#### THE STATE *vs.*JOHN COWAN.

It is sufficient to admit a witness to prove a conversation of the defendant, when he says he can state all that passed on the occasion, when that conversation occurred, whether relative to that controversy or any other subject. It is not necessary for him to be able to slate all the conversations of the defendant, which he heard before or after the conversation offered to be given in evidence.

A defendant, in his exception, must shew some error to his prejudice ; other, wise this Court will not set aside the verdict of the jury.

When a magistrate, on the examination of a prisoner, accused of robbing an individual of a watch on the previous night and on whom the watch was found, told him “that unless he could account for the manner, in which he become possessed of the watch, he should be obliged to commit him, to be tried for stealing it,” this did not amount to such a threat or influence as would prevent the introduction of the subsequent confession of the accused, especially as the magistrate repeatedly warned him not to commit himself by any confession.

A prisoner may be convicted, upon his own voluntary and unbiassed confession, without any other evidence.

If an indictment for robbing, under the Statute, charges that the robbery was *in*the highway, the State cannot give in evidence that it was *near*the highway. *1*

A wharf, simply as such and not being part of a- street, is not a public highway.

An indictment for highway robbery, which charges that the property was taken from the person and against the will of the owner, feloniously and. violently, is sufficient.

Appeal from the Superior Court of'Law of New Hair-over County, at the Spring Term, 4847, his- Honor Judge-Battle, presiding.

The defendant was indicted for - high-way robbery. On the trial, a witness, named tlall,, was introduced to-prove a conversation, which he heard between Cowan- and Price, who were confined in jail for the same offence. The prisoners were in different cells', but could converse through a sink, which passed under-both cells. The witness was asked if he could state all the conversation which passed between the prisoners, to which he replied that he could not, that he could only state what had beestt ' *240said by one to the other on a particular occasion. This was objected to by the prisoner’s counsel, but admitted by the Court.

The principal testimony relied upon by the Solicitor for the State, for the conviction of the prisoner, was his own confession. As to that, Mr. JamesT. Miller testified, that he was one of the Magistrates, before whom the prisoner was examined previous to his commitment for trial: that after he had closed the examination, Mr. G. W. Davis, the British Vice Counsel, who was present, asked of the prisoner one question, what, the witness did not recollect, but it was one, which he supposed might induce the prisoner to say something prejudicial to his cause, and he immediately cautioned him against making any confession, telling him, that he was not bound to do so, and that if he did make any confession, it might be used against him.

Mr. G. W. Davis testified, that he did not recollect asking any question of the prisoner, and he thought Mr. Miller was mistaken in thinking that he did so. He stated that after the watch, which it was alleged had been taken from Captain Rodney the night before, was proved to have been in the possession of the prisoner, Mr. Miller told him, that unless he could account for the manner in which he became possessed of it, he should be obliged to commit him to jail to stand his trial for stealing it: that the prisoner stated that he was anxious to sleep on boai’d a vessel, which was about to sail, and then commenced stating how he got the watch, when he was cautioned by Mr. Miller not to make any confession, as it might be used against him, but he declared that he would tell all about it. Under these circumstances the prisoner’s counsel contended, that his confession was inadmissible, because it was not free and voluntary, but obtained either by the question put to him by Mr. Davis, who it was alleged had an influence over the prisoner, who was a sailor, on account of his, Mr. Davis’ *official**241station, or by the remarks of Mr. Miller, the Magistrate, that, if he did not account for the manner in which he got the watch, he must be committed to jail.

The Court deemed the confession admissible where, upon the witnesses stated that the prisoner confessed, that he had knocked Captain Rodney down and taken his watch from him, and that the watch then produced, which Captain Rodney claimed as his, was the one which he took. Mr. Miller stated that his impression was, that the prisoner stated that this took place in the street, but he was not entirely certain, but that it was on the wharf. Mr. Davis stated that he understood the prisoner to say, that Captain Rodney was near a gate, when he knocked him down, and that, in taking his watch, he broke the guard and buried it in the street, near the body of Captain Rodney. It was proved and not disputed, that Captain Rodney was badly wounded on that night, having received several severe cuts and bruises on his head and face. It was also proved, that the wharf, near where the robbery was alleged to have been committed, was used by the public, and was not in any manner enclosed, though some wharves below there were private property. The witnesses, Miller and Davis, stated, before testifying as. to the prisoner’s confession, that they believed they could give the substance of all that the prisoner confessed.

The Court in the charge to the jury, after calling their attention to an alleged discrepancy in the testimony of the witnesses Miller, and Davis, with remarks thereon, told them that the prisoner’s confession alone, if believed by them to be true, would justify them in returning a verdict of guilty, and much more would they be justified in rendering such a' verdict, if they found the confessions or any material part of them corroborated by other testimony ; and that whether the offence was committed in the street or on the wharf, it was highway robbery.

The prisoner was convicted, and his counsel moved for a new trial.

*2421st. Because of the admission of the testimony of Hall.

2nd. Because of the admission of the confessions of the prisoner.

3rd. Because the Court charged that the confessions •alone would, if believed, justify a conviction, it being contended that the *corpus dcliciti*ought to be proved by .testimony, independent of the confessions.

4th. Because the Court charged that the wharf was ,a highway.

The Court overruled the motion and pronounced •sentence of death, from which the prisoner appealed to .the Supreme Court.

*Attorney General,*for the State.

*■Strange,*for the defendant.

Ruffin, C. J.

This Court is of opinion, that neither of the three first objections, taken for the prisoner on his ■trial, entitles him to a *venire de novo.*

That to the evidence of the witness Hall, is entirely groundless. It would seem to be sufficient, if a witness, who is called to prove what another said or deposed to ■on a former occasion, swears that he is able *to*state all that was said on the subject of controversy, at the time to which his testimony refers. At all events we hold it ■sufficient to admit a witness, who says, that he can state all that passed on the occasion when that conversation occurred, whether relative'to the controversy or any other ¡subject. Such was the state of the facts in this case. The declarations of the prisoner at *another time,*or his ■conversations with Price or another person upon a different occasion, were not admissible evidence, whether .proved by this or any other witness. Besides, the exception does not set out the testimony given by Hall; and, for ought that we can tell, the declarations proved by him ■may have been irrelevant, and, so, harmless; or they jmay have been beneficial to the-prisoncr. It is ncccs-*243sary, that the appellant should show in his exception some error to his prejudice, otherwise'this Court cannot undertake to set aside the solemn verdict of the jury.

We do not see the least ground for saying, that the prisoner’s confessions were obtained by any undue means —either threats, or promises, or any other improper influence ; but they appear, as far as we are at liberty, or can judge, to have been “free and voluntary,” as the expression of the books is. It is impossible to hold, that the. mere presence of a gentleman, holding the respectable station of Vice Consul under a foreign Government, could place the prisoner, while under examination before a Magistrate of this Country, under any inducement, but that of his own will, to make a confession; or that putting a question to him by that gentleman, the nature of which, if put, the witnesses could not state, could have any such effect: and that, the more especially, when the Magistrate, according to his duty and the dictates of humanity, not only once, but twice cautioned the prisoner against making a confession and informed him that, if he did, it might be used against him. It was contended in the argument, however, that the confession was extorted by a threat of the Magistrate himself, in saying to the prisoner, “that unless he could account for the manner in which he became possessed of Rodney’s watch, he should be obliged to commit him, to be tried for stealing it.” This was treated as a demand.on the prisoner, that *he should tell*how he came by the watch, under the penalty of imprisonment. But that is doing great violence to the language and purpose of the examining Magistrate. The prisoner was not asked *to tell*any thing about the matter ; but he was required to *account*for his having the watch, that is, to account for it by proof, and not by any declaration of his own, in order, as the Magistrate humanely informed him, he might thereby repel the legal presumption, that he came dishonestly by the article, of •which the owner, it appeared, had been robbed the night *244before. So far from that communication being capable of being regarded as a threat, it was really sound legal advice, calculated to put the prisoner upon a proper de-fence, if he could establish his case by proof. And that such was the purpose of the remark is obvious from two considerations. The one is, that no statement of the prisoner, merely, could have been sought by the Justice, as *that*could not satisfactorily “ account” for the prisoner’s possession of the watch, so as to authorize his discharge. And the other is, that the Magistrate perceived, that the prisoner, notwithstanding his previous caution, was as he thought, about to state, how he got the watch, and immediately, in order to correct any possible misapprehension of the prisoner and to apprize him of the consequence, cautioned him again not to make any confession. More could not have been done to put the prisoner upon his guard and instruct him as to his rights. But he persisted in the resolution to confess, declaring that he would tell all he knew about the matter ; and he went on, accordingly, to admit his perpetration of the robbery. It would seem, that if any confession is to be deemed voluntary, .and to flow from a sense of the obligation of truth, this must.

We likewise hold, that his Honor directed the jury correctly as to the effect they might allow to the prisoner’s confessions. There was, indeed, evidence in corroboration of the confession, namely, the injuries inflicted on Rodney, which added "greatly to the credit, to which the confessions, in themselves, might be entitled. But we believe, that it is now held by Courts of great authority, that an explioit and full confession of a felony, duly made by a prisoner, upon examination on a charge before a Magistrate, is sufficient to ground a conviction, though there be no other proof of the offence having been committed. We are aware that speculative writers do not agree in opinion entirely upon the respect due to evidence of this character. This is much like the diversity of opinion among legal essayists, upon the sufficiency of the *245unsupported testimony of an accomplice to justify a conviction. Notwithstanding the doubts thrown upon the point in that manner, persons, having the responsibility of the judicial station, were obliged, when once the evidence was held admissible, to leave its sufficiency, according to the *evidence*actually yielded to it, to the jury, whose province it is to say, what the fact is. There are many cases to the effect, that there may be a conviction upon it alone. 1 *Leach. Or. C.*464, 478. *State*v. *Haney, 2*Dev. and Bat. 390. *State*v. *Weir,*1 Dev. 363. So upon the question in this case, Chief Baron GxlbeRT, for example, deems a confession evidence of *the*highest and most satisfactory kind, *Gibb. Ev.*123 ; while Mr. Blackstone, 4 *Com.*357, expresses quite a contrary opinion, that it is the weakest and most .suspicious of alt evidence. We might be at some loss in selecting, between vtwo such eminent authors, a guide on this question. But we are relieved from that necessity by judicial decisions, which seem to have settled the question, and therefore may be safely adopted. In *Eldredge’s*case, Russ, and Ry. Cr. Cases 440, the presiding Judge told the jury, that, independent of the prisoner’s confession, there was, in his opinion, no evidence of a felony, and he left the case to *them on the*confession alone; and all *the*Judges held a conviction on that evidence right. The case of *Rex*v. *FalJmer*& *Bond,*Id. 481, was similar, and with the same result. *Rex*v. *White*& *Langdor,*Russ. & Ry. 507, is to the same effect; and in the next case, that of *Rex*v. *Tippet*all the Judges thought the conviction right, as there was some evidence, besides the confessions, which made it probable that the felony had been committed, and a majority of the Judges held, that, without the other evidence, the prisoner’s confession was evidence, upon which the jury might convict. These recent'decisions, to say nothing of the earlier ones in *Wheeling’s case,*1 Leach *311,*and in *Lambe’s case, 2*Leach 554, fully bear out his Honor in the instructions he gave upon this trial.

*246It is not sufficient to impugn the principle established by them, that there have been instances, in which men have charged themselves with offences, which they did not commit, or which had never been perpetrated. For that argument would destroy all confidence in evidence, circumstantial or direct; since, by each, human tribunals have been or may be misled. But the administration of justice cannot depend upon such nice possibilities. It may safely, and, indeed, must necessarily, proceed upon the common experience of men’s motives of action and of the tests of truth. Now few things happen seldomer, than that one, in the possession of, his understanding, should of his own accord make a confession against himself, which is not true. Innocence or weakness is therefore sufficiently guarded by the rule, which excludes a confession unduly obtained by hope or fear. Hence, if one pleads guilty, there-must be judgment against him. So, after a plea of not guilty, if the accused will make to the jury a plain and open declaration of his guilt, including all the facts, which go to make up the offence legally, the Court can do no less than tell the jury, they may act on such a declaration, and that it renders other evidence unnecessary. Of the same grade of evidence, precisely, is a confession out of Court, provided only it be fully proved and appear to have flowed from the prisoner’s own unbiassed will. • Such a confession, which goes to the. whole case, is plenary evidence to the jury.

His Honor next instructed the jury, that whether the robbery was committed in the street of Wilmington or on the wharf described in the exception, it was a highway robbery. In that position, the Court is of opinion, there was error. It is trae, there was evidence, on which the jury might well be supposed to have found the robbery was in the street, and, if they had said so, this difficulty would have been removed. But as they did not state, where they believed the act to have been done, we must, under the instructions, assume it to have been on the' *247wharf. The description of the wharf and the relative positions of it and the street do not appear very explicitly in the case. It is possible, the wharf may form part of the street, at its termination ; for example, as some are made for ferry landings. But we cannot assume it to be so, especially as the presiding Judge distinguished between the street and the wharf, as being different places. The most we can presume is, that the public freely and rightfully used it; as it is stated that, although there were, near it, other wharfs, that were private property, this was not enclosed and was used by the public, and no private right in it is suggested. But, supposing it to be a public wharf, or a county wharf, as it is said such wharfs are sometimes called, the doubt arises, whether it be a public highway; for, if it be not, this indictment is not sustained. The statute takes away clergy from the offence of “ robbing any person in of near any public highway and as this indictment has but one count and. that charges the robbery *in*the highway, and it is found to have been on the wharf, the evidence does not support the allegation, unless it be true that the wharf is a highway. We speak thus, althoug'h the wharf is taken to abut on the street, and the latter is undoubtedly a highway in the strictest sense; so that a robbery *on*the wharf would be within the statute, as being done “near” the highway. But as the place in this ease is material, it is necessary, we think, to state it truly, in the words of the act, either as being *in*or *near*the highway, so as to facilitate a defence upon *auterfois acquit*or *convict,*

It is true that Lord Hale, 1 *Pl. C.*535, says, that an indictment of a robbery *in vel prope altam viam regionem,*though in the disjunctive, was usual at Newgate, though an indictment ought to be certain ; and it is to be inferred from the whole passage, that proof that it was committed either in the highway or near to it would support the indictment, and enable the jury to find it, so as to oust clergy. But Lord Haj.r does not mean to lay it down*, *248that it is a necessary form of the indictment, that it should ' in every case state the robbery to be “ in *or*near the highway,” but only that it wTas admissible and usual; and that when so laid, it would be sustained by evidence of a robbery at either place. It is clear from the precedents, that they often laid the offence to be *in the*highway, by itself, and often laid it to be near'the highway, according, probably, to the facts ; and it is probable that it was frequent to have two counts, the one laying it », .and the other *near,*the highway. We own, that were it not for the great'authority of Lord IIalb, we should have thought one count in the disjunctive bad. But although indictments for robbing in *or*near the highway were tolerated, and under such an one the proof might be of the one or the other, yet fairness to the prisoner and ail legal analogy require, that, when the offence is laid positively to have been committed in *one of those*ways, it ought to be proved as laid, and not in the other mode. As we conceive, therefore, this indictment would not be sustained by evidence, that the place of the robbery was not *in,*but *near*the highway. The members of *the*Court are not familiar with such subjects, and, perhaps, may err from not knowing, how persons engaged in commerce regard those places, and to what actual uses they are directed or can rightfully be applied. *A highway*is well understood in the law. It is said in England, that there are three kinds ; but they all agree in this, that they are common to all persons to pass and repass at pleasure. We know of but one kind here, as yet; namely, public roads or streets, over which all citizens may go at will on foot, or horse back, or in carts or carriages. They are thorough-fares, over which people travel from one part of the Country to another. But a public wharf does not seem in its nature to be a highway,, in any sense in which we have found either word used. A wharf is sometimes made on the land at the water’s edge, and is sometimes built in the water to the channel of a river or *249other part, and is a space, as we take it, for the deposit of goods, in order conveniently to lade and unlade vessels. To those ends drays, carts, and other vehicles of burden go on them to carry or take away merchandize, and the merchants go also, either on foot or otherwise according to their health or convenience, to look to their property and conduct their business. A. public wharf is, for those purposes, no doubt, open to all persons. The public have an interest in it, so that it is not *prioati juris*only ; and in that sense *“*it is *like*a public street” as was said in *Bolt*v. *Stennett,*8 T. R. 608. But it does not follow, that it is a *'highway,*any more than a Court House or a Church is, because the former is open to all persons to witness the administration of justice, and the latter to worship in. The public use of a wharf is not to pass from place to place over it, but it is merely for" the convenience of commerce abroad, that is carried on in ships. With these views of the question, we must.hold, that a public wharf, merely as such and not being part of a street, is not a highway ; and, consequently, that the prisoner was improperly convicted.

As the case will, probably, be tried again, it is proper to notice an objection taken, on the argument here, to the' indictment. It charges a felonious assault in the county of New Hanover on the 29th of March, 1847, *“*in the common and public highway of the State, in and upon one J. H. R. then and there being in the peace &c. and him the said J. H, R. in bodily fear and danger of his life in the highway aforesaid, then and there did feloni-ously put, and one silver watch of the value &c. of the proper goods &c. from the person and against the will of the said J. II. H. in the highway aforesaid then and there feloniously and violently did steal, take and cany away, against the peace and dignity of the State.” It was contended, that the indictment was insufficient, because, although it charges the putting in fear in the beginning of the indictment, it docs not state *the robbery*

*250to have been *by means*of such putting in fear or by-violence. A sufficient answer to this argument is, in the - first place, that the indictment in that respect is according to the ancient precedents, as appears in *Tremain*288, and *Dogherly’s Cr. Cir. Comp.*682. But in truth, the indictment does charge the robbery to have been by those means. It states the putting in fear first, and then proceeds, that the prisoner one watch from the said &c. “ then and there” feloniously and “ violently” did steal. It is clear therefore that by means of the *“ibidem*and *tunc,”*the verdict connects the putting in fear and the stealing together, so as to make the whole one transaction. But, if that were otherwise, it expressly charges a taking in the highway, from the person, and against the will of the owner, “feloniously and violentlyand thus makes violence *the means*of effecting the robbery, which alone is sufficient according to Mr. Blaokstone. He states that it is not necessary, though usual, to lay in the indictment, that the robbery was committed by putting in fear, but that it is sufficient, if it be laid to be done with violence, 4 *Bl. 243. The*same appears from *Donatty’s*case, East. C. L. 783. Indeed that results from the definition of robbery, which is a taking by violence, *or*by ^ putting in fear. The indictment would therefore do, if it had been supported by evidence of a robbery *in*the highway, instead of one *near*it.-

Per Curiam. Judgment reversed and *venire de novo,*