Williams, Ch. J.
This is a motion for a new trial, in a capital case, upon the ground that the defendant has been deprived of his legal rights in respect to those who were to constitute the jury ; and that his confessions have been improperly admitted.
The former objection is founded upon the admission of a juror, who, he claims, ought not to have been allowed to sit, on account of previous opinions; and that he was not allowed a peremptory challenge, at the time he chose to take it.
As to the former, the juror had read newspaper accounts in relation to the supposed murder, purporting to be the confession of the prisoner, that he, and he alone, had committed the murder, and stating the manner; and upon reading them, he was of opinion, that if they were true, a horrid murder had been committed; but he had formed no opinion as to their truth, and remarked, while reading them, that on the trial, the case would probably turn out to be a very different affair. When called upon, he declared, that he had no settled opinion upon the subject, and felt that he could render an impartial verdict. The court held, that he was an indifferent juror; and we are called upon to review that opinion.
[171] All agree in the value of trial by jury, in criminal cases, especially in cases where life is at stake; and all will agree,that this jury should be indifferent and impartial; that they should be men whose minds are open to impressions which the facts and law in the case ought to make, so that there should be no combat with preconceived opinions in regard to the case.
By this, however, we do not understand, that where the facts are such as to leave no doubt as to the nature of the crime, if committed, an opinion that such acts, if done, constituted that crime, would disqualify a juror. That would be to say, that those were the most fit jurors, who did not distinguish the nature of actions. For instance, a house is broken open in the night season, and plundered ; the thief is for a time unknown ; when taken and brought to trial, it could not render a juror, a biased juror, that he had said and believed, that a burglary had been committed in that house, if those facts were true. Partiality is by law presumed from nearness of kindred ; from being in the power of the party, as if counsel, or servant, or tenant; from having been an arbitrator; from having declared an opinion, or having given a verdict in a former trial, or having been on a divided jury. Such facts carry with them prima facie evident marks of suspicion either of malice or favour, and the court is bound to set such a juror aside. Challenges to the favour are when there are only probable circumstances of suspicion. 3 Bla. Com. 363.
These are, by the common law, to be judged by triers designated by the court; and it is to be left to the conscience and discretion of those triers, upon hearing the evidence, whether the juror be indifferent or not. The challenge, therefore, for a principal cause, is a conclusion of law; to the favour, is a matter of fact for the triers.
By our practice, however, the court decide in both cases; and therefore, where they have come to an incorrect conclusion, especially in a case of this nature, it may be a subject of review. Where the fact is ascertained by triers, — the opinion of the court as to what is proper evidence to go to the jury, may be reviewed, as in other cases — such as Polly Bodine’s case, 1 Denio 281. In that case, the court decided, rather what evidence should be admitted, than what weight should be given to it. In this case, the juror had expressed no [172] opinion whatever, except that the facts would probably turn -out very differently from the newspaper account; which certainly creates no suspicion of bias; but on the contrary, shows a mind prepared to hear, and expecting to hear, further, before forming an opinion. If therefore, the law is as has been held by great authorities, that an opinion must not only have been formed, but expressed, to disqualify the juror, this case would not be within it. Callenders case, 1 Burr’s Trial 418. Boardman v. Wood, 3 Verm. 570. Other authorities there are, which hold, that the having formed an opinion upon the case, is a sufficient objection. The United States v. Wilson, Bald. 78. The State Godfrey, Brayt. 170. Blake v. Millspaugh, 1 Johns. R. 316. Ex parte Vermilyea, 6 Cowen 555. 564. The People v. Vermilyea, 7 Cowen 108. The Commonwealth v. Knapp, 9 Pick. 496. 499. The People v. Mather, 4 Wend. 230. 1 Sw. Dig. 737. And we certainly are not prepared to say, that an opinion formed upon the case, or an essential part of the case, such as it would require evidence to remove, would not disqualify a juror.
But we do not find it necessary to discuss or to settle that question, because we do not find any opinion, either formed or expressed, which shows a want of indifference in the juror. It is perfectly evident, that he had no opinion upon the case itself; but he did think, if the facts were as stated in the prisoner’s confession, a horrid murder had been committed. This is a mere hypothetical opinion, as in Durell v. Mosher, 8 Johns. R. 445. The question, it is to be borne in mind, is a question of indifference in the juror. In looking at that point, we are to see whether the juror has formed any opinion, which shows he is not indifferent in this case. The juror having declared an opinion before-hand, that the party is guilty, or will be hanged, or the like, is a ground of challenge. 3 Bac. Abr. 756. tit. Juries. E. 5. (Gwil. ed.) Yet it hath been adjudged, that if such declaration was made from his knowledge of the case, and not out of any ill will to the party, it is no cause of challenge. 2 Hawk. P. C. ch. 43. sect. 28. The opinion expressed, therefore, must be such as indicates hostility, or a want of indifference, in the juror. Ld. Ch. J. Abbott, in a recent case, speaking of such opinions, says: “ It does not appear distinctly, in what precise form the question was propounded ; but in order to make the answer available for any [173] purpose, if it could have been received, it must have been calculated to show an expression of hostility to the defendants, - or some of them, — a preconceived opinion of their personal guilt, or a determination to find them guilty; any thing short of this would have been irrelevant.” The King v. Edmonds, 4 B. & Ald. 471. (6 E. C. L. 492. 502.) And upon a review of the ancient authorities, the Chief Justice said, that “ expressions used by a juryman are not cause of challenge, unless they are to be referred to something of ill will towards the party challenging.” 6 E. C. L. 503. Then it must follow, that an opinion upon a matter of law merely, could not be a cause of challenge, unless it was so gross as to be evidence of partiality. The same learned judge also says, “ a knowledge of certain facts, and an opinion that these facts constitute a crime, are certainly no ground of challenge ; for it is clearly settled, that a juryman cannot be challenged, by reason of his having pronounced a verdict of guilty against another person charged in the same indictment.” 6 E. C. L. 502. And it has been decided in our own courts, that an opinion on a general principle of law, will not disqualify a juror. Pettis v. Warren, Kirby 427. In the case before us, the juryman gave no opinion upon the facts as stated, but supposed they would, on the trial, turn out very differently from the newspaper accounts; but he did say, if they were true, a horrid murder had been committed. And is there a man in this community, who could have come to a different result upon these facts ? Is it any evidence of hostility or prejudice against the prisoner to believe and declare, that if he killed a friend without provocation, for his money or his watch, it was a horrid murder Í How does this claim comport with the doctrine of Ch. J. Abbott, that an opinion that certain facts constitute a crime, is no ground of challenge ? Reverse the case, and suppose that the prisoner had stated in the newspapers, that he was attacked by the deceased, with a deadly weapon, and that he, to prevent the blow, knocked the assailant down with a cane he had in his hand; and the juryman having read that, formed his opinion that he was justified, if his statement was true; would he not be an indifferent juror ? Does it show ill-will to the public or favour to the prisoner ?
As causes of this kind must depend much on their own circumstances, it is not to be expected, that we shall find [174] cases exactly similar; but some have been decided in our sister states, where stronger objections have been overruled— as an opinion formed and expressed, founded on common report, when the juror believes it would not affect his verdict, should the evidence be different. The State v. Williams, 3 Stewart 454. So where a juror admitted he had expressed an opinion on the circumstances, as he had heard them narrated in the country, but had not heard any of the evidence on the examination of the prisoner, or conversed with the witnesses or parties, and did not think the opinion so formed would inlluence his mind in trying the cause, he was held indifferent. Brown's case, 2 Leigh 769. So in another case, where the jury had heard the relation of the principal, and said, if these things are true, he believed the prisoners guilty, but declared he felt no prejudice, and, if the facts did not turn out so, he was ready to change his opinion, he was allowed to sit. Sprouce v. Commonwealth, 2 Vir. Cas. 375. We allude to these cases, rather to show how far courts have gone, than as precedents.
The case of one of the jurors on Burr’s trial so much resembles this, that it is worthy of particular notice. Hamilton Morrison admitted, that he had frequently thought and declared, that Col. Burr was guilty, if the statements he heard were true; that he did not know whether they were so, but only thought from the great clamor which had been made, that it might be possible they were true ; that he had not expressed any positive opinion, nor was he certain that he had always qualified it, by saying “ if these things are true that he did not recollect having said, that Col. Burr ought to be hung, without stating, at the same time, “ if he were guilty.” The case was suspended, and on the next day, another examination was had, in which nothing material transpired, unless his declaration in answer to Col. Burr’s question, that he had no prejudice for or against him; when he was admitted as a proper juror. 1 Burr’s Trial, 371. 383. “ Light impressions,” says the great Judge who presided on that trial, “ which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror.” 1 Burr’s T. 410. Where a juror has a settled opinion in the case, and has declared it, he ought not to sit. But [175] where it is a mere impression, arising from facts supposed to exist, of the truth of which he has formed no opinion, or^ where the opinion is upon a point so free from doubt, as to lay no foundation for a dispute, there can be no ground to infer hostility or prejudice, and so the juror must be considered indifferent. To exclude persons on such grounds would be to adopt a rule not known to the common law ; and, in cases of great notoriety, would be to say, that there should be no trial at all by jury, or that the trial should be by persons the least fitted by their situation and intelligence to do justice to the cause they were called to determine. We are clearly of opinion, that this juror was competent to sit on this trial.
2 Again, it is said, the prisoner has been deprived of a right to a peremptory challenge, wrhich he was entitled to.
It is not denied, that time and opportunity were given to the prisoner to challenge a juror; but it is claimed, that he had not all the time the law allows him. Dickerman, a talesman, had been examined, and there was no cause of challenge known against him. The court then told the counsel, if they intended a peremptory challenge, they must make it, at that time. They had then a reasonable opportunity to make their challenge ; but they claim they may make it at their own time» provided it is done before the jurors are sworn. The statute, it is said, gives them power to challenge peremptorily twenty jurors summoned and empanelled, — and much criticism has been had upon the word “ empanelled.” It is claimed, that it means the jury sworn to try the cause; and that until sworn, they are not empanelled.
That they form a jury, when thus empanelled, is true; but that they are not empanelled until sworn, is not true. On the other hand, we learn from high authority, that a jury are said to be empanelled, when the sheriff has entered their names into the panel — a little piece of parchment. Co. Litt. 158. b.
The statute of 3 Geo. II. says, a sheriff shall not return a separate panel for every separate cause, — but one and the same panel for every cause. 3 Bla. C. 358. And we can hardly open a book upon the subject but it speaks of the panel returned by the sheriff. 4 M. & Sel. 467.
A prisoner has, by statute, a right to a copy of the panel, in certain cases, before the time of trial. 3 Bac. Ab. 742. tit. Juries. B. 8. (Guil. ed.) If it applied only to jurors sworn, [176] then it would imply that jurors might be challenged after they were sworn, which is not claimed.
But it is said, the clerk informs the prisoner, that if he would challenge them, or any of them, before they are swrorn, he shall be heard. This certainly is the form. We understand it to mean, that his challenges must be made before the jurors are sworn; but we do not suppose, that the prisoner is therefore to direct at what time before they are sworn this shall be done. He is called upon then to make his challenges ; and when he has had a fair opportunity to do this, he has had the privilege the statute confers upon him.
He has a right to plead, to examine witnesses, to be heard by counsel; but the court direct the time when he shall plead, when his witnesses shall be heard, and the order in which his counsel shall speak. The prisoner may think it would be better for him that his counsel should have the closing argument, particularly in cases where he assumes the burden of proof, as in cases of insanity ; and we see not why he may not as well claim to exercise his rights in his own time, in that case, as in this. The order of time and manner of proceeding on all such subjects must of course be under the direction of the court, unless the statute prescribes otherwise. To make the statute what it is claimed it should read, the accused may challenge peremptorily twenty jurors returned and empanell-ed, at any time before they are sworn.
But it is said, that by the English practice, the party has a right to challenge until the juror is sworn. There, each juror is sworn, as soon as he has been examined and opportunity given for challenges. By our practice, the jurors are none of them sworn until all have been examined, and opportunity offered for challenge. Here, when one has been examined and opportunity to challenge given, he is directed to take his seat as a juror, just as in England after he has been sworn; and the delay in swearing him, is not to give any privilege to the prisoner, which he could not claim elsewhere, but to prevent multiplying oaths, and to save the delay incident to the administration of the oath twelve times, instead of once. The prisoner now claims, as matter of right to himself, a privilege which he could have no pretence to claim after the person challenged had been declared a juror, by the English practice ; — and if the principle claimed here, by the prisoner, [177] is correct, that he must be allowed this privilege to the last moment before the trial commences, the practice is wrong then, which deprives him of this privilege, by swearing each juror before he has had full opportunity to make his challenge.
The effect of the practice, in both cases, is the same. In the one case, his opportunity is closed when the juror is sworn ; in the other case, when he is directed to take his seat.
Our practice gives one advantage to the prisoner, that if any thing new has occurred, since the juror was directed to take his seat as juror, the party will not be absolutely precluded from taking the benefit of it, as he is in England after he is sworn, unless by consent. TyndaPs case, Cro. Car. 291, 2. And for that reason, the court, (when a motion was made to challenge the juror soon after the notice given,) enquired of the counsel, whether any thing had occurred since the notice given by the court which called for the exercise of this right, to which it was answered, there had not; which it appears, that the sole question is, whether the court or the prisoner shall direct as to the time of challenge, before the jury are sworn. For if the prisoner has this right, it must be conceded, that the reason which prompts him to the exercise of it, is not to be enquired into.
If, on the other hand, he has not the right, then it is apparent, that the court, out of humanity to the prisoner, were disposed to listen to any reason which called for a dispensation of the rule they had established, as they were not precluded entirely, by administering the oath, as would have been the case in England. As no such cause existed, they saw no reason to rescind the rule they had made, conformable to our practice, of wdiich they had given notice, merely that ir 3 party should not claim to be surprised thereby.
It being a case in which life was concerned, the court were willing to find cause to relieve against the operation of a good rule, if it was like to prejudice the party ; but they did not intend thereby to weaken its effect, by yielding it upon a claim of right. And no case has been brought in support of this claim, except one from Ohio. Hooker v. State of Ohio, 4 Ohio R. 348. Upon looking at that case, we find that the court below had decided, that they would allow no challenge for cause, until the prisoner had made all his peremptory challenges. This judgment was very properly reversed, by the [178] superior court, conformably to our constant practice, as well as to well settled principles.
In giving their reasons, the court remark, that this right of peremptory challenge should be kept open to the latest possible period, to wit, up to the actual swearing of the jury: in other words, that in this respect, they follow the English practice, which we have shown is substantially followed here.
3. The next question is, whether the evidence of the confessions of the prisoner was properly admitted.
The time was, and perhaps in some places still may be, when confessions of guilt were extorted, by the dungeon and the rack. But by the law under which we live, a confession produced by the impressions of hope or the torture of fear, is not admissible in evidence. 1 McNally’s Evid. 42. While, on the other hand, a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. Leach’s C. L. 248. 1 Greenl. Ev. 254.
The enquiry, therefore, is addressed to the discretion of the court, whether considering the age, situation and character of the prisoner, and the circumstances under which the disclosure was made, it was voluntary or not; and where so much depends upon the discretion of the judge, it is difficult to lay down precise rules.
‡ Some points, however, are settled. One is, that when the disclosure is the result cf inducements held out by a public officer, or those connected with the prosecution, such confessions are not to be admitted as evidence, though they come from an officer not authorized to hold out inducements. Yet the fact that he is connected with those who may have authority, and has public duties to perform, is calculated to have an effect on the mind of a person under the frown of the law; as when made to a constable, or even the wife of a constable, who told the prisoner he had better confess. Rex v. Gibbons, 1 Car. & Pa. 97. (11 E. C. L. 327. 328. n. a.) So, too, some of the English judges have held, that confessions made to third persons, — persons not in office or connected with the prosecution — under the inducement held out, that it would be better for them, if they did confess, or worse if they did not, could not be admitted at all in evidence. Rex v. Dunn, 4 Car. & Pa. 543. Rex v. Slaughter, Ib. n. b. (19 E. C. L. 518.) [179] Rex v. Hannah Kingston, 4 Car. & Pa. 387. (11 E. C. L. 387.) Others have clearly held the contrary. In a modern case, Park, J. said, there was a difference of opinion among the judges on this subject. Rex v. Spencer, 7 Car. & Pa. 776. (32 E. C. L. 731.) But in a case more recent still, Patterson, J. says, it is the opinion of the judges, that evidence of any confession is receivable, unless there has been some inducement held out by some person in authority. Regina v. Sarah Taylor, 8 Car. & Pa. 733. (34 E. C. L. 608.) Whether this court will come to the same conclusion, it is not necessary to determine in this case. It certainly is going a great way, to say, that the mere opinion of a third person, perhaps a friend having no authority, and pretending to none, advising a person accused of a crime, that it would be better to confess the truth, should of itself prevent the admission of that confession in evidence, lest possibly it may not be true. But in the case before us, we are required to go much farther, not only to reject the confession made to a friend, under such inducements, but also confessions made several days after, to other persons, and apparently unconnected with such inducements. Where a prisoner has been induced to confess, By a promise or a threat, it is, says East, a common practice to reject subsequent confessions of the same or like facts, though ⅛ at a subsequent time. 2 East’s Cr. L. 658.
So whenever it appears they were made under the influence of having made the former confession; or in consequence of the former confession. 1 Car. & Pa. 97. n. a. (11 E. C. L. 328.) But where the first confession was made under inducements held out by a person not in authority and unconnected with the prosecution, it is, says Bosanquet, J. a nice question whether such subsequent confession cannot be given in evidence. Baron Hullock ruled expressly, that they might. Rex v Tyler, 1 Car. & Pa. 129. (11 E. C. L. 343.) And in Rex v. Gibbons, 1 Car. Pa. 97. (11 E. C. L. 327.) Park, J. with Hullock, B. ruled, that where an inducement had been held out, by a person having no authority, and followed by no confession, but some time after, a confession was made to another person, who presented no inducement, that they had not the least doubt such a confession was admissible.
According to these decisions, then, this evidence was clearly admissible. It is clearly within the rule now adopted by the [180] judges, that the inducement was not held out by a person hav- - ing authority ; and no confession was made whatever to the persons who offered the inducement.
I, But without adopting either of these rules as decisive of the / case, we think the true principle is, was the confession so con- ! nected with the inducement as to be a consequence of it? If it was not, it must be considered as voluntary.
Look at the facts, then, and see what connexion it can be supposed to have with the inducement. That inducement came from a friend, who, the prisoner must have known, had no authority. It was not addressed to him as a guilty person, but as one who knew something on the subject, and that was the object aimed at, by his friend, who told him it would be better for him to reveal what he knew.
But in fact it produced no confession whatever. The next day, on the 11th of February, he stated, that he hired a negro man to commit the murder, and was himself present. The day after, on the 12th, he confessed to the gaoler, that the negro was not guilty, but that two young men, Beecher and Sage, were associated with him in the murder. On the 17th of February, seven days after the conversation with his uncle, he made the admissions objected to. He sends for the gaol-keeper, and tells him he is in such distress of mind that he can no longer eat, drink or sleep, nor get any rest; that he can no longer be guilty of accusing innocent blood ; that he alone was guilty of the murder of Osborne, and wishes him to call Foster and Hollister, who were counsel for the prosecution. They were called, and he repeats substantially the same. He is reminded, that he has accused others, and replies, he hoped thereby to escape the extreme penalty of the law. He is asked, if any one had held out such inducement ? He says no one had, but still he had a hope.
The time which had elapsed since the conversation with his uncle; the fact that he then made no confession to him, the fact that he was under such distress of mind, arising from a sense of guilt in his unjust accusation of the innocent — all concur to show, that his confession had no connexion with the inducement placed before him by his uncle. But when, in ‘addition to all these considerations, upon the questions put to him, whether any one had held out to him the hope he indulged, he answers no one had, but that still he had a hope; we [181] have all the evidence that his confession was voluntary that we can ever expect under the tortures of an awakened conscience and an impending doom.
We see no ground for a new trial.
' In this opinion the other Judges concurred.
New trial not to be granted.