Defendant, after his arrest, was held by the police for about twenty-four hours before he was committed to jail (in default of very high bail) as a material witness. Then he was held for five days more before he finally confessed, and only then was he arraigned before a Magistrate. *Page 220 It is admitted that, during those periods, he was questioned for hours at a time, by a great variety of policemen, and by an assistant district attorney. Defendant says that he was threatened and severely beaten during those interrogations, but all that was denied by the police. No one, however, denied defendant's testimony that, after he had been ordered committed as a material witness, he was refused, by the police, permission to consult an attorney whose name had been given him by the Judge.
Despite all this, the Trial Judge in his charge never mentioned the right of defendant to a prompt arraignment on arrest, and never informed the jury that any illegal detention, if proven to the jury's satisfaction, was a factor to be considered by the jury in coming to its decision as to whether or not defendant's confession was voluntary. Worse than that, the trial court refused defense counsel's request that the jury's attention be called to section 165 of the Code of Criminal Procedure, which requires that a defendant must in all cases be taken before a magistrate without unnecessary delay, the court refusing also the associated request that the jury be told of its right, in determining the question as to voluntariness of confession, to consider defendant's detention before confession and any unnecessary delay in his arraignment. By that failure to charge and those refusals to charge, the jury was left completely ignorant of the settled law that any illegal withholding of arraignment is a sufficient basis for the throwing out, by a jury, of a confession obtained during such illegal imprisonment, as involuntary.
Indeed, the Trial Judge, in denying the request above referred to, inquired of counsel, in the jury's presence: "According to the testimony in this case the defendant was arraigned almost immediately after he made his confession, wasn't he?" If it is now to be the law that the statutory requirement of arraignmentpromptly after arrest is satisfied by arraignment promptlyafter confession, then the police have acquired the right to question a citizen, without bringing him before a magistrate, for any length of time necessary to wring from him an acknowledgment of guilt. The statute itself, as well as the decisions of this court, from People v. Rogers (18 N.Y. 9) down to People v.Valletutti (297 N.Y. 226), is directly to the contrary of that.
Perhaps the trial court, by its question above quoted, meant to say or suggest that, since defendant was being held as a material *Page 221 witness, and since such holding was under a court order and therefore legal, he could be questioned at will until he should break down and admit the crime. It is strange doctrine that a material-witness commitment, intended only to guarantee the presence of a witness at the trial, takes away from the "witness" all protection against third-degree questioning, as a suspect, and allows the police to hold him incommunicado, and deny him access to an attorney already assigned to him by a court. If this simple device, of treating an arrested person as a "material witness", legalizes any subsequent period of otherwise unlawful detention, it will indeed be a useful one for those who are impatient of the curbs of section 165.
This defendant was, as his own experienced counsel said in his summation speech, "covered all over with the leprosy of crime", but it is a wretch like that who needs these law guaranties of which we so often boast. It will be a bad day when the police become the judges as to who is, and who is not, entitled to those ancient rights.
Of course, it is almost an absurdity and a contradiction in terms to say that a confession obtained after a week of close, hard questioning is "voluntary". But it is the law of this State, despite sections 165 and 395 of the Code of Criminal Procedure, and section 1844 of the Penal Law, that the jury may hold to be "voluntary," admissions so obtained. Since delay and illegal detention do not in themselves invalidate extrajudicial admissions, the only protection left to a defendant who claims, as this defendant did, that he has been illegally held for the purpose of extorting a confession, is such a charge by the court as was requested here, and refused. Thus the charge here was plainly erroneous, and it should not be necessary to argue that the error was no slight or technical one (see Judge LEHMAN'S famous words in People v. Mummiani, 258 N.Y. 394, 399, 400).
Believing as we do that this major error of law requires a reversal, we do not comment on the other points raised by defendant.
The judgment should be reversed and a new trial ordered.
LEWIS, CONWAY, DYE and FULD, JJ., concur with BROMLEY, J.; DESMOND, J., dissents in opinion in which LOUGHRAN, Ch. J., concurs.
Judgment of conviction affirmed. [See 300 N.Y. 647, 715.] *Page 222