#### STATE vs. PATRICK, A SLAVE.

It is too late, after a juror has been taken and accepted by the prisoner, and has served on the trial, to except to him for incompetency.

The 32nd see., ch. 35 Rev. Code, limits the number of peremptory challenges in capital cases to twenty-three.

The declaration of the deceased, that he was afraid that another person than the prisoner would kill him, is not competent evidence.

"Where one, who had, from facts and circumstances, satisfied himself of the guilt of the prisoner, who was a slave and had been previously in the service of the witness, and told himhe might as well tell all about it, for he toas satisfied, and again, being a little angry, said to the prisoner, “if you belonged to me I would make you tell,” and repeated the first declaration several times, to which the prisoner each time made a denial of the charge, but afterwards, of liis own accord, the prisoner took the witness aside and then made a full disclosure, such confession is admissible.

It is not error for a Judge to refuse to charge the jury that confessions are to be made with caution and distrust, especially if he proceed to make proper comments on the nature of such testimony.

This was an indictment for murder, tried before bis Honor, Judge Person, at tbe Spring Term, 1856, of Pitt Superior Court.

Tbe defendant was charged with tbe murder of Allen Green; and one John W. Forties was in tbe same bill charged as an accessory before the fact. The slave was tried alone.

1. On tbe trial, one of tbe venire who was not a slave-owner, was drawn, and being tendered to tbe defendant was accepted by him, no objection or question being at tbe time raised as to bis competency to sit on tbe jury. After tbe trial and conviction, the counsel moved for a venire ele novo, on the ground that be bad not been tried according to law in this particular,

2. After tbe prisoner bad challenged twenty-three of tbe panel peremptorily, one was offered whom he again challenged peremptorily, but bis Honor ruled that no more peremptory challenges could be allowed, and there being no challenge for cause, the person tendered was sworn as a juror. For this defendant excepted.

*4443. The defendant offered evidence to prove that the deceased had declared, some time before his death, that he was afraid of John W. Fornes, and expected he would kill him yet. This evidence was objected to by the Attorney General and ruled out by the Court. Defendant excepted.

The counsel for the prosecution offered the confession of the prisoner, which had been made under the following circumstances : It was proved by one Ventres that about 8 o’clock at night, on the 20th of December last, he saw the body of the deceased lying on the path, about one-fourth of a mile from his own house, having gun-shot wounds in several places. He also saw his cart there a little nearer the house. About sun-set the same day, as he was going home from feeding his hogs, he met the prisoner upon the path which leads from the house of the witness to that of the deceased, and about two hundred yards from the latter. He saw him again about mid-night upon the witness’ plantation, where he (Patrick) had a wife, and asked prisoner if he had heard a gun, and where he was at the time. He answered that he did, and that he was at the Puncheen branch, which was about half a mile from where Green’s body was found.

Next morning this witness went to where the body was found, and discovered a plain track near by, a little way from the path; there was the print of the half-sole, with tacks all around it. About ten o’clock that night, the defendant was arrested under a warrant, and tied; he was then carried into the dwelling house of the witness, and there kept all night, sitting or lying on the floor. Those who guarded him sat up all night, there being no places for them to lie down. The prisoner asked why he was arrested; to which the officer replied, he had a complaint against him. Early next morning the officer put the prisoner in charge of this witness, and went to notify the owner, Mr. Clark. 'Witness, soon after, took Patrick to the place where Green’s body was lying, for the purpose of comparing the track which he had found there with his (Patrick’s) boot. He made him take off his boot, and putting it into the track, it seemed to fitprecisely.” He *445then said to Patrick, “ you might as well tell all about it, for I am satisfiedhe denied it, and the witness being a little angry, said to him, “if you belonged to me I would make you tell.” The prisoner still denied it. They went back to the witness’ house about breakfast time. After breakfast he went to where Patrick was, in his wife’s house. He then said to witness, “ did you ever catch me in a lie 2” to which he answered, “ no, not about your work.” Patrick said: “Are you afraid to go one side with me?” "Witness said, “no.” They then went out together, Patrick still having his hands tied, as he had been ever since the arrest. The witness, on coming to a fence, stopped, when the prisoner asked him “ if he was afraid to go over the fence a short distance,” to which he said, “ no.” They crossed the fence and sat down on a log. To further interrogations from the defendant’s counsel, this witness said, that he owned Patrick’s wife, and that he had hired him for two or three years preceding that year; that he was the father-in-law of the deceased. He said he could not say that he had not repeated as many as half a dozen times, “ You might as well tell all about it, for I am satisfied.” He said he did not mean that Patrick should understand from this language that it would be better for him to tell, but that it would not alter his opinion about the matter. The witness did not remember whether he told Patrick, on the night when he was arrested, what was the charge against him; but if he did, Patrick denied it. He thinks that the conversation there was about the murder of Green. He said, also, that Patrick did not sleep or lie down that night. Another witness,' one Thomas Tomes, said that Ventres, the preceding witness, accused the prisoner of having threatened the life of a slave belonging to him, to which he replied, he reckoned that must have been when he was drunk, and had a quarrel with Alex. He also said Patrick was told that night, of the charge against him, but he denied it.

Another witness, one O. W. Moore, the coroner, said that, on the examination of the body, Patrick confessed that he had done the act, and gave the minute particulars of the horn*446icide. He- said no influence had been used to get him to confess, nor was any • caution given him. He said the prisoner was treated kindly. This was after his confession to Yentres.

Iiis Honor, upon this proof, permitted the witness, Yentres, to state the prisoner’s confessions. Por this, defendant’s counsel excepted.

The prisoner’s counsel requested the Court to instruct the jury that the confessions of the prisoner ought to be received with caxrtion and distrust. The Court refused to give the instructions asked, but told the jury that confessions, like all the other evidence, in cases of this kind, were to be received with caution, and to-be carefully considered by the jury, in connection with- the- facts and circumstances under which they were made, and allowed to have such weight as they should think they ought to have, considered in this way. The defendant’s counsel excepted to this refusal to charge as asked.

Upon these and other instructions, not excepted to, the jury found the prisoner guilty of murder. Judgment was pronounced, and he- appealed to this Court.

Attorney (xen&i'al, for the State.

Rodman and Singletary, for the defendant.

Nash, C. J.

The prisoner was convicted of the murder of one Allen Green. By his counsel,’ the prisoner moved for a new trial, upon several grounds, which we will consider in their order.

First, that one of' the jurors of the panel was not a slave-owner. This objection, if taken at the proper time, would have been allowed. Rev. Code, ch. 107, sec. 34. The same section provides, that the Superior Courts shall have exclusive original jurisdiction of all felonies and other offences, committed by slaves, &c., “ and the trials shall be conducted in like manner as the trials of free men, for the same offences.” The slave stands at the bar, clothed with the same privileges that the white man enjoys, and the trial is conducted by the *447same rules. Every criminal, charged with a crime affecting his life, has a right to challenge a certain number of jurors, without assigning any cause, and as many more as he can assign a good cause for. In all legal proceedings there is an apt time for every step in the proceeding, and every objection or privilege must be made or claimed at the proper time, or the party making it will be considered as having waived it. Briggs v. Byrd, 12 Ire. Rep. 382. The time for a prisoner to make his challenge, is when the juror is tendered, and before the juror is sworn, or the oath is commenced. Joy on Jurors, 219. The right to be tried by the owner of slaves is a privilege accorded to the slave; but it is a privilege he may waive; and having failed to make his objection at the proper time, he comes too late after verdict. To enable the prisoner to make his challenges intelligently, the Clerk is required to road over the names of the jurors on the panel, in the presence and hearing of the defendants and their counsel, before the jury shall be empannelled to try the issue. Eev. Code, ch. 3o, sec. 32.

The second, exception cannot avail the prisoner. The same section of ch. 35, limits the right of peremptory challenge to twenty-three, when the prisoner is on trial for his life, whether bond or free.

The third exception is to the rejection of the declarations of the deceased man Green, as to his fears of Fornes. We cannot perceive upon what principle of law those declarations could have been received. The Court committed no error in rejecting them. State v. Duncan, 6 Ire. Rep. 236.

The fifth exception is to the refusal of the Court to give the instructions to the jury as prayed for. The presiding Judge refused to give the instructions “as asked.” He then gave the instructions which the law required him to give, substantially that which was asked. In this there was no error.

Thefourth exception is the important one. The admissions of a party against his interest, are considered as strong evidence, and are competent in general. In criminal cases, how-*448over, tliey must come from the accused voluntarily, and free from all fear or hope impressed upon him by others.

In this case, the witness Yen tres states, that the morning after the homicide he went to the place where the body was found, and discovered a plain track near by, a little way from the path. There was the print of a half-sole, with the distinct impression of the tacks all around. The morning after the prisoner was arrested, the witness, in whose custody he was, took him to the place -where the body was found, and, upon applying one of his boots to the track, it seemed to fit precisely ; when he observed to the prisoner, “ you might as well tell all about it, for 1 am satisfied.” Patrick denied it, and witness, being a little angry, said to him, “if you belonged to mo I would make-you tell.” The prisoner still denied it, and they went back to the house of the witness to get their breakfast. After breakfast the witness went to the house of Patrick’s wife, wrhere he was when prisoner asked him if he ever knew him to tell a lie. He answered, “ no, not about your work.” Patrick then said, “are you afraid to go with me.” lie said, “ no.” They walked out together, Patrick’s hands being tied, and when they came to a fence, a short distance off, witness stopped ; at the suggestion of the prisoner, they crossed the fence and sat down upon a log, when he made the confessions given in evidence.

Baron Eyre, in Rex v. Hearne, 4 Car. and Payne, 215, (19 E. C. L. Rep. 850,) observes, a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and, therefore, it is admitted as proof of the crime to which it refers; but a confession wrung from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape that no credit ought to be given to it. The material enquiry, therefore, always, in such cases, is, has the confession been obtained by the influence of hope or fear, applied by a third person to the prisoner’s mind ? This enquiry is, in its nature, preliminary, and is addressed to the Judge, who admits the confession to the jury, or not, as he may find it to have been drawn from *449the prisoner by these motives. Ilis Honor admitted the evidence in this case, and in so doing committed no error; no influence of hope or fear could have been impressed on the prisoner’s mind by the remarks of the witness, and no hope, that, by confession, he would better his position, but simply that by measuring the track with the boot of the prisoner, the witness was satisfied of his guilt, and that his confession would not add to his belief; confess or not, as you please, I am satisfied. This certainly held out to the prisoner no hope that, by confession, his situation would, in any respect, bo bettered. So, neither w'ero his fears excited that his sufferings would bo increased by not confessing. The expression used by the witness, “if you belonged to me I would make you tell,” carried with it the assurance that the witness would inflict no suffering upon him. Many cases are contained in our reports upon this rule of the criminal law; many of them irreconcilable with the principle announced by Baron Eyre, in the case cited, pressing the principle of exclusion too far, and applied when there could be no reason to believe that the inducement had any influence on the mind of the prisoner, and, thereby, occasioned the escape of many criminals. JPMUps on Ev. 424; Joy on Jurors, 21.

It seems now to be settled law upon this point, if the prisoner has made his own calculations of the advantages to be derived from confessing, and thereupon has confessed the crime, there is no reason to say it is not a voluntary confession. In order to exclude a confession, the motive of hope or fear must be directly applied by a third person, and must be sufficient, in the judgment of the Court, so far to overcome the mind of the prisoner as to render the confession unworthy of credit. Greenleaf on evidence, 279, N. 5. In the State v. Cowan, 7 Ire. Rep. 239, the words used by the magistrate were, “ unless you can account for the manner in which you became possessed of the watch, I shall be obliged to commit you to be tried for stealing it.” The Court held that these words did not amount to such a threat or influence as would prevent the introduction of the subsequent confession. Here *450the prisoner seems to have made his own calculations. He appealed to the witness as to his character for truth, invites him to take a walk with him, and then deliberately makes the confession.

There is no error in receiving them.

Per Curiam.

Judgment affirmed.