Opinion of the Court. second degree. Laws of Utah, 1878, p. 120; Code of Crim. Pro. 283-4. But it is expressly declared by the Code of Criminal Procedure that, while he may "state the testimony and declare the law," he "must not charge the jury in respect to matters of fact." § 257. The error committed was not cured by the previous observation of the judge that by the laws of Utah the jury are "the sole judges of the credibility of the witnesses and of the weight of the evidence and of the facts." It is rather more correct to say that the effect of that observation was destroyed by the statement at the conclusion of the charge that the murder, by whomsoever committed, was an atrocious and dastardly one, and therefore, as the jury might infer, in view of the language of the statute, was murder in the first degree. The prisoner had the right to the judgment of the jury upon the facts, uninfluenced by any direction from the court as to the weight of evidence. For the reasons stated, the judgment of the Supreme Court of the Territory must be reversed and the case remanded, with directions that the verdict and judgment be set aside and a new trial ordered. The assignments of error, however, present other questions of importance which, as they are likely to arise upon another trial, we deem proper to examine. 4. The first of these questions relates to the action of the court, in permitting Carr, called as a witness for the defence, to give in evidence a confession of the prisoner. That confession tended to implicate the accused in the crime charged. The admissibility of such evidence so largely depends upon the special circumstances connected with the confession, that it is difficult, if not impossible, to formulate a rule that will comprehend all cases. As the question is necessarily addressed, in the first instance, to the judge, and since his discretion must be controlled by all the attendant circumstances, the courts. have wisely forborne to mark with absolute precision the limits of admission and exclusion. It is unnecessary in this case that we should lay down any general rule on the subject; for we are satisfied that the action of the trial court can be sustained upon grounds which, according to the weight of authority, are Opinion of the Court. sufficient to admit confessions made by the accused to one in authority. It appears that the defendant was arrested at the railroad depot in Cheyenne, Wyoming, by the witness Carr, who is a detective, on the charge made in the indictment. The father of the deceased, present at the time, was much excited, and may have made a motion to draw a revolver on the defendant; but of that fact the witness did not speak positively. The witness may have prevented him from drawing a weapon, and thinks he told him to do nothing rash. At the arrest a large crowd gathered around the defendant; Carr hurried him off to jail, sending with him a policeman, while he remained behind, out of the hearing of the policeman and the defendant. In two or three minutes he joined them, and immediately the accused commenced making a confession. What conversation, if any, occurred between the latter and the policeman during the brief period of two or three minutes preceding the confession was not known to the witness. So far as witness knew, the bill.of exceptions states, "the confession was voluntary and uninfluenced by hopes of reward or fear of punishment; he held out no inducement, and did not know of any inducement being held out to defendant to confess." This was all the evidence showing or tending to show that the confession was voluntary or uninfluenced by hope of reward or fear of punishment. While some of the adjudged cases indicate distrust of confessions which are not judicial, it is certain, as observed by Baron Parke in Regina v. Bald, 2 Den. Cr. Cas. 430, 445, that the rule against their admissibility has been sometimes carried too far, and in its application justice and common sense have too frequently been sacrificed at the shrine of mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character. Such a confession, said Eyre, C. B., 1 Leach, 263, "is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and, there fore, it is admitted as proof of the crime to which it refers." Elementary writers of authority concur in saying that, while from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution, a deliberate, Opinion of the Court. voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession. 1 Greenleaf Ev. § 215; 1 Archbold Cr. Pl. 125; 1 Phillips' Ev. 533-34; Starkie Ev. 73. But the presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will,or self-control essential to make his confession voluntary within the meaning of the law. Tested by those conditions, there seems to have been no reason to exclude the confession of the accused; for the existence of any such inducements, threats or promises seems to have been negatived by the statement of the circumstances under which it was made. This But it is contended that the court erred in not excluding this proof until the prosecution produced the policeman and proved that nothing was said or done by him, in the absence of Carr, which unduly influenced the making of the confession. The argument is, that, possibly, the policeman offered such inducements, or made such threats or promises, that the prisoner, when joined by Carr, was not in a condition of mind to make a confession which the law would deem voluntary. position, although plausible, is not sustained by authority, nor consistent with sound reason. The circumstances narrated by the witness proved the confession to be voluntary, so far as anything was said or done by him on the immediate occasion. There was nothing disclosed which made it the duty of the court to require as a condition precedent to the admission of the evidence, that the prosecution should call the policeman. and show that he had not, when alone with the accused, unduly influenced him to make a confession. In Rex v. Clewes, 4 Carr. & Payne, 221; S. C. 3 Russell on coroner. Opinion of the Court. Crimes, Sharswood's Edit. 431-32 the prosecution proposed to give in evidence a confession made by the accused before the It appearing that a magistrate had previously an interview with the prisoner, it was suggested that as he may have been told by that officer that it was better to confess, the prosecution should call him. But the court said that while it would be fair in the prosecutors to call the magistrate, it would not compel them to do so, but if they did not the prisoner might do so if he chose. In Rex v. Williams, Roscoe's Crim. Evi. 7th Amer. Edit. 54; 3 Russell on Crimes, Ib. 432, it appeared that a prisoner, being in the custody of two constables on a charge of arson, a third person went into the room. The prisoner immediately asked him to go into another room, as he wished to speak to him. They went into that room and the prisoner made a statement to that person. It was contended that the constables ought to be called to prove that they had done nothing to induce the prisoner to confess. But Taunton, J., after consulting with Littledale, J., said: "We do not think according to the usual practice that we ought to exclude the evidence because a constable may have induced the prisoner to make the statement; otherwise he must in all cases call the magistrates or constables before whom or in whose custody the prisoner has been." In Rex v. Warner, 3 Russ. on Crimes, Sharswood's Edit. 432, the prisoner, when before the committing magistrate, having been duly cautioned, made a confession, in which he alluded to one previously made to a constable. It was remarked by the court that although it was not deemed necessary that a constable, in whose custody a prisoner had been, should be called in every case, yet, in view of the reference to him, he should be called. The constable being called proved that he did not use any undue means to obtain a confession, but he disclosed the fact that he had received the prisoner from another constable, to whom the prisoner had made some statements. As it did not appear that any confession was made to the latter, and only appeared that a statement was made that might either be a confession, a denia or an exculpation, the Opinion of the Court. court would not require him to be called. S. C. Roscoe's Crim. Evi., 7th Amer. Edit. 54-5. Roscoe (p. 554) states the rule to be, that "in order to induce the court to call another officer in whose custody the prisoner has been, it must appear either that some inducement has been used by or some express reference made to such officer." Russell says: "For the purpose of introducing a confession in evidence, it is unnecessary, in general, to do more than negative any promise or inducement held out by the person to whom the confession was made." Vol. 3, p. 431. While a confession made to one in authority should not go to the jury unless it appears to the court to have been voluntary, yet as the plaintiff in error chose to let its admissibility rest upon the case made by the detective, without any intimation that it would be different if the policeman was examined, and since there was nothing in the circumstances suggesting collusion between the officers, we do not think the court was bound to exclude the confession upon the sole ground that the policeman was not introduced. 5. The last question relates to the action of the court in admitting, as a witness in behalf of the prosecution, Emerson, then serving out a sentence of confinement in the penitentiary for the crime of murder, and the judgment against whom had never been reversed. His testimony tended to implicate the defendant in the crime charged against him. Objection was made to his competency as a witness, but the objection was overruled. At the time the homicide was committed, and when the indictment was returned, it was provided by the Criminal Procedure Act of Utah of 1878 that "the rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this act." And the Civil Practice Act of that Territory provided, § 374, that "all persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding. Facts which, by the common law, would cause the |