The following are the facts, so far as relates to the questions of law submitted to this Court:

The prisoner, a slave of one Wallace, was convicted of a rape upon one Elizabeth C. Rogers, a white woman. On the trial she was a witness, and proved the offense fully. On the part of the prisoner it was admitted that he had connection with the woman, but he alleged that it was by her consent, and that there had been a previous criminal intimacy between them. In order to establish it, the prisoner offered to prove by a witness that on a certain night, some time before the alleged rape, he and the prisoner went from Wallace's towards the residence of Harvey Rogers, the husband of Elizabeth C. Rogers, and that after having gone together some distance to a neighbor's house, the witness stopped and the prisoner went on, and, after having been absent some time, the prisoner returned and told the witness that he had been to the house of Rogers, who was from home, and had been admitted by his wife. Upon objection from the solicitor for the State, the court rejected this evidence.

After an answer in the negative to a question put to Mrs. (306) Rogers on her cross-examination, whether she had not allowed the prisoner to put his hands on her in a free and familiar manner, it was proved by another slave of Wallace, on the part of the prisoner, that he had frequently seen the prisoner treat her in that manner; and the prisoner offered further to prove that the witness Rogers had permitted other negro men to kiss her and take other liberties with her. But upon objection by the solicitor, the court rejected this latter evidence also.

The prisoner offered further to prove that Harvey Rogers, the husband, had in the presence of his wife offered to compound this prosecution with Wallace, the owner of the prisoner. But the solicitor objected to this evidence, and the court refused to admit it.

It was then proposed on the part of the State to give in evidence the confession of the prisoner, and, for that purpose, one Springs was examined. He stated that on one occasion, after the prisoner had been committed to jail on this charge, he saw the prisoner and asked him to whom he belonged, and why he was in prison, to which the other replied that he belonged to Wallace, and was in jail for a rape on Mrs. Rogers. The witness, having heard something of the case, then said, "Yes, I have heard of you; and it is said you choked her and had your will of her"; and the prisoner answered that he did. The witness said that he then asked the prisoner why he did so, and the latter replied that he supposed he must have been drunk; and that, to the question from the witness, "Did you know it would hang you?" the prisoner replied that he did not. To this evidence the counsel for the prisoner objected, but the court received it.

After sentence of death upon conviction, the prisoner appealed to this Court.

RUFFIN, C. J.

Upon all the questions of evidence the ruling (307) of his Honor was, in the opinion of this Court, right. It was not competent to establish that the woman was the prisoner's concubine, or any fact from which that relation might be inferred, merely upon the prisoner's own declaration of it, and especially when the declaration refers to a period and act different from those which enter into the particular offense charged in the indictment. A person cannot thus make evidence for himself.

That familiarities had occurred indicative of habitual criminal connection between those persons, as proved by the prisoner's fellow-servant, was properly left to the jury as tending to disprove the probability of the use of force or fear by the prisoner, and to discredit the witness for the State. No doubt, too, that it would have been proper to receive evidence that the woman was a strumpet, upon similar grounds; and, particularly, that she had illicit intercourse with other negroes. But that ought only to be done upon general evidence, for it is a question of character, and, as in other cases when that question arises, it would be a complete surprise if particular instances of such familiarity with a certain person, or with certain persons, were received to establish the character. The point, indeed, is not new, but was so ruled in a case of this sort by eight judges in 1811, Hodson's case, Russ. and Ry., 211; and was held, also, in Rex v. Clarke, 2 Stark., 241.

The offer of the husband to compound the prosecution was irrelevant, and, therefore, only calculated to mislead, and was properly rejected. His motives for instituting the prosecution, if he did so, which is not stated, may not have been good; but that does not tend to show that she was not creditable, or that the facts were not as she had sworn they were. The husband's acts and declarations are not evidence to discredit the wife. It is said, however, that the offer was made in her presence, and that, as she did not object, she is to be taken to have assented to (308) it. But it is plain that she had no right nor power to interfere in the matter, and that her assent or dissent could avail nothing. If the husband had undertaken to state the facts as they occurred, or as they had been stated to him by his wife, and that statement had varied from the evidence given by her, and she suffered it to pass without notice and correction, it would have been proper evidence to contradict and discredit her. He did not, however, profess to relate the facts at all, but merely offered to compound the prosecution, which he might have done as well as if it was instituted for acts committed by the prisoner as if it were for acts falsely imputed to him by the wife. The evidence is too slight and vague to found any just suspicion of a conspiracy between the husband and wife to prosecute the prisoner upon a false accusation, since there is nothing but the silence of the wife on a point in which she had in law and fact no control over her husband.

The confession of the accused freely made is evidence against him; and, as far as appears, this was of that sort. There was no attempt to show that Springs induced the prisoner to make it by any impression of hope or fear, nor even a suggestion that such an impression had been previously made on him by any person from the influence of which this might have proceeded. All that is in the case are the circumstances that the prisoner was in jail when he confessed, and that he said he was not aware of the punishment inflicted by the law for that offense. But there is no doubt that a confession made in prison is evidence, provided it be the prisoner's own act, not unduly obtained by promises or threats; and, certainly, a confession cannot be deemed the less voluntary or the less to disclose the truth because the person was not under the temptation to conceal or misrepresent the facts, which a knowledge that the offense was capital might have produced. If, indeed, the prisoner had been deceived on that point by the witness it would be different, as that would really be obtaining the confession by falsely exciting an (309) unfounded hope and belief. But the mere fact that the prisoner was not aware of the degree of his crime and, therefore, was not aware of all the consequences that might ensure from the confession is no objection to using it; for it affords no presumption that it was not a voluntary act of the prisoner or that he may have accused himself therein of some things of which he was innocent. Upon the whole, nothing is found in the exceptions or record on which the judgment ought to be reversed.

PER CURIAM. No error.

Cited: S. v. Wright, 61 N.C. 487; S. v. Cruse, 74 N.C. 492; S. v. Needham, 78 N.C. 476; S. v. Efler, 85 N.C. 590; S. v. Daniel, 87 N.C. 508; S. v. Howard, 92 N.C. 777; S. v. Parish, 104 N.C. 691.