It is clear that Fahnstock, who engaged in the endeavor to recover the pin from personal interest, was, in no sense, a person in authority. It is unnecessary to determine whether, if Clark had been induced to make a confession, by the assurance of Fahnstock, that “if he could get the pin, he would guaranty nothing should be said about it,” such confession would have been admissible. No confession was, in fact, made ; Fahnstock said that Clark “never acknowledged that he had stolen the pin, nor how he got it, nor if he had it.” Clark was not alarmed. Fahnstock was one of his familiars. He was not betrayed into any criminating admission. He said, “ he knew where the pin was ; it was in the country; he would write for it and get it in a week;” and being told that would not do, he said, “ tomorrow at two o’clock you shall have it.” By these declarations, Clark did not charge himself with the larceny. On the contrary, he exculpated himself and tried to divert the attention of Fahnstock to some person in the country. A denial of guilt is not excluded by the terms of the rule which excludes confessions, nor is it excluded by the reason of the rule. Extorted confessions are rejected, from an apprehension that, in order to obtain relief from present and intolerable distress and anguish, the prisoner may be betrayed falsely to accuse himself, by the agitation of fear or the hope of engaging the clemency of his accusers, inspired by the inducements held out to him to make a confession. The denial of the prisoner that he had been near the place of the theft, or had ever seen the stolen goods, may be given in evidence and shewn to be untrue, for the purpose of establishing his guilt.

Even if what Clark said to Fahnstock was to be governed by the rules which apply to confessions, it is not true, as has been argued, that if a confession cannot be admitted, no evidence can be received of what the prisoner said, though it does not amount to a confession, and is not offered as an admission of his guilt. When a confession, improperly obtained, cannot be admitted, yet so much of the confession as *315relates strictly to the fact discovered by it, may be given in evidence. The fact that the witness was directed by thev prisoner where to find the goods, and his having found them accordingly, should be submitted to the jury; but not the acknowledgment of the prisoner’s having stolen or put them there; which is to be collected or not from all the circumstances of the case. Such confession is evidence of the fact that the prisoner was acquainted with the place of deposit; and so far as such knowledge goes, it is evidence against him. Though the prisoner cannot be convicted by his confession of a fact tending to criminate himself, yet his statement of the fact may be received in evidence, and his knowledge of the fact may be connected with proof of its existence, so that his guilt may be inferred.

The taking and carrying away of personal chattels is felonious, when they are taken against the will of the owner, in his absence, or in a clandestine manner ; and when the taker intends fraudulently to deprive the owner of his whole interest in the property, against his will. Oakly, the owner of the pin, testifies that he had put the pin in his bureau drawer at night, and the next morning it was missing, and had been taken without his knowledge and against his consent. The testimony of Oakly, in the second ground of appeal, is affirmed to be incompetent, because Mrs. Brown, who lodged in the house, first informed him that the pin was stolen, and she could and should have been introduced as a witness.— The incompetency of the evidence has not been assumed in the argument; but it has been urged, as a ground for a new trial, that Mrs. Brown was not called for the State.

The rules of evidence are directed to the proof of the issue by competent testimony. They do not require that all the witnesses who may be present when the offence was committed, or who may be supposed to possess information respecting it, should be produced. If the case be fully proved, the verdict will not be set aside, on the suggestion that if a certain witness had been called for the prosecution, he would or might have given evidence to show the prisoner’s innocence in Court. If auy doubt arises respecting the guilt of the prisoner, from the obscurity which rests on any material circumstances of the offence, that is considered by the jury.— In this case, the verdict is supported by satisfactory evidence. The possession of a valuable diamond pin, which the defendant could not honestly have acquired; the trading of it so much below its value as to produce the conviction of his companion' that it was stolen ; the false account of the manner in which he got possession; his statement that the pin was in the country, when he had traded it to Lowry; his anxiety to recover it when he was required to produce it, connected with his desperate character, supplied a degree of *316proof greater than is commonly produced in a case oí larceny. With this evidence before them, the jury could and did prop- ' erly estimate the force of the objection urged with great zeal that Mrs. Brown knew all about the carrying ofF of the pin, that she might have taken it herself, and prove that it had never been stolen; and if produced that she would make clear the innocence of the prisoner. She had no custody or charge of the pin; the prisoner never affected to have got it from her, nor to trace his possession of it to her, nor give any credible account how he got it. To grant a new trial on the surmise that Mrs. Brown’s testimony would have acquitted the prisoner, would be to abandon what is substantial, and catch at a shadow.

On the third ground of appeal, it is sufficient to remark, that it is the obvious and necessary condition of the presumption of larceny, from the possession of the pin unaccounted for, that the pin should have been stolen. But the evidence against the prisoner was not limited to the presumption arising from possession. The whole evidence was brought to the view of the jury, which establishes the fact that the pin was stolen, and that the prisoner was the thief, sufficiently to prevent this court from disturbing the verdict.

The motion is refused.

dissenting. — In this case the Jury were advised, that it was not necessary for the State to produce Mrs. Brown as a witness; and, assuming that Oakly had proved the pin to have been stolen — that the possession of it by Clark, raised the presumption that he had stolen it, if he did not show that he got it honestly.

They found Clark guilty of the felony, and the notice of appeal is as follows:

“2d. Because there was no other proof that the breast-pin was stolen, except the testimony of the owner, that he had left it in his bed room, where one Mrs. Brown was staying, and that he was informed by her that the said pin had been stolen ; that this evidence of the felonious taking, was incompetent, and Mrs. Brown could and should have been produced as a witness, to prove the loss of the property.

3d. Because his Honor charged the jury that the possession of the breast pin by the prisoner was presumptive evidence of his having stolen it; whereas, it is respectfully submitted, that his Honor should have charged, that such presumption could only arise when the jury should have been satisfied that the properly had been actually stolen.

4th. Because the verdict was contrary to law and evidence.”

The argument under these grounds is, that the felony charged was assumed to have been committed upon the bare suspicions of Mr. Oakly, the owner of the pin, which suspi*317cions had been put into his head by another person, (Mrs. Brown,) without adducing Mrs. Brown herself, who was within the control and reach of the prosecuting officer; and that the presiding judge indicated to the jury, that they might, upon such evidence, assume the felony to have been proved; and that being once assumed, the possession of Clark raised a presumption that he had stolen the pin.

Let ns consider this argument and these judicial positions.

In every prosecution for a felony, the primary object is, first to prove that the alleged felony has been committed by some one.

This is the reason why the owner or keeper of the thing stolen, is invariably required. Without such a person deposing, to the felony, the taking of the thing can rarely be called a felonious taking, unless you pervert the law and assume guilt in the defendant, instead of innocence..

It is, after such foundation for the prosecution, i. e., the felony proved, that the presumption from the bare possession by the accused, arises.

If I have conceived the evidence adduced rightly, and expounded the law applicable to the case, the presumption of guilt against Clark has been assumed upon a previous assumption of a felony never proved.

If, for instance, A were detected riding off upon the horse of B, at daylight, there can be no presumption that A stole the horse. For that he might have got him honestly, is the natural, true and legal presumption, until B shall have deposed that the horse had been stolen from him.

And then, and not till then, may A be found guily of the felony upon the presumption ; unless he explains such possession to have been of a fair character. Any other meaning, if attached to the rule, would be assuming the defendant guilty, till he proved his innocence.

This exposition of the rule of presumptive guilt, gives the reason of another important rule of the criminal code — that the State is bound to lay before the Court the entire evidence against the accused, or give a reason for its non-introduction, as that it cannot be had, or is evidently superfluous, or the like.

This is also a very important rule in conducting criminal prosecutiotis, and which I think has been too much disregarded in the case before the Court. And I must acknowledge that the same objection to the verdict in the case of the State v. James F. Teideman, arising from the absence of Nelme, the Rail Road officer, struck my understanding, though not to the same extent as in this case. There was in that case, as well as in this, too short proof of the supposed felony.— And the cause of my writing this dissenting opinon, is that I would restrain a practice of omitting essential and satisfacto*318ry evidence in every prosecution for felony, and of resting too much upon the presumption of guilt, in an unknown, ob- ' scure or bad man, whose legal rights are to be lawfully protected by the Court, however demeritorious the individual may be.

The common law is a code of severe punishments. The object seems to be ta eradicate mischiefs by severe inflictions. But the same code bears lightly and kindly, humanely and generously, upon the person accused of crime. It seems as though in carrying on prosecutions, it would follow almost the converse rule of the former severe spirit, in its punishments.

And hence arises the many humane rules laid down by all the criminal writers, to enable the aecused to escape, unless the evidence of his felony be plenary and convincing.

Until so much evidence be adduced against him, he is presumed to be innocent. It should be ever borne in mind, that such presumptions of guilt are not presumptions of law, but are merely conclusions permitted under a certain state of facts.

It is the same rule that points out the reasons of the distinction between appeals from verdicts of guilty in criminal cases, and verdicts in civil actions.

In civil actions the end is to quiet litigation ; and hence it is, that Courts avoid disturbing verdicts in such cases. But in criminal prosecutions, Courts more readily interfere, in order to restrict verdicts to cases of guilt clearly proved, lest the innocent should be, even perad ven ture, punished.

He that does not conceive of the distinctions I have laid down between the punishment of crime and the evidence required to prove a particular instance, and also of the distinction between appeals from criminal convictions, and verdicts in civil actions, has mistaken the essential texture of the common law ; and I will add, from such confusion of very opposite rules arises full one-half of the discontent with the common law code of punishments and prosecutions; whence proceeds the notion of a greater acerbity than really exists.

Now, to apply this (somewhat discursive) exposition of criminal evidence, would it not be better to grant a new trial to Clark, and to let him be convicted upon the more plenary evidence of Mrs. Brown touching the felonious taking of the pin, which is the condition precedent to any presumption against the defendant ?

I should say so, and also in the case of Tiedeman, by adducing Mr. Nelme, who would as probably prove the felonious taking of the hats, and render the conviction satisfactory.— Whereas the evidence adduced, while it tended strongly to implicate a suspected shopkeeper and a guerilla, in receiving goods, but which goods were by no means clearly proved to have been feloniously taken, entirely lacked the very founda*319tion, without which the presumption of guilt could not arise.

In the case of Teideman, there was another ground taken,, to wit: that “in commenting on the defect of any evidence that Csesar had any thing to do with the box, the Judge remarked to the jury that it might be explained by the late appearance of the witness Nelme. But the jury were promptly and decisively told that this observation was not intended to supply evidence, but only to account for the omission by the Attorney General, to produce evidence to that point.”

Upon this ground for a new trial, the counsel urged that the error of the Judge was not entirely remedied by the remark, that this observation was not intended to supply the evidence of Nelme, &c.

And I cannot but feel, from the very correction of his own observation inadvertently made by the Judge, that it may have had undue weight with the jury in inducing them so to supply the evidence of Nelme, which was so important to the prosecution.

In a case of such uncertain influence, which we cannot possibly measure, I consider that the defendant has claims for a new trial, and the prosecution itself would be more satisfactory, if the conviction of the defendant followed the actual evidence of Nelme. It is very like the case of a Judge receiving incompetent evidence, or rejecting that which is competent. In such cases, Courts do not weigh the evidence which has been rejected, but give a new trial, lest injustice should have been done by the verdict. I have commented on the case of Tiedeman as illustrative of the argument, which I think ought to induce the Court to grant at least to Clark a new trial, and for the purpose of further shewing why I consider a dissenting opinion proper, if not necessary.

Motion refused.