On December 29, 1913, in the city of New York, Carmello Carnestraro (or Carnestrale) was killed by a stab. Within a brief time afterward the defendant was arrested under the charge that she inflicted the stab and was imprisoned in the Tombs prison, where she remained until her conviction of murder in the first degree. On January 9, 1914, a coroner of the county of Bronx held an official inquest into the cause of the death *Page 309 of Carnestraro. During the progress of the inquest the defendant was taken by two police officers from the Tombs to the place of the inquest to be examined in the inquest by the coroner. She was an Italian. Having been brought before the coroner, the oath was administered to her by the coroner through the official interpreter, and the coroner then through the interpreter asked and received her answer to the question "Where do you live?" and then said: "Mrs. Ferola, you are charged with homicide, in having caused the death of Carmello Carnestrale. It is your privilege to testify or not, just as you see fit. Any statement that you make now can be used against you at this or any future proceeding. Knowing this do you wish to testify? You are entitled to counsel and you can refuse to testify until such time as you have counsel." The defendant replied through the interpreter: "I am willing to testify without a lawyer." The coroner then examined the defendant by asking her fifty-two questions, or thereabouts, and receiving her answers through an interpreter. At the close of the inquest the coroner held the defendant and remanded her to the Tombs prison to await the action of the grand jury.
On January 27, 1914, the defendant was taken by the police officers from the Tombs to the office of the district attorney and before an assistant district attorney, with whom were the official stenographer and the official interpreter. The assistant district attorney administered the oath to her through the interpreter and then said to her: "Any answers that you may make to the questions put to you here may be used against you, and you need not testify unless you want to. Do you wish to testify in this proceeding?" Defendant said, "Yes." The assistant district attorney then subjected the defendant to an examination, lasting about two hours, which was taken stenographically and fills sixteen pages of the record before us. While the examination by the coroner and that by the assistant district attorney are unlike in several particulars, *Page 310 they contain, in effect, similar statements of the defendant that she stabbed Carnestraro. Each was received in evidence under the comprehensive objections of the defendant's counsel and his exceptions. I am of the opinion that therein there was prejudicial error.
First, as to the examination by the coroner. Sections 773 to 790 of the Code of Criminal Procedure relate to the functions of coroners. They are required to inquire (in certain counties with a jury) into the cause of any death suspiciously or violently caused; to compel the attendance of and to examine witnesses and cause their testimony to be reduced to writing and filed; to ascertain the persons chargeable with the deaths and issue warrants for the arrest of, if not in custody, and commit the accused persons to await the results of the inquisitions; to render decisions (or take the verdicts of juries) as to the causes of deaths and the guilty persons, for whom, if not in custody, they must issue their warrants to be served as prescribed in section 782. Section 783 is: "Proceedings of magistrate on defendant's being brought before him. The magistrate or coroner, when the defendant is brought before him, must proceed to examine the charge contained in the inquisition or information, and hold the defendant to answer, or discharge him therefrom in the same manner, in all respects, as upon a warrant of arrest on an information." By section 1571 of the Greater New York charter, coroners within that city possess the powers and perform the duties prescribed by the laws of the state relating to coroners.
In People v. Jackson (191 N.Y. 293, 297) we said: "While the chief duty of a coroner is to hold an inquest when a suspicious death has occurred within his county, by recent legislation he has been given the power of a magistrate in a limited class of cases. (L. 1887, ch. 321; L. 1899, ch. 404.) He can exercise that jurisdiction only when some person has been killed or dangerously wounded by another, but in that class of cases he has the *Page 311 right to issue warrants, hold examinations and commit or discharge the accused, the same as any of the regular magistrates." Although the record or the briefs do not so disclose, it must be assumed, in the absence of other empowerment, that the coroner caused the defendant to be present at the inquest, examined her and held her to await the action of the grand jury under and by virtue of the section 783. While within the definitions of the Code of Criminal Procedure (§§ 959, 147) the coroner was not a magistrate, the defendant when brought before him for examination, under arrest for the killing, was entitled under the section 783 and the judicial decisions (McMahon v. People, 15 N.Y. 384; Teachout v. People,41 N.Y. 7; People v. Mondon, 103 N.Y. 211; People v.Chapleau, 121 N.Y. 266) to the constitutional and statutory protection due a prisoner before a magistrate for examination. Such protection is prescribed by sections of the Code of Criminal Procedure. Section 196 is: "When the examination of the witnesses on the part of the people is closed, the magistrate must inform the defendant, that it is his right to make a statement in relation to the charge against him (stating to him the nature thereof); that the statement is designed to enable him, if he sees fit, to answer the charge and to explain the facts alleged against him; that he is at liberty to waive making a statement; and that his waiver cannot be used against him on the trial." Section 198 is: "If the defendant choose to make a statement, the magistrate must proceed to take it in writing, without oath, and must put to the defendant the following questions only: What is your name and age? Where were you born? Where do you reside, and how long have you resided there? What is your business or profession? Give any explanation you may think proper, of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation." Section 199 is: "The answer of the defendant to each *Page 312 of the questions must be distinctly read to him as it is taken down. He may thereupon correct or add to his answer, and it must be corrected until it is made conformable to what he declares to be the truth." Section 200 provides that the statement must be reduced to writing and authenticated in a manner it defines.
It is manifest from the facts already stated that the coroner did not in the examination of the defendant even substantially comply with the mandates of those sections or afford or secure to her the protection they imperatively direct should be given her. To hold otherwise is to judicially reconstruct them in substance and in effect. Their primary and direct purpose and intent are to fulfill and enforce the constitutional enactment that "No person shall be * * * compelled in any criminal case to be a witness against himself" (Constitution, art. 1, § 6), and which is reiterated in section 10 of the Code of Criminal Procedure in the words: "No person can be compelled in a criminal action to be a witness against himself." They are neither arbitrary rules nor rules for the purpose of obtaining from an accused person a confession which shall have upon his subsequent trial for the offense charged testimonial trustworthiness. Rather are they in aid and preservation, in the matter of such examinations, of the principle which is of the essence of constitutional liberty and security that any forcible and compulsory utterance of a man's own testimony for the purpose of convicting him of a crime charged against him is an invasion of his indefeasible right of personal liberty and security, — a process which leads to physical force, brow-beating and torture, cruel and inhuman to the innocent as well as the guilty and dangerous to the innocent. They are the legislative interpretation and application, in the point of such examinations, of the constitutional interdiction and create the point at which willingness and freedom in making statements end and compulsion begins. A statement made by a prisoner under a disobedience of *Page 313 or failure to conform to the substance and intent of their provisions is, as a matter of law, not voluntary; it is compulsory. In his trial upon the accusation, for which he is imprisoned, presented in an indictment, the question of the truthfulness or testimonial value of the statement is not involved and may not be considered by the court or submitted to the jury. The violation of the Constitution and the statute in obtaining it shall not be repeated by its introduction at the trial. As was said by Mr. Justice BROWN in Brown v. Walker (161 U.S. 591, 597): "So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment."
Section 395 of the Code of Criminal Procedure is: "A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed." The rule thus declared is not new or modern. It was of the common law and was embodied in the statutes of England from which our statute was derived. It is and must be subordinate and subservient to the Constitution and the statutes auxiliary to it. It is and should remain the established law that the statement of a person, charged with and under arrest for a crime, made at an inquest as to that alleged crime by a coroner, or at an examination after inquisition, through examination by the coroner in substantial transgression and disobedience of sections 783, 196 *Page 314 and 198 of the Code of Criminal Procedure, is, as a matter of law, compulsory and involuntary and is incompetent and inadmissible against the accused upon his trial for the crime. (People v. Molineux, 168 N.Y. 264, 331; People v.McMahon, 15 N.Y. 384; People v. Mondon, 103 N.Y. 211;People v. Kennedy, 159 N.Y. 346, 361; Adams v. State,129 Ga. 248; State v. Clifford, 86 Iowa 550; Wharton's Criminal Evidence [9th ed.], §§ 666, 668.)
I am unable to discern any conflict in the decisions of this court relating to the question. They have consistently upheld the rules as stated by Judge WERNER in People v. Molineux (168 N.Y. 264, 331): "What were the defendant's rights at the inquest? If the defendant, when he attended the inquest, was under arrest or formal accusation for the murder of Mrs. Adams, he was entitled to be informed of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings were had. (Code Crim. Pro. section 188.) This section is in terms applicable only to examinations before a magistrate. It is, however, merely a codification of the common law rule, and this court has held that when a person is called upon to testify at a coroner's inquest, convened to inquire into a crime, for the commission of which such person is then under arrest, or upon which he has been formally accused, he occupies the same position, and he has the same rights, as though he were before an examining magistrate. (People v. Mondon, 103 N.Y. 211.) So, on the other hand, if the person who testifies at the inquest does so simply as a witness, he has none of the rights or immunities of a party. This is the foundation of the rule which is now firmly established in this state — that when a person testifies at an inquest as an accused or arrested party, his testimony cannot be used against him upon a subsequent trial of an indictment growing out of the inquest, unless his testimony has been voluntarily given after he has been fully advised of all his rights and has *Page 315 been given an opportunity to avail himself of them. (People v.Chapleau, 121 N.Y. 267.) The logical and necessary corollary of that part of the rule stated is that when a person testifies simply as a witness and not as a party, his testimony can be used against him even though he is afterwards indicted and tried for the commission of the crime disclosed by the inquest. (Hendrickson v. People, 10 N.Y. 14; Teachout v. People,41 N.Y. 7.)" There is a substantial and cardinal distinction between the cases in which a person charged with a crime is compelled, either through a subpoena or an arrest, to attend a judicial investigation concerning the crime and his guilt, is directed to take the oath of a witness and the witness stand and then compelled to elect whether to be or decline to be examined, and that in which while present at the investigation he is informed of his right to make a statement if he desires and that his silence cannot prejudice him, or that in which he volunteers and requests to be sworn and have the status of the ordinary witness. In People v. Mondon (103 N.Y. 211, 220, 221) we said through Judge RAPALLO: "But I do not apprehend that this provision (section 395) was intended to apply to any but voluntary confessions, or to change the statutory rules relating to the examination of prisoners charged with crime. The Criminal Code retains the provisions of the Revised Statutes applicable to such examinations, which provisions are framed with reference to the constitutional provision that no person shall in any criminal case be compelled to be a witness against himself. (Art. 1, § 6.) In all the cases in which reference has been made to the subject, it seems to be conceded that an examination of a person arrested on a criminal charge, conducted in violation of the statutory provisions, would not be admissible in evidence against him on his trial for the offense. To take a prisoner before a magistrate, swear him, subject him to a minute interrogation as to the circumstances relied upon as evidence of his guilt, and then use such an *Page 316 examination on his trial, would be a departure from our system of criminal jurisprudence which should not be tolerated, and whether the investigation were conducted before a committing magistrate, or before a coroner's jury, could make no substantial difference, provided it appeared that a homicide had been committed, and the prisoner was brought before the inquest as an accused person, and the object of the inquisition was to ascertain his guilt. * * * When a coroner's inquest is held before it has been ascertained that a crime has been committed, or before any person has been arrested charged with the crime, and a witness is called and sworn before the coroner's jury, the testimony of that witness, should he afterward be charged with the crime, may be used against him on his trial, and the mere fact that at the time of his examination he was aware that a crime was suspected, and that he was suspected of being the criminal, will not prevent his being regarded as a mere witness, whose testimony may be afterward given in evidence against himself. If he desires to protect himself he must claim his privilege. But if, at the time of his examination, it appears that a crime has been committed and that he is in custody as the supposed criminal, he is not regarded merely as a witness, but as a party accused, called before a tribunal vested with power to investigate preliminarily the question of his guilt, and he is to be treated in the same manner as if brought before a committing magistrate, and an examination not taken in conformity with the statute cannot be used against him on his trial for the offense." In People v.Chapleau (121 N.Y. 266, 274) we said through Judge GRAY: "There [in the Mondon case] the examination before the coroner was excluded; not because of any principle of inadmissibility inherent in the evidence generally, but, because it had not and could not have been, in the nature of things, a voluntary confession. There the prisoner upon being arrested was brought before the coroner *Page 317 as a witness and examined. He was an ignorant man; was unattended by counsel and was not informed of his rights or privileges as to testifying. Judge RAPALLO reviewed this question of the admissibility of the examination of persons under oath before a magistrate, or coroner. He held that they must be excluded upon the subsequent trial for the offense, under circumstances, where the prisoner, having been arrested as a suspected murderer, was taken before the coroner's inquest or examining magistrate, and there examined on oath as to circumstances tending to connect him with the crime. His opinion was given with reference to the facts of the case before him, which showed that there was no confession; but an examination before a magistrate. He expressly held that section 395 of the Code was intended to apply only to voluntary confessions, and not to change the statutory rules relating to the examination of prisoners charged with crime." InPeople v. McGloin (91 N.Y. 241, 245) the coroner was acting in a private capacity "as a mere clerk to take down and prove the confession," and not in an official capacity.
Second, as to the examination by the assistant district attorney. This examination was not in fact made in a judicial investigation of the accusation against the defendant, but by a private person. (People v. Rogers, 192 N.Y. 331, 350.) That the examination was made under oath, or while the defendant was under arrest and accusation, or to the prosecuting attorney, or in answer to questions put to the defendant, or under those conditions combined did not render it inadmissible. (Cox v.People, 80 N.Y. 500; People v. Garfalo, 207 N.Y. 141;People v. Giro, 197 N.Y. 152.) The test is whether the statements made were voluntary, whether the defendant had any inducement to tell a falsehood against herself or felt compelled to speak for any reason when she preferred to remain silent. Was the condition of mind which made her willing to answer brought about by her own *Page 318 independent reasoning? The fact that a defendant may conclude it will be advantageous to him to confess rather than keep silent is immaterial, if conditions or circumstances are not created which tend to make silence some evidence of guilt and if his mental operations are free from and uninfluenced by any external inducement to falsify or invent. (People v. White, 176 N.Y. 331,349; People v. Rogers, 192 N.Y. 331, 346; Balbo v.People, 80 N.Y. 484, 499; People v. Chapleau, 121 N.Y. 266,273.) Without entering with particularity into the facts which raised an issue of fact as to the voluntariness of the statement or confession to the assistant district attorney, among which were the nativity, ignorance, inexperience and condition in life of the defendant, that she had been theretofore exhaustively examined by the coroner, that she without request or suggestion on her part was taken before and was attended through her examination by the police officers who took and were with her before the coroner, that the oath was administered to her and she was asked if she was willing to "testify in this proceeding," that she made no statement except under the similar conditions existing at the inquest and this proceeding, I state the conclusion that the trial court did not err in receiving the confession in evidence and instructing the jury to reject and disregard it, unless they found it was voluntarily made.
Third, it is urged that although there was error in receiving in evidence proof of the statements made by the defendant before the coroner, it was harmless, because the statements were substantially in the examination by the assistant district attorney which had been theretofore proven. From that view, I earnestly dissent. In People v. Koerner (154 N.Y. 355) we laid down relevant rules for capital cases, since loyally and wisely adhered to. An error which could by any possibility have influenced the minds of the jury is prejudicial and not harmless. A person on trial for his life is entitled to all the *Page 319 advantages which the laws give him, and among them is the right to have his case submitted to an impartial jury upon competent evidence. An error existing, the People, in order to nullify it, must show that it could by no possibility have prejudiced the defendant. The existence of the error establishes the defendant's claim to relief, and to sustain a verdict of conviction the People must prove that the error did not and could not have affected it. (People v. Corey, 157 N.Y. 332; People v.Maine, 166 N.Y. 50; People v. Mills, 178 N.Y. 274, 306.) The first duty of a court is not to punish crime, but to punish it through just and lawful procedure.
The People upon the trial deemed proof of the statements of the defendant before the coroner of supreme importance. The prosecuting attorney persistently met and sought to overcome the strenuously interposed objections of the defendant. The People sought aggressively and successfully by proof and summation to plant in the minds of the jury, not an incidental or adjunctive fact, but an independent and persuasive fact, to wit, that the defendant declared her guilt at different times and under different conditions, which they manifestly believed, and correctly, would tend to procure a conviction. The reasons for their belief were as sound after the examination had been used in procuring the conviction as when they proved it. Having convinced the court that it was material and competent and urged it upon the minds of the jury, they should not now be permitted to say that it was immaterial and harmless. In Bram v. United States (168 U.S. 532, 542) Mr. Justice WHITE, writing for the court, said: "The contradiction involved in the assertion that the statement of an accused tended to prove guilt, and therefore was admissible, and then after procuring its admission claiming that it did not tend to prove guilt, and could not, therefore, have been prejudicial, has been well stated by the Supreme Court of North Carolina, State v. Rorie, (1876) 74 N.C. 148: `But the State says *Page 320 this was a denial of guilt, and not a confession. It was a declaration which the State used to procure a conviction; and it is not for the State to say the declaration did not prejudice the prisoner's case. Why introduce it at all unless it was to lay a foundation for the prosecution? The use which was made of the prisoner's statement precluded the State from saying that it was not used to his prejudice.'"
The trial judge in his charge referred to the statements or "confessions," and directed the jury to determine under what circumstances they were made, and if under the influence of fear, produced by threats, they should reject them or either of them so made as of no weight. He read to the jury the part of the confession before the coroner descriptive of the stabbing, and from that before the district attorney a few sentences, adding slightly to the description. It may be safely and properly asserted that the evidence in proof of the defendant's guilt was, apart from the examinations, very slight.
The jury were to determine the probative weight and value of the "confession." This is not a case where a fact erroneously proven by incompetent evidence was subsequently proven by competent evidence and the incompetent evidence thereby rendered harmless. A question was, the extent of the belief and force that should be given to the statements of the defendant. It is common knowledge, and one has a slight understanding of the mental operations of himself or others who denies that the reiteration of a statement at a different time, under different conditions and circumstances and to different persons does appreciably enhance its credibility and evidential weight. The consistency in the repetitions, the willingness and the ability to reproduce the statement naturally and necessarily urge belief in its integrity and tend to beget conviction that it is true. Repetition creates confidence and conviction, as contradiction and repugnance create suspicion and doubt. An assertion *Page 321 that the knowledge by the jury that the defendant made the confession on January 9th under oath to the coroner at the inquest did not have and could not have had any influence or consideration in their determination as to the effect which they should give to the confession to the assistant district attorney seems to me inaccurate and unjust. It is well within a reasonable and just conclusion that, in the absence of that knowledge, they might and would have found, under all the circumstances and conditions, that the confession to the assistant district attorney did not possess the credibility justifying, in connection with the other evidence, the verdict and conviction. Assuredly, it is impossible for us to say that the confession of January 9th, which the People upon the trial deemed material and important, could not have added to any extent to the value and effect of the latter or influenced to any extent the verdict.
The jury were to determine whether or not the confession to the district attorney was voluntary. If they found it involuntary, they were to reject it. Upon this question, the illegal and incompetent proof of the confession of January 9th bore directly and illicitly. The finding that the first was voluntary would be an argument and ground for the finding that the second was of the like nature.
It may be that the verdict of the jury was based upon the illegal confession of January 9th. The court emphatically and forcibly brought it to their attention and instructed them to reject that of January 27th or that of January 9th if they found it was not voluntary. It was quite possible for the jury to have put that of January 27th wholly aside and found, under the charge, that that of January 9th was voluntary and truthful. The conviction of the defendant may, therefore, rest upon a statement of defendant, illegal and incompetent, which ought not to have been proved or received in evidence and which was in law and fact compulsory and involuntary. *Page 322
The judgment of conviction should be reversed and a new trial ordered.
WILLARD BARTLETT, Ch. J., CHASE and CARDOZO, JJ., concur with MILLER, J.; SEABURY, J., concurs in result in separate opinion; COLLIN, J., reads dissenting opinion, and HOGAN, J., concurs.
Judgment of conviction affirmed.