Page:Redd v. State (1897).pdf/12

468 attached to confessions as evidence of guilt. His discussion of this question is marked by great wisdom and judgment, and has called forth frequent approval; but under our practice, where the judge is forbidden from expressing to the jury opinions as to the weight of evidence, this extract from his discussion is of doubtful propriety as an instruction to a jury. It is true that the circuit judge does not say that the confession here was deliberately and voluntarily made, but the jury might infer that the intention was that they should give great weight to such confession, provided it was deliberately and voluntarily made. Yet, even if the confession be deliberately and voluntarily made, it is still for the jury, and not the judge, to determine what weight to give it. But this instruction is subject to another objection more serious than the one noticed, for it says to the jury that if "you believe that the defendants, or either of them, confessed to the killing of Skipper; as charged in the indictment, and that both of the defendants participated in the killing, you may convict." The jury might understand from this language that if either of the defendants made a confession, and the jury believed from such confession that both were guilty, they should convict both. And the jury did convict both Redd and Johnson, who were tried together; but the judgment as to Johnson has been heretofore reversed, for want of evidence to support it. We therefore think that if there is another joint trial, this instruction should not be given again in its present form.

In a case such as we have here, where the confession is established mainly by the testimony of two negroes, both in jail, one charged with the same crime of which appellant is charged, and the other charged with larceny, we think the jury should be told that the first question for them to determine in reference to the confession is whether they believe from the evidence that