WALKER, J.
The master and mistress of the accused, their son, and several of the neighbors, were assembled in the house of the slave’s master. The purpose of the [565]*565assembly was to compare the size of the feet and shoes of tbe master’s slaves, with the measure of tracks which, as the evidence conduced to show, had been made by the perpetrator of the crime. The accused was called into the assembly, and the measure was applied to his shoes. There being a perfect correspondence between them, several of the assembly exclaimed, that they were the shoes of the person who made the tracks, and the accused was silent. "Was the exclamation, with the ensuing silence of the accused, admissible evidence ?
The implication of admissions from silence rests upon the idea of acquiescence. The maxim is,' “ gui tacet, con-sentiré videturand it never applies, unless an acquiescence in what is said can be presumed. Neither reason nor law will permit the presumption of acquiescence to be drawn from the silence, unless the circumstances were not only such as afforded the party an opportunity to act or speak, but such also as would properly and naturally call for some action or reply from men similarly situated. Fuller v. Dean, 31 Ala. 654; 1 Greenl. on Evidence, § 197; Gale v. Lincoln, 11 Vermont, 152; Mellen v. Andrews, 1 Moo. & Mal. 336. The exclamation was not addressed to the accused. It was made by white persons, in the presence of his master and mistress, and in a room of their house. It was rather an emotional expression, demanding no reply. Such an expression, made in such presence, by such persons, and in such a place, did not properly and naturally call for a reply from the accused slave. His social relation to his master and mistress, and to the other white persons present, forbidding the freedom of speech allowed among equals, and making a contradiction in most cases an insolence, rendered it unnatural, and, perhaps, improper, under the circumstances, for him to interpose a denial to the accusation implied in the expression which he heard. The habitude of thought and feeling, the consciousness of inferiority, and the subordination and discipline belonging to his condition, made it perfectly natural that he should be silent, because he did not feel authorized to speak, or from an apprehension that a contradiction would be deemed an impertinence. [566]*566The law prescribes that implication from silence must be drawn with great caution; 'and we should disregard that principle by holding the silence of the slave admissible as evidence from which an admission might be implied. We decide, therefore, that the court erred in the admission of the exclamation, and of the slave’s silence.
[2.] A short time after the offense was committed, the accused was severely punished. A day or two afterwards, and in January, 1857, being in prison, he confessed his guilt to the jailor. This confession was procured by promise of favor, and was properly excluded. A day or two after the confession, when the slave, being still in prison, was about to receive further punishment from the same person who had previously punished him, he repeated his confession. This confession was also properly excluded from the jury, (if for no other reason) because the influence previously exerted upon him had not been removed. In March, 1857, the slave was tried, the confessions above named were offered in evidence against the slave, and, after argument, were excluded; and there was a mistrial. In the following September, the confession was repeated by the accused, who was still in prison, to a different, person than those to whom the previous confessions had been made. This last confession was made, when the slave was accosted in rough language, and in the absence of ^ any assurance that a change of the statement previously made would not be punished, or that the confession would not enure to his benefit. Did the court err in the admission of that confession in evidence, on the trial in the spring of 1858 ?
The law is, that after a confession is once obtained by promise of favor, no subsequent confessions of like character are evidence, unless it is shown that the influence has been totally removed; and, in case of slaves, the clearest proof is exacted. — Clarissa v. The State, 11 Ala. 57; Wyatt v. The State, 25 Ala. 9; Brister v. The State, 27 Ala. 107; Van Buren v. The State, 24 Mis. Rep. 512; Peter v. The State, 4 Sm. & M. 31; State v. Guild, 5 Hals. 163; Whar. Am. Crim. Law, § 695.
The only evidence, conducing to show that the influ[567]*567ence by which, the first confession was obtained had been removed, is that the slave was, after making that confession, retained in prison, and that the very confession, which he was first induced to make, was offered in evidence against him. That the accused was kept in jail after confessing, was a fact calculated to remove the impression that he would be benefited by the confession. But, in this case, it must be remembered, that the inducement to the confession was, that his master would sell him, and he would not be hung. At what time the slave was induced to believe he would be sold and extricated from his impending peril, does not appear. It seems to have been left indefinite. "We cannot know what was the precise character of the hope and expectation generated in his mind, and that that hope and expectation did not continue to linger with him during the entire period of his imprisonment. When the slave had been assured by the jailor, who was his custodian, that it would be better for him to confess, and for his master to have his value in his pocket, than for him to have his neck broke, and his master have no money for him, who can say that an ignorant negro did not continue to indulge, throughout his imprisonment, the expectation that the time would yet come when the anticipation produced would be realized, and that he would not continue to indulge that expectation even to the gallows, unless he was informed that he had been deceived ?
The offer of the confessions in evidence, in his presence, would have been sufficient to have removed the impression from the mind of a white man, accustomed to, and understanding the proceedings upon a criminal trial. It might reasonably be presumed, that he would understand that his eon Action and execution were sought upon the very confessions which he had been induced to believe would save him, and that he would thus be fully convinced of the impossibility of his receiving a benefit from making confessions. But we cannot affirm the same thing of a slave. An ignorant slave, knowing nothing of judicial proceedings, perhaps not even understanding the nature of the duties discharged by the different persons engaged [568]*568in bis trial, and confused by tbe unaccustomed presence into which he was brought, and by the scenes transpiring around him, might witness an offer of testimony against him, and hear an argument upon its admissibility, without knowing that the testimony was really offered to procure his conviction. In the absence of any evidence showing that he understood that the very confessions, which he made from the expectation of favor, were offered and pressed as the means of his conviction and consequent execution, it would be difficult to decide that the impression had been totally removed.
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WALKER, J.
The master and mistress of the accused, their son, and several of the neighbors, were assembled in the house of the slave’s master. The purpose of the [565]*565assembly was to compare the size of the feet and shoes of tbe master’s slaves, with the measure of tracks which, as the evidence conduced to show, had been made by the perpetrator of the crime. The accused was called into the assembly, and the measure was applied to his shoes. There being a perfect correspondence between them, several of the assembly exclaimed, that they were the shoes of the person who made the tracks, and the accused was silent. "Was the exclamation, with the ensuing silence of the accused, admissible evidence ?
The implication of admissions from silence rests upon the idea of acquiescence. The maxim is,' “ gui tacet, con-sentiré videturand it never applies, unless an acquiescence in what is said can be presumed. Neither reason nor law will permit the presumption of acquiescence to be drawn from the silence, unless the circumstances were not only such as afforded the party an opportunity to act or speak, but such also as would properly and naturally call for some action or reply from men similarly situated. Fuller v. Dean, 31 Ala. 654; 1 Greenl. on Evidence, § 197; Gale v. Lincoln, 11 Vermont, 152; Mellen v. Andrews, 1 Moo. & Mal. 336. The exclamation was not addressed to the accused. It was made by white persons, in the presence of his master and mistress, and in a room of their house. It was rather an emotional expression, demanding no reply. Such an expression, made in such presence, by such persons, and in such a place, did not properly and naturally call for a reply from the accused slave. His social relation to his master and mistress, and to the other white persons present, forbidding the freedom of speech allowed among equals, and making a contradiction in most cases an insolence, rendered it unnatural, and, perhaps, improper, under the circumstances, for him to interpose a denial to the accusation implied in the expression which he heard. The habitude of thought and feeling, the consciousness of inferiority, and the subordination and discipline belonging to his condition, made it perfectly natural that he should be silent, because he did not feel authorized to speak, or from an apprehension that a contradiction would be deemed an impertinence. [566]*566The law prescribes that implication from silence must be drawn with great caution; 'and we should disregard that principle by holding the silence of the slave admissible as evidence from which an admission might be implied. We decide, therefore, that the court erred in the admission of the exclamation, and of the slave’s silence.
[2.] A short time after the offense was committed, the accused was severely punished. A day or two afterwards, and in January, 1857, being in prison, he confessed his guilt to the jailor. This confession was procured by promise of favor, and was properly excluded. A day or two after the confession, when the slave, being still in prison, was about to receive further punishment from the same person who had previously punished him, he repeated his confession. This confession was also properly excluded from the jury, (if for no other reason) because the influence previously exerted upon him had not been removed. In March, 1857, the slave was tried, the confessions above named were offered in evidence against the slave, and, after argument, were excluded; and there was a mistrial. In the following September, the confession was repeated by the accused, who was still in prison, to a different, person than those to whom the previous confessions had been made. This last confession was made, when the slave was accosted in rough language, and in the absence of ^ any assurance that a change of the statement previously made would not be punished, or that the confession would not enure to his benefit. Did the court err in the admission of that confession in evidence, on the trial in the spring of 1858 ?
The law is, that after a confession is once obtained by promise of favor, no subsequent confessions of like character are evidence, unless it is shown that the influence has been totally removed; and, in case of slaves, the clearest proof is exacted. — Clarissa v. The State, 11 Ala. 57; Wyatt v. The State, 25 Ala. 9; Brister v. The State, 27 Ala. 107; Van Buren v. The State, 24 Mis. Rep. 512; Peter v. The State, 4 Sm. & M. 31; State v. Guild, 5 Hals. 163; Whar. Am. Crim. Law, § 695.
The only evidence, conducing to show that the influ[567]*567ence by which, the first confession was obtained had been removed, is that the slave was, after making that confession, retained in prison, and that the very confession, which he was first induced to make, was offered in evidence against him. That the accused was kept in jail after confessing, was a fact calculated to remove the impression that he would be benefited by the confession. But, in this case, it must be remembered, that the inducement to the confession was, that his master would sell him, and he would not be hung. At what time the slave was induced to believe he would be sold and extricated from his impending peril, does not appear. It seems to have been left indefinite. "We cannot know what was the precise character of the hope and expectation generated in his mind, and that that hope and expectation did not continue to linger with him during the entire period of his imprisonment. When the slave had been assured by the jailor, who was his custodian, that it would be better for him to confess, and for his master to have his value in his pocket, than for him to have his neck broke, and his master have no money for him, who can say that an ignorant negro did not continue to indulge, throughout his imprisonment, the expectation that the time would yet come when the anticipation produced would be realized, and that he would not continue to indulge that expectation even to the gallows, unless he was informed that he had been deceived ?
The offer of the confessions in evidence, in his presence, would have been sufficient to have removed the impression from the mind of a white man, accustomed to, and understanding the proceedings upon a criminal trial. It might reasonably be presumed, that he would understand that his eon Action and execution were sought upon the very confessions which he had been induced to believe would save him, and that he would thus be fully convinced of the impossibility of his receiving a benefit from making confessions. But we cannot affirm the same thing of a slave. An ignorant slave, knowing nothing of judicial proceedings, perhaps not even understanding the nature of the duties discharged by the different persons engaged [568]*568in bis trial, and confused by tbe unaccustomed presence into which he was brought, and by the scenes transpiring around him, might witness an offer of testimony against him, and hear an argument upon its admissibility, without knowing that the testimony was really offered to procure his conviction. In the absence of any evidence showing that he understood that the very confessions, which he made from the expectation of favor, were offered and pressed as the means of his conviction and consequent execution, it would be difficult to decide that the impression had been totally removed.
There is another consideration affecting the question, whether the impression can be regarded as totally removed; that is, that a slave, who has once made a confession from the prospect of favor, may persist in the same statement, lest he might be punished for the change of his statements. This consideration is set forth in the previous decisions of this court, as a sufficient reason for the use of more caution in the admission of a slave’s than of a freeman’s subsequent confessions. Guided by all the reasons which we have given, we decide, that the court erred in the admission of the confessions upon the facts stated in the bill of exceptions.
[3.] The part of the conversation which the witness heard does not appear to have been in itself incomplete; and if further conversation on the same subject, favorable to the defendant, was had after the witness left, it was for the accused to have proved it. — Frank v. The State, 27 Ala. 37.
[4.] Whether the confessions were made through fear, or from the promise of favor, was a question affecting the admissibility of the testimony, and was for the court. If it should be discovered, at any time during the trial, that the confessions had been made under circumstances which rendered them inadmissible, it would be the duty of the court to exclude them. The charge asked by the defendant would have referred this question to the jury, and was, therefore, properly refused. It should be left to the jury to determine the weight and credence to which the testimony is entitled.
[569]*569There is no other question in the case, which it is necessary for the guidance of the circuit court that we should decide.
The judgment of the court below is reversed, and the cause remanded.