Woolfolk vs. The State of Georgia.

5. There are some other questions made in the motion for a new trial which it is necessary for us to notice. briefly, as they will probably arise on the next trial. The first is as to the 9th ground of the motion, which relates to the admissibility of the testimony of Dannenburg. We see no error in admitting this evidence, on the ground urged in the motion for a new trial.

6. Nor was there any error in admitting the testimony of Davis, Brown and others, as complained of in the 13th and 14th grounds of the motion. This testimony was in relation to the coroner's requiring the defendant, during the progress of the inquest, to remove his clothing, and the statements of the defendant made during the investigation. The objection was, that the circumstances then surrounding the defendant amounted to force and compulsion. We see no error in the admission of this testimony. We think that the coroner, the sheriff or a policeman, when he arrests a person charged with crime, has a right to search that person for evidences of his guilt, and if, in the prosecution of this search, it becomes necessary to remove the clothing of such person, the officer has a right to do so; and when called upon to testify as to the discoveries made during the search, the testimony of the officer or those who were present at the time of the search would be admissible. If the Woolfolk family had been killed with any peculiar instrument, and when the defendant was searched that instrument was found upon his person, with blood and other evidences that it was the instrument used in the killing, would it be contended for a moment that testimony of that kind was inadmissible? So far as this record discloses, the statements made by the defendant were perfectly voluntary and not under oath. It is true that there was some excitement in the crowd during the day, and that the defendant

Woolfolk vs. The State of Georgia.

was under arrest charged with the murder of his whole family; but there had been no threats made against him, so far as the record discloses.

The rule laid down by Wharton in his Criminal Evidence, §§664, 668, upon this subject, is as follows: "A statement made voluntarily under oath by a witness before a coroner's inquest in answer to interrogatories there put to him, although he was at the time informed he was suspected of the crime, has been held subsequently admissible when he was on trial for homicide. But the testimony of an accused party, taken as such, is not admissible, when such accused party is put on his oath and sworn and examined."

Bishop, in his work on Criminal Procedure, vol. 1, §§1255, 1256, 1257, says: "The answers and other testimony which one voluntarily gives as a witness in any cause or proceeding, civil or criminal,-as before a .. committing magistrate or a coroner, . . are, as admissions or confessions, competent against him on any issue in a criminal cause to which they are pertinent. So likewise is the party's own voluntary affidavit made on a motion for a continuance. But testimony involuntarily given, as for example, answers compelled from a witness who objects because they may criminate himself, or made under the pressure of an oath which the tribunal had no legal authority to administer, or uttered when, by reason of circumstances, he probably feels under a constraint to testify in a cause which in effect appears as his own, or otherwise under fear,-is not thus admissible. It is believed that the foregoing sections are correct in principle, and in accord with all but a few of the authorities. There are cases which seem to regard the oath as a disqualifying circumstance, without distinguishing whether it was lawfully required or not; and cases wherein the testimony is deemed inadmissible if given after the witness

Woolfolk vs. The State of Georgia.

is himself accused, when it would not be had it been uttered before. But while the latter distinction may sometimes be of secondary consequence, It is believed that what is said above covers, in reason and on the better authorities, the whole ground."

See the authorities cited by these authors, which we have examined, and which fully sustain the text. See also Dickerson vs. The State, 48 Wisc. 288, where this subject is ably discussed; also Teachout vs. People, 41 N. Y. 7; and 3 Am & Eng. Encyc. of L. 470.

7. The next ground complains that when the defendant called Pennington as a witness, the court, on motion of the State's counsel, sent the jury from the room until the witness had undergone a preliminary examination as to certain threats made by one John Jeff. There was no error in this action of the judge in sending the jury out so that they could not hear this testimony. We think that it is within the discretion of the court, either in a civil or a criminal case, whether the jury shall be sent out so that they may not hear certain preliminary testimony, or whether they shall remain in the court-room and hear it. And we will not control that discretion unless its exercise is abused, and it was not abused in this case. The State's counsel, in the argument of this question, relied on the case of Hall vs. The State, 65 Ga. 36, and contended that whenever confessions are about to be given in, it is the imperative duty of the judge to send the jury out. We have examined the record of that case in the clerk's office of this court, and find that that question was not made in the record. There was no complaint, hint or intimation, either in the motion for a new trial or in the bill of exceptions in that case, that the judge trying the case failed or refused to send the jury out; and what was said, therefore, by the court in laying down that

Woolfolk vs. The State of Georgia.

rule, was obiter. Besides, the court in that case failed to notice the decision in Holsenbake vs. The State, 45 Ga. 43, where the question was directly made, and was ruled to the contrary of the view announced in Hall's case. We think the better practice is to leave it in the discretion of the court, and not to bind the court by any unbending rule in this respect.

8. The next ground we shall notice relates to the exclusion of Pennington's testimony as to a threat made to him by John Jeff. The defendant proposed to prove by Pennington that, some two weeks before the killing of the Woolfolk family, he was in Macon, and employed Jeff to assist him in carrying a lunatic to the depot, and that he and Jeff had some controversy as to what he should pay Jeff; and Jeff said to him, "You have treated me like the damned Woolfolks. I have been chopping cotton for them, and I intend to kill the last damned one of them." The court excluded this testimony, and stated that he would not allow it in, but that if anything more than already appeared in the evidence should be brought out pointing to Jeff, he would admit it. The defendant then showed that Jeff had worked for Richard F. Woolfolk, the deceased, during 1887, and up to a short time before the homicide; had chopped cotton for him and had not worked that year for any other Woolfolk, and had quit him about two weeks before the killing. After the introduction of this testimony, he again offered Pennington as a witness to prove the threat above referred to, and the court excluded the testimony.

There was no error in the ruling of the court excluding bis testimony. We do not think that a single isolated threat of a third party, unconnected with any other act or circumstance of the killing, is admissible. "While evidence tending to show that another party

Woolfolk vs. The State of Georgia.

might have committed the crime would be admissible, before such testimony could be received there must be such proof of connection with it, such a train of facts and circumstances, as tend clearly to point out some one besides the prisoner as the guilty party. Remote acts disconnected, and outside the crime itself, cannot be separately proved for such a purpose. In considering the question, we have carefully examined the numerous authorities cited to sustain the position that the evidence was competent, and none of them hold that under such circumstances it could lawfully be received." Greenfield vs. People, 85 N. Y. 75.

In the case of The State vs. Beaudet, 53 Conn. 536, Loomis, J., in an able and learned opinion, reviews all the authorities upon this question, and announces the decision of the court in the following head-note: "Upon a trial for an assault on A with intent to murder, in which the defence was that B and not the prisoner made the assault, evidence of threats of B against A was held inadmissible." This was a case of circumstantial evidence against the accused. See also 4 Am. and Eng. Encyc. of Law, p. 866, where the subject of threats of third persons is treated. The author says, upon this subject, "It is therefore going far enough in favor of the accused, to allow him to exculpate himself by showing the fact of another's guilt, by some appropriate evidence directly connecting that person with the corpus delicti. The animus of a third person is no defence, and by itself it cannot prove the ultimate fact which is a defence." Numerous authorities upon this subject will be found collated in this book.

The fact that Jeff chopped cotton with the deceased and left him two weeks before the killing, was not sufficient to connect the threats with the killing. There was no ill feeling shown between him and Woolfolk;