The rules of evidence as to the admissibility, on a trial lor crime, of the previous confessions of the prisoner, have been much discussed, both in this country and in England, and have given rise to considerable conflict of judicial opinion. It is not necessary for us to enter into this intricate maze of judicial uncertainty as the principles which govern this case are founded in natural justice and upon high authority. The confessions of prisoners are received in evidence upon the natural, as well as legal presumption, that a prisoner will not make an untrue statement, against his own interest. This presumption is weak or strong, according to the various circumstances and facts of the particular case. All the authorities agree that such evidence ought to be taken with great caution and unless the confessions were free and voluntary, and made with deliberation and without fear, excited by threats, or inducement of temporal advantage, they ought to be rejected as evidence on a trial for the admitted crime. Nemo tenetxw seipsum accusa/re was a well established maxim of the common law, and was applicable, both in civil and criminal proceedings. Even the Court of Chancery, in enforcing discovery does not depart from this general policy of the law and will not require a party to discover matters to criminate himself, or expose him to a penalty or forfeiture. No examination of a prisoner as to a crime charged against him was allowed in England until the passage of the statutes of Phil. & M. — 1 Greenleaf on Em., 256.
The provisions of these statutes were substantially re-enacted in this State, {¡Rev. Code, Oh. 35), and many decisions have been made under them.
It is well settled that the examination on oath of a prisoner as to his own guilt, taken before a committing magistrate is *110not admissible in evidence, as the statement was made under tbe constraint of an oath, and therefore was not voluntary, State v. Broughton, 7 Ired., 96. The objection, to the admissibility of such evidence, is much stronger, if, at the time of the examination, the prisoner was under arrest, for the alleged crime. State v. Young, 1 Winst., 126.
To authorize the introduction of parol evidence, as to the confession of a prisoner, before an examining magistrate, it must appear, affirmatively, that there was no examination recorded, as required bylaw. — State v. Parish, Busb., 239.
The Courts, in acting under these statutes, have generally construed them with liberality towards prisoners, and have regarded with suspicion,'confessions made to “ a person in authority,” and have tima manifested a tendency to return to the liberal and humano principles of the common law, upon this subject.
The hardships and injustice, which often occurred to prisoners, under the statutes of Phillip and Mary, and the advancing civilization of the age, called ior additional legislation in England, which is now embodied in the statute of 11 and 12 Vict. The principles of this statute are contained in the Acts of 1868 -9, ch. 178. Under this statute, the prisoner is entitled to have the benefit of counsel, and before his examination is commenced, it is the legal duty of the magistrate, to inform him of the charge made against him, and “ that he is at liberty to refuse to answer any question that may be put to him, and that his refusal to answer shall not he used to his prejudice, in any stage of the proceedings,” and the examination shall be reduced to writing, and submitted to him for correction and explanation. Such examinations are termed judicial confessions, and the policy of the law requires them to be taken under the protecting caution and oversight of the judicial officer. This caution is an essential part of the proceedings, and must be given to the prisoner under arrest to make his examination admissible in evidence.
*111Tiie reasons of the statute extend to the inquisition of the coroner, for, in this respect, he is an examining magistrate. When a person is slain, it is the duty of the coroner to make inquiry, as to all the material circumstances attending his death, and find out, it possible, who is guilty of the homicide, either as principal or accessory, and “ shall cause them to be taken and delivered to the Sheriff, and committed to jail.”
In this case, we are only considering the admissibility in evidence of confessions made in the presence of examining and committing officers. We will not enter upon the many distinctions which have been drawn by Judges, as to what fear, hope, or other inducement will exclude confessions made to other persons in authority, or to private persons.
The law requires its officers to administer justice, with caution and with mercy, and will not allow them to act the part of mere detectives of crime.
The fear and apprehension which is naturally produced by an arrest and charge of crime, which is often increased by his ignorance of legal proceedings, and by the manner, appearance and language of the excited crowd, which is usually present when an examination is taken, are well calculated to throw him off his guard, and deprive him of his usual self-possession and prudence. The present wise and beneficent policy of the law allows a prisoner under arrest, time for deliberation, and an opportunity to obtain correct legal advice, so that the statements which he may make on an examination, are made of his own free will, and with full knowledge of the nature and consequences of his confessions.
The wisdom and enlightened policy of the statute, which we are now considering, are clearly exemplified in the case before us. Erom the evidence it appears, that an “after-birth,” was found near a millpond, which induced the neighbors to believe, that a recently-born infant had been murdered. This circumstance naturally produced much excitement, and caused an active search to be made, in which the body ol a child was *112found. The prisoner and her mother were arrested, and in a short time the coroner and a jury appeared to make an inquisition. A post mortem examination was made in the night time, and near the door of the prisoner’s house. “ During “this time prisoner was in the house, which consisted “ of a single room, lying on a bed, weeping and groaning, the house filled with persons ■ that suddenly she sprang “ up and out of the door, and as suddenly sprang back, and “ fell upon the bed, and was very much excited. The post “ mortem examination being finished, evidence of witnesses “ taken and verdict of jury entered up ; in answer to questions put by the foreman of the jury — the prisoner eonfesss- “ ed. The coroner cautioned her after the first question was “ put, telling her not to answer, it was none of his business “ and that her answers might be used against her.”
The caution came too late to afford the protection which the law requires. The record does not set out the confession, but it appears to have been made when the prisoner exhibited great agitation and mental distress, and when she must necessarily have been in a condition of physical prostration. She had heard the evidence of the witnesses, and the solemn verdict of the jury as to her guilt. Her response was to a question of the foreman of the jury, and was made without any previous advice as to her legal rights, and the probable consequences of her statement. She no doubt regarded the foreman of the jury as a person in authority, and in her ignorance of the law she felt bound to answer his questions. The ver-diot of the jury was entered up, and she no longer had any expectation of safety by remaining silent, and, it may be, that she hoped for mercy trom her prosecutors, by making a statement in accordance with the verdict of the jury, and the opinion of the crowd. Her mother, who perhaps was her only friend, was under arrest, and charged as the partner of guilt, ■and she saw no manifestation of sympathy from her neighbors who believed that she had committed a heinous crime.
*113Even if a previous caution was not required by the Statute, we think under the circumstances of the case, His Honor., would have been justified in rejecting the confessions of the-prisoner. The wise and humane rule laid down by Hawkins, before the passage of the Stat. 11 and 12 Victoria, is well stated, and is very applicable to this case. “The human mind, under the pressure of calamity is easily seduced, and is liable in the alarm of danger to acknowledge indiscriminately a falsehood, or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination, or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the? impressions of fear, however slightly the emotions may be implanted, is not admissible evidence, for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Hawkins P. C., ch. 46, page 595.
As the confession in this case was made before the coroner, without the previous cautions required by the Statute, it was inadmissible as evidence, and His Honor erred in allowing it to go to the jury. 1 Greenleaf on Ev., ch. 12. Roscoe's Cr. Ev. 55. The Queen v. Johnston 2 Heard. L. Cr. Cases 504.
On the trial, the physician who had been summoned by the coroner, stated that he had made an examination of the person of the prisoner, and in his opinion, she had been delivered of a child a few days before the inquisition was taken. “The prisoners counsel, proposed to ask the witness, from his experience and'knowledge of females in three or four days after the delivery of a child, under the circumstances as detailed by the evidence, the prisoner was in a condition or frame of mind to give an intelligent answer, or know what she was talking about.”
This question was a proper one, and the witness ought to have been allowed to answer it. The testimony proposed might have been introduced, before His Honor passed upon the admissibility of the confession, and might have had an *114important influence in determining that matter. At the time' it was offered, it was admissible for tbe purpose of showing, that, an account of the physical condition of the prisoner, little confidence could be placed by the jury in the truth of her statements.
The hypothesis assumed by the prosecution, founded upoa. the confession of the prisoner, was, that the child was killed by a stroke on the top ©f the head with a stick. The physician who made the post mortem examination, stated on the trial, that this hypothesis was “highly improbable,” and gave intelligent reasons for his opinion, and “that he could account for the death of the child otherwise than by violence, to-wit: by neglect.” If the prisoner in any manner exposed the child, with an intent to destroy it, or by any other species of criminal neglect caused its death, she might have been convicted under the second count of the indictment. If however, the neglect was not deliberate and wilful, but was the result of poverty, debility or mere inattention, she would not be guilty of a criminal offence. Roscoe, C., Ev. 667. There was no evidence to show that the child died from any criminal neglect, so that, there are only two hypotheses which were presented by the testimony. The first founded upon the confession made under the circumstances mentioned; and the secónd arising from natural evidence as understood and explained by a witness of scientific knowledge and professional experience, who was prompted by no motive but a regard for justice and truth.
The law presumes a person to be innocent until the contrary is conclusively proved and the burden of proof is always on the State. All the text ..writers and numerous judicial opinions declare that criminal cases must not be determined by a preponderence of testimony, but the evidence must be sufficient to produce a full conviction of guilt, to the exclusion of all reasonable doubt. The rule requiring proof beyond a reasonable doubt does not require the State, even in a case of cir*115cumstantial testimony, to prove such a coincidence of circumstances as excludes every hypothesis except the guilt of the prisoner ; the true rule is, that the circumstances and evidence must be such as to produce a moral certainty of guilt, and to exclude any other reasonable hypothesis. 1 Leading Cr. Cases (Bennett) 322. 3 Greenleaf on Ev., Sec. 29.
When any reasonable hypothesis of innocence exists in the mind of the jury, there must necessarily be a reasonable doubt as to the guilt of the accused, and he is always entitled to the benefit of that doubt.
The charge of His Honor upon the question of reasonable doubt was the usual formula adopted on criminal trials, but under the circumstances of this case, we think he ought to have given the instructions asked by the counsel for the de-fence.
There must be a Venire de novo.
Let this be certified.