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Woodfin v. Sluder.

pears, both by the case agreed and by the bond itself, that the agreement of the parties was before and outside of the bond, and that the bond was not intended to embrace all the terms of the contract, although it did embrace some, and was intended to secure the price. The case of Daughtry v. Boothe, 4 Jon., 87, was very much like this. In that case the defendant hired of the plaintiff a slave, with a stipulation that the slave should not be carried out of the county; and, as in this case, a bond was given for the price, but did not recite this stipulation. It was held that the stipulation might be proved by parol. The cases of Twidy v. Sanderson, 9 Ire, 5, and Manning v. Jones, Bus., 368, are to the same point, and settle the question.

But allowing it to be true that when the whole contract is not set forth in the bond, and is not professed to be set forth, such portions as are outside may be proved by parol, yet it is insisted that so much of the contract as is set forth cannot be contradicted by parol, and that here it is set forth that the price of the hiring is $200, and that dollars mean coin. Upon general principles those propositions are true; but the ordinance of the Convention of October, 1865, entitled "An ordinance declaring what laws are in force, and for other purposes," sec. 3, provides that in all executory contracts solvable in money, whether under seal or not

it shall be competent for either party to show, by parol or other relevant testimony, what the understanding was in regard to the kind of currency in which the same are solvable; and in such case the true understanding shall regulate the value of the contract." That ordinance in terms embraces this case.

But then it is objected that the ordinance is void, as impairing the obligation of contracts. If it has that effect it is void, because the Constitution of the United States forbids a State, either in Convention or by the Legislature, to pass a law impairing the obligation of contracts.

Woodin v. Sluder.

But it is not seen by us how an ordinance which facili tates the means of ascertaining what a contract is, and then enforces it, impairs its obligation. It is precisely the re

verse.

We collect from the whole case that the contract was that for the hire of the slaves for the year 1865, the defendant should pay the nominal sum of $200, in such money as would pay debts, and that the true value of the contract was one-fourth of the sum, to wit, $50 in coin.

Judgment was entered for that sum, with interest from the 1st of January, 1866, in the court below, and we see no

error.

PER CURIAM.

Judgment affirmed.

State v. Andrew.

STATE v. ANDREW.

What amounts to such threats or promises as render confesssions inadmissible, as being not voluntary; what evidence the Judge will hear to establish the facts of threats or promises; and whether there be any evidence to show that the confessions were not voluntary; are questions of law, and the decision upon them is subject to review in the Supreme Court. Whether the evidence, if true, proves the fact of threats or promises; whether the witnesses testifying to the court as to such fact are worthy of credit; and in case of conflict, which of them is to be believed, are questions of fact for the Judge, and his decision upon them is not subject to review.

Where there was some evidence that the confessions of the prisoner were not voluntary, and in his argument to the jury his counsel, for the first time, asked the Judge to withdraw them; Held to be the duty of the Judge to decide whether the objection to the confessions came too late, and whether the jury should consider them as evidence.

(State v. Dick, 2 Win. 45; State v. George, 5 Jon, 233, and State v. Lawson ante p. 47, cited and approved.)

ARSON, tried before Merrimon, J., at Spring Term, 1866, of the Superior Court of BUNCOMBE.

The prisoner, late the slave of Robert L. Gudger, was indicted for burning a barn belonging to one John Reeves, in Madison county, where the indictment was found and whence the trial was removed. The evidence of the prisoner's guilt consisted mainly in his confessions, made while he was tied and under the charge of one T. R. James, who was acting as an officer. James and three other witnesses testified that the confessions were voluntary, and made without inducements by threat or promise. A witness for the defence testified that James did threaten the prisoner, and three others swore that James had told them before the trial that the prisoner would not have confessed had he not been scared, and thought he would be hanged to the first limb." All the evidence was set forth in detail.

66

The confessions were not objected to till after the evidence was closed; but in his argument to the jury, the prisoner's

State v. Andrew.

counsel asked the court to withdraw them. His Honor refused, but charged the jury that if they believed the prisoner had made confessions, they would give them such weight as they might think proper; they might believe them as a whole, or reject them as a whole; that they must consider of the circumstances under which they were made, in fixing the weight to be allowed them, &c.

Verdict of guilty; rule for a new trial; rule discharged; judgment and appeal.

Attorney General, for the State.
Whitfield, for the prisoner.

PEARSON, C. J. "It is the duty of the Judge to decide the facts upon which depends the admissibility of testimony; he cannot put upon others the decision of a matter, whether of law or of fact, which he himself is bound to make." State v. Dick, 2 Win., 45. In that case the Judge decided the fact against the prisoner, and admitted the evidence; but, in his instructions to the jury, he told them not to consider the confessions, if they believed them not to have been made voluntarily. This was held to be error, but one of which the prisoner could not complain, because "it could not by any possibility have wrought him harm." As the Judge had decided the fact against him, it was only giving him another chance to have the same fact passed on by the jury. What facts amount to such threats or promises as make confessions not voluntary and admissible in evidence is a question of law, and the decision of the Judge in the court below can be reviewed by this court; so, what evi. dence the Judge should allow to be offered to him to establish these facts, is a question of law. So, whether there be any evidence tending to show that confessions were not made voluntarily, is a question of law. But whether the evidence, if true, proves these facts, and whether the witnesses giving

State v. Andrew.

testimony to the court touching the facts are entitled to credit or not, and in case of a conflict of testimony which witness should be believed by the court, are questions of fact to be decided by the Judge; and his decision cannot be reviewed in this court, which is confined to questions of law. See State v. George, 5 Jon., 233, as to the manner in which the facts found by the Judge should be set out in a case made up for this court. There his Honor, finding the facts to be as sworn to by the witnesses, ruled that this did not amount to such threats as, under the circumstances, made the confessions not voluntary, and admitted them in evidence. This court reviewed that decision as a question of law. See also State v. Lawson, ante p. 47.

In this case the Judge did not decide the preliminary fact upon which depended the admissibility of the confessions. Four witnesses, in their testimony to the court, if believed, proved the confessions made to James, the officer, were not made voluntarily, but under the fear of "being hung on the next limb." It was error for his Honor to pass this question by without a direct decision, and put on the jury the responsibility of deciding it upon evidence which was not offered to them, but to the court. The jury is sworn and empanneled to try the issues joined between the State and the prisoner at the bar, and not sworn and empanneled to try collateral matters preliminary to the admissibility of evidence. We cannot say, in this case, that the error "could not, by any possibility, have wrought the prisoner harm," we cannot say how the jury regarded the matter, or what would have been the decision of his Honor, if the question of the credibility of these witnesses had been squarely met by him. The duty of finding the facts preliminary to the admissibility of evidence is often a very embarrassing one, as in this case where there is a conflict of testimony. But this duty must be discharged by the Judge, and the evil of al

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