 think were improperly received, and this upon authority, as well as reason; for the confessions cannot be propped by circumstances tending to establish their probability. The evidence shewing that, must rest on its own basis, and cannot be propped by confessions improperly obtained.

Per Curiam. — Judgment reversed, and new trial ^warded.