BRICKELL, C. J.
The conversation between the prisoner and the witness Slaughter, had reference to the burning of the gin-house, and it was the prisoner who directed it to that subject. Any.indications of a consciousness of guilt by a person suspected of or charged with crime, or who may after such indications be suspected or charged, are admissible evidence against him. The number of such indications it is impossible to limit, nor can their nature or character be defined. Presumptions or inferences may be, and often are, founded on circumstances which, of themselves, independent of the accusation, would not be ground of crimination. It is largely a question of fact, rather than a question of law, for the determination of the jury, whether particular conduct, or particular expressions of the accused, refer to a criminal offense, and spring from his consciousness of guilt. "When it is clear that they have no relation to the offense, and that they ought not to have any influence with the jury, it is the duty of the [160]*160court to reject them as evidence. But however minute or insignificant they may be, shedding but a dim light upon the transaction, if they have a tendency to elucidate it they must be admitted. They may be connected with other circumstances which will constitute a chain of evidence, leading the mind to a satisfactory conclusion. — Johnson v. State, 17 Ala. 624; Campbell v. State, 23 Ala. 45; Liles v. State, 30 Ala. 24. Standing alone, it may be the conversation between the prisoner and Slaughter would be insignificant, and entitled to no weight in determining the guilt of the accused; but it may become important, and may lead to the conclusion of guilt, if it is shown that he had a motive and opportunity to commit the crime, and that thei'e are other inculpatory facts. The prisoner had, however, as his counsel argues, the right to evidence of all that was said by him in the course of the conversation. The rule applies, that when the declarations of a party are offered in evidence against him, he has the right to lay before the jury all that he said at the time, in relation to the same subject. Otherwise, it Avould be impossible to ascertain their real import, and injustice might be done, by the suppression or withholding of parts of the conversation, which would qualify or explain those proved. It is the exclusion of fragments of a conversation, or of declarations, the rule requires. Here the witness stated all the conversation he heard and that he did not hear, supposing it had reference to the same subject, he could not repeat. The rule, we think, was satisfied. If a reply was made by the prisoner to the last remark of the witness, there were persons present, having opportunities of hearing it, by whom he could have proved it, if material. — Covington v. State, 2 Bailey, 569; Bob v. State, 32 Ala. 560.
"Verbal admissions in a civil cause, and mere oral confessions in a criminal cause, are received with great caution. There are many infirmative considerations attending them, to which the minds of the jury should be drawn in weighing them. They are easy of fabrication, and the detection and exposure of' their falsity is oVten difficult. Where there is no reason to suspect fabrication, much depends on the circumstances surrounding the party, the capacity of the witness, the degree of attention given by him when they were made, the clearness of his understanding of them, and the accuracy of his memory. When, as observed by Prof. Green-leaf, they are deliberately made and precisely iclentified, they are often evidence of the most satisfactory nature. When not a direct confession of a prisoner, but his conduct, demeanor, or expressions, are to be used as indications of [161]*161conscious guilt — when their importance and weight depends wholly on their combination with other inculpatory facts, the court should carefully instruct the jury as to the caution with which they should be received, and that it is their connection with other facts to which they owe whatever of value should be attached. Terror, or alarm, when charged with or arrested for a crime, or manifested when the crime is mentioned, is a fact which may be proved, as may be flight, or the concealment of evidence. But if either of these facts stood alone, disassociated from any and all other criminating evidence, the court could not, as matter of law, announce to the jury that it was a fact having a tendency to prove the guilt of the accused. Of that tendency it is deprived, and it sinks into insignificance, when there are no other criminating facts. The conversation with Slaughter, if there was a want of other criminating facts, stands upon the same ground— whatever of value may be justly attached to it, is derived from its combination with the other facts. The court was in error, in singling it out, separating it from the other facts, and announcing to the jury that they could look to it alone as tending to show the guilt of the prisoner. The fact would not be shorn of its just strength, if the court had instructed the jury as to all the infirmative considerations attending it, the caution with which it shall be received, and that its value depended on their being satisfied of its truth, and the truth of the other inculpatory facts.
It is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense. It may spring from the lust of gain, or the gratification of an unlawful passion. — Burrill on Oir. Ev. 285. Now the confession of the prisoner, independent of any inference which may be drawn from the evidence of Slaughter, indicates that he was moved to commit the offense because of his hostility to Matthews. It was then permissible to show that Matthews had cotton in the gin-house. The destruction of the cotton, inflicting loss on Matthews, may have ministered to the gratification of the prisoner’s revengeful feelings towards him. There was no error in the admission of the evidence. The instruction to the jury in reference to it, is subject to the objections stated to the preceding charge.
Confessions of guilt can not be received as evidence, unless they appear to have been voluntary. Whether they are voluntary, it is the duty of the court to determine, after a careful consideration of the age, situation and character of the accused, and the circumstances under which they are made. When all these are considered, if it satisfactorily appears [162]*162that they spring from the volition of the accused, and there is an absence of evidence that any person had exerted an influence to induce them,'it is not necessary, the witness proving them should be inquired of, whether lie or any other person had told the prisoner it would be. better for him to confess, or worse if he did not. — 1 Green. Ev. § 219 ; Levison v. State, 54 Ala. 520. The confession of itself, taken in connection with the circumstances under which it was made, may bear the best evidence of its freedom from all improper appliances to the mind of the prisoner. The usual preliminary questions were in this instance propounded to the witness, and answered negatively; and when all the circumstances are considered, it is impossible to doubt that the confession was voluntary. Nor was its admissibility affected, because if a confession had been made to McAdory, when he exhorted the prisoner to confess, it would have been inadmissible. The rule is, that when a confession has been obtained by improper influences, subsequent confessions, while such influences continue, are inadmissible.
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BRICKELL, C. J.
The conversation between the prisoner and the witness Slaughter, had reference to the burning of the gin-house, and it was the prisoner who directed it to that subject. Any.indications of a consciousness of guilt by a person suspected of or charged with crime, or who may after such indications be suspected or charged, are admissible evidence against him. The number of such indications it is impossible to limit, nor can their nature or character be defined. Presumptions or inferences may be, and often are, founded on circumstances which, of themselves, independent of the accusation, would not be ground of crimination. It is largely a question of fact, rather than a question of law, for the determination of the jury, whether particular conduct, or particular expressions of the accused, refer to a criminal offense, and spring from his consciousness of guilt. "When it is clear that they have no relation to the offense, and that they ought not to have any influence with the jury, it is the duty of the [160]*160court to reject them as evidence. But however minute or insignificant they may be, shedding but a dim light upon the transaction, if they have a tendency to elucidate it they must be admitted. They may be connected with other circumstances which will constitute a chain of evidence, leading the mind to a satisfactory conclusion. — Johnson v. State, 17 Ala. 624; Campbell v. State, 23 Ala. 45; Liles v. State, 30 Ala. 24. Standing alone, it may be the conversation between the prisoner and Slaughter would be insignificant, and entitled to no weight in determining the guilt of the accused; but it may become important, and may lead to the conclusion of guilt, if it is shown that he had a motive and opportunity to commit the crime, and that thei'e are other inculpatory facts. The prisoner had, however, as his counsel argues, the right to evidence of all that was said by him in the course of the conversation. The rule applies, that when the declarations of a party are offered in evidence against him, he has the right to lay before the jury all that he said at the time, in relation to the same subject. Otherwise, it Avould be impossible to ascertain their real import, and injustice might be done, by the suppression or withholding of parts of the conversation, which would qualify or explain those proved. It is the exclusion of fragments of a conversation, or of declarations, the rule requires. Here the witness stated all the conversation he heard and that he did not hear, supposing it had reference to the same subject, he could not repeat. The rule, we think, was satisfied. If a reply was made by the prisoner to the last remark of the witness, there were persons present, having opportunities of hearing it, by whom he could have proved it, if material. — Covington v. State, 2 Bailey, 569; Bob v. State, 32 Ala. 560.
"Verbal admissions in a civil cause, and mere oral confessions in a criminal cause, are received with great caution. There are many infirmative considerations attending them, to which the minds of the jury should be drawn in weighing them. They are easy of fabrication, and the detection and exposure of' their falsity is oVten difficult. Where there is no reason to suspect fabrication, much depends on the circumstances surrounding the party, the capacity of the witness, the degree of attention given by him when they were made, the clearness of his understanding of them, and the accuracy of his memory. When, as observed by Prof. Green-leaf, they are deliberately made and precisely iclentified, they are often evidence of the most satisfactory nature. When not a direct confession of a prisoner, but his conduct, demeanor, or expressions, are to be used as indications of [161]*161conscious guilt — when their importance and weight depends wholly on their combination with other inculpatory facts, the court should carefully instruct the jury as to the caution with which they should be received, and that it is their connection with other facts to which they owe whatever of value should be attached. Terror, or alarm, when charged with or arrested for a crime, or manifested when the crime is mentioned, is a fact which may be proved, as may be flight, or the concealment of evidence. But if either of these facts stood alone, disassociated from any and all other criminating evidence, the court could not, as matter of law, announce to the jury that it was a fact having a tendency to prove the guilt of the accused. Of that tendency it is deprived, and it sinks into insignificance, when there are no other criminating facts. The conversation with Slaughter, if there was a want of other criminating facts, stands upon the same ground— whatever of value may be justly attached to it, is derived from its combination with the other facts. The court was in error, in singling it out, separating it from the other facts, and announcing to the jury that they could look to it alone as tending to show the guilt of the prisoner. The fact would not be shorn of its just strength, if the court had instructed the jury as to all the infirmative considerations attending it, the caution with which it shall be received, and that its value depended on their being satisfied of its truth, and the truth of the other inculpatory facts.
It is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense. It may spring from the lust of gain, or the gratification of an unlawful passion. — Burrill on Oir. Ev. 285. Now the confession of the prisoner, independent of any inference which may be drawn from the evidence of Slaughter, indicates that he was moved to commit the offense because of his hostility to Matthews. It was then permissible to show that Matthews had cotton in the gin-house. The destruction of the cotton, inflicting loss on Matthews, may have ministered to the gratification of the prisoner’s revengeful feelings towards him. There was no error in the admission of the evidence. The instruction to the jury in reference to it, is subject to the objections stated to the preceding charge.
Confessions of guilt can not be received as evidence, unless they appear to have been voluntary. Whether they are voluntary, it is the duty of the court to determine, after a careful consideration of the age, situation and character of the accused, and the circumstances under which they are made. When all these are considered, if it satisfactorily appears [162]*162that they spring from the volition of the accused, and there is an absence of evidence that any person had exerted an influence to induce them,'it is not necessary, the witness proving them should be inquired of, whether lie or any other person had told the prisoner it would be. better for him to confess, or worse if he did not. — 1 Green. Ev. § 219 ; Levison v. State, 54 Ala. 520. The confession of itself, taken in connection with the circumstances under which it was made, may bear the best evidence of its freedom from all improper appliances to the mind of the prisoner. The usual preliminary questions were in this instance propounded to the witness, and answered negatively; and when all the circumstances are considered, it is impossible to doubt that the confession was voluntary. Nor was its admissibility affected, because if a confession had been made to McAdory, when he exhorted the prisoner to confess, it would have been inadmissible. The rule is, that when a confession has been obtained by improper influences, subsequent confessions, while such influences continue, are inadmissible. It is not, that when one person applies such influences, and they are unavailing, confessions made subsequently to other persons, will be presumed to have been induced by them. — Levison v. State, supra.
“ The presumption,” says Mr. Starkie, “ that a man will do that which tends to his obvious advantage, if he possesses the means, supplies a most important test for judging of the comparative weight of evidence. It is to be weighed according to the proof which it was in the power of one party to have produced, and in the power of the other to have contradicted.” — 1 Stark. Ev. 846. Hence, when in a civil case, the party against whom'a claim is preferred, has evidence which would repel that offered to support the claim if it,is unfounded, his failure to produce it creates a presumption against him, and in favor of his adversary. And when a prisoner declines to produce evidence within his reach which would explain or contradict the criminating evidence against him, it is a fact of importance, and may “give a conclusive character to circumstances which would otherwise be of an imperfect and inconclusive nature.” We are not prepared to say, that the facts of this case, rendered an argument by the counsel for the State, that a presumption unfavorable to the prisoner could be drawn from his failure to produce evidence in explanation or contradiction of the evidence against him, impertinent or irrelevant. The circuit court seems to have considered such argument legitimate, and we would not be inclined to disturb its rulings on a .matter of this kind, unless they were shown clearly to be erroneous. [163]*163We remark, however, that counsel should not be permitted to comment upon facts not proved before the jury as true, and not legally competent and admissible as evidence. However reluctant an appellate court may be to interfere with the discretion of a primary court in regulating the trial of causes, if it should appear that it had refused, to the prejudice of a party, to compel counsel to confine their arguments and comments to the jury, to the law and evidence of the case under consideration — if it had permitted them to refer to and comment upon facts not in evidence, or which would not be admissible as evidence, it would be a fatal error.— Tucker v. Henniker, 41 N. H. 317; Berry v. State, 10 Ga. 511; Mitchum v. State, 11 Ib. 628.
The third charge requested by the prisoner, is rather involved. We construe it, however, as asserting the general principle, that when the declarations of a party are offered in evidence, the whole must be taken together, as well that which is favorable as that which may be regarded as injurious. The jury are not bound, and the charge does not instruct them that they are bound to give credence to each and every part of the declaration. They may, for satisfactory reasons, reject a part and credit another. Still, it is right that the whole declaration shall be laid before them, and while they can not arbitrarily or capriciously receive or reject any part, after a deliberate consideration of all the circumstances under which it was made, of the motive of the party, of its consistency with any other evidence in the cause, they must determine how far it is entitled to credit. — Corbett v. State, 31 Ala. 329; Levy v. State, 49 Ala. 390. The charge asserts further, if the jury believed the declaration of the prisoner, that he was sick, and not able to reach the gin-house while burning, any unfavorable inference which could be drawn against him because'of his absence would be removed. If this is the proper construction of the charge, its correctness follows from the decision, when this cause was before us at a former term.
The fifth charge requested, should have been given, under the authority of Mose v. State, 36 Ala. 211; Joe v. State, 38 Ala. 422.
For the errors noticed, the judgment must be reversed and the cause remanded, the prisoner remaining in custody until discharged by due course of law.