On March 17th, 1927, the defendant Doran was taken in custody by the police of the city of Albany. On March 19th Floyd Damp was taken in custody. Later in the same day Theodore Harrington was apprehended. All were lodged in police stations in the city of Albany. No warrant had previously been issued for the arrest of any of these men, no charge was pending against them. They were not arraigned before a magistrate till March 25th. The police, however, had some information which led them to believe that these *Page 430 three men had participated in the murder on November 6th, 1926, of Raymond E. Jackson.
The police questioned Damp and Harrington the day they were arrested. Both at first made stout denial of any participation in or knowledge of the crime. Damp and Harrington were brought face to face. Harrington denied acquaintance, but Damp after continued questioning made a statement to the police and to Mr. John T. Delaney, the assistant district attorney of Albany county, in which he confessed that Doran and Harrington and he had planned and carried out a robbery in Jackson's place of business and that during the commission of the felony Doran had shot Jackson.
At the direction of the assistant district attorney, the police of the city of Albany took Damp to the police station in the city of Watervliet. Then they took Harrington to the same police station. The assistant district attorney also went there to take a statement from Harrington, when Harrington should be ready to talk. Harrington still denied acquaintance with Damp. At the station house Damp fainted. Peacock, the assistant chief of police of Albany, went out with a man who happened to be in the Watervliet station house and obtained a bottle of whisky. Harrington was informed that Damp had fainted. Peacock gave some of the whisky to Damp, who had fainted after being questioned by the police, and some of the whisky to Harrington, who had not fainted but who was still being questioned by the police. It was near midnight on Saturday night. Harrington had been informed that Damp had made a confession which accused him and Doran of guilty participation in the Jackson murder. Still Harrington denied acquaintance with Damp. Then Peacock directed the other police officers to withdraw from the room and to leave Harrington and himself there alone. The room was a large cell, twelve feet by twenty feet. It was used at times by the Watervliet police as *Page 431 a kind of gymnasium. It contained athletic paraphernalia, including boxing gloves. Harrington and Peacock were alone in the room for five minutes. During those five minutes Harrington was induced to abandon his previous denials and to make a statement to Mr. Delaney in which he admitted that Damp, Doran and he had joined together in robbing Jackson, and were guilty of murder. Only Harrington and Peacock know what was said or done during the five minutes they were alone in the room in the Watervliet police station. Their testimony on the witness stand is wide apart. We are not called upon to decide between them. In spite of Harrington's confession of guilt which was admitted in evidence, the jury has acquitted Harrington.
After Harrington had made his statement to Mr. Delaney, Doran was brought from Albany to the police station at Watervliet. He was taken to the doorway of the room where Harrington was detained. Mr. Delaney testified: "At the doorway I said: `Harrington, is that the Doran that was with you at the Jackson affair?' and he said `Yes,' and I said, `All right, take him out.'" Mr. Delaney did not question Doran at that time, as he might have done. He knew that Doran was not yet ready to admit complicity in the crime. He waited in the police station till Doran was ready; he waited till the small hours of the morning while Doran was detained by police officers in the same room in which Harrington had been induced to make his confession.
Perhaps at this point it may be well to quote verbatim from the record some of the questions put to Mr. Delaney and the answers he gave, instead of summarizing Mr. Delaney's testimony: "Q. And what direction did you give at that time, if any, regarding the defendant Doran? A. None. The police were doing their work. Q. The police were doing their work? A. Yes. Q. And you were simply there to — A. (Interrupting) I was taking it easy. Q. (Continuing) — to take the statements? *Page 432 A. That is it. Q. And you don't know what happened to those fellows in that room, of course? A. No." When the police had finished "doing their work" Doran made a statement to Mr. Delaney confessing that he had killed Jackson.
What was the "work" which the police did in that room? The jury might well refuse to accept Doran's testimony that he was brutally beaten there. The assertion of a confirmed criminal, a man of evil character and associations, should not weigh heavily against the denial by officers of the law. The jury could not, however, reasonably disregard the testimony of Peacock himself that in that room in the Watervliet police station he put on aboxing glove while he was persuading Doran to confess. This record presents squarely the question whether a confession obtained under these circumstances is admissible in evidence against the accused.
Section 395 of the Code of Criminal Procedure provides that "a confession of a defendant * * * can be given in evidence against him, unless made under the influence of fear produced by threats * * *." When evidence is offered, the trial judge must decide whether or not it shall be admitted, but where the question of whether a confession is inadmissible because made under the influence of fear produced by threats depends upon the determination of a dispute of fact, the trial judge may under the practice prevailing in this jurisdiction admit the confession and then submit the question of fact to the jury under proper instructions. (People v. Kennedy, 159 N.Y. 346; People v.Brasch, 193 N.Y. 46; People v. Randazzio, 194 N.Y. 147.) In this case the trial judge so ruled. It may be conceded that this ruling presents no reversible error if either the judge or jury could reasonably hold that the confessions were not made under the influence of fear produced by threats. It should require no argument to show that a trial judge may not admit in evidence a confession where reason and common *Page 433 sense dictate that from the undisputed facts the contrary inference must be drawn, or allow the jury to pass upon a question of fact which is illusory and unsubstantial. In this case I believe that such error clearly exists. In my brief statement of facts I have tried to exclude all facts which are disputed or from which conflicting inferences might be drawn.
Doran, I have said, is a confirmed criminal, a man of bad character and evil associations. His testimony that he was brutally beaten by the police till he was bruised and sore is met by the denials of the police officers whom he accuses, and by Mr. Delaney, who has gained an honorable reputation by honorable public service. In part his testimony is also inferentially contradicted by Dr. Vander Veer, an eminent physician of Albany, and perhaps by William T. Whittemore, a reporter of the SundayTelegram. It is said that the court and jury could not find that the confessions were made under the influence of fear produced by threats without finding that the testimony of all these men was false. Not so do I view the testimony and the question presented to us. Against the assertion of a man like Doran, the jury might with entire confidence accept the denial of any one of these men. Indeed, the jury, in this case, would be justified in rejecting the testimony of Doran even where it is not contradicted, for willful falsehood so permeates that testimony that it is wholly unreliable. Doubtless the jury might reasonably find that Doran is not only a confirmed criminal unworthy of credence but that, like other criminals who rob unarmed men at the point of a pistol, he is at heart a coward and when on trial for his life would tell any story that might be helpful. The court and jury might not, however, disregard the logical inferences that must be drawn from the undisputed testimony, nor discard common sense in considering the effect of that testimony. *Page 434
However depraved Doran may be, he yet is entitled, when charged with murder, to a fair trial conducted in accordance with those safeguards and guaranties which by law and tradition are regarded as necessary for the protection of the accused. The police take this man in custody without warrant. For over a week they hold him without formal charge against him and without arraignment before a magistrate. This court has pointed out that the practice "of detectives to take in custody and hold in durance persons merely suspected of crime in order to obtain statements from them before formal complaint and arraignment, and before they can see friends and counsel, is without legal sanction." Though such circumstances do not per se make the reception of the statements in evidence illegal as matter of law, "they are properly to be considered by the jury in determining the voluntariness of the statements." (People v. Trybus, 219 N.Y. 18. ) The records in many other cases that have been reviewed by us since that case have shown us that the police have often disregarded the admonition of the court and disregarded the express provisions of section 165 of the Code of Criminal Procedure. In this case the police officers admit that they knew that they were acting without right. They then, at the direction of the assistant district attorney, take these men to the police station in Watervliet. Certainly no claim can be made that the district attorney may lawfully direct the police of one city to take men held in custody without warrants, against whom no formal charge was then pending, to another city in the same county. That surely is a circumstance which may at least be considered when other circumstances tend to show that a confession there made was extorted by fear produced by threats.
The significance that should be attributed to such directions may depend upon the other circumstances and upon the reason which may have inspired the district attorney to give such unusual, and at least technically *Page 435 unlawful directions. The assistant district attorney was precluded upon objection by defendant's counsel from testifying to the operation of his mind. He was not asked for facts upon which an inference of the reason for the direction might with some confidence be based. Even so, Judge CRANE has drawn an inference which he deems sound and acceptable. I shall not attempt to demonstrate that such inference is without reasonable basis. Whatever may have been the reason why Doran and Harrington were held in Albany and removed to Watervliet before they were taken before a magistrate, the fact remains that in a cell in the police station in Watervliet the police "did their work" and induced these men to make a statement of their own guilt of murder to an assistant district attorney waiting through the night to take such a statement after the police had successfully finished their work.
Doubtless the police and the assistant district attorney were actuated solely by their desire to bring just retribution upon men who they felt sure were guilty of a heinous crime. If they erred, it was through excess of zeal in the performance of their public duties, but the picture of what took place in the police station at Watervliet, even as drawn from the testimony of the People's witnesses, and I have considered no other, is not one upon which this court should look with equanimity.
We give lip service to the rule that no accused may be compelled to incriminate himself. We point with pride to the proceedings in our public court rooms where the accused is scrupulously warned of his constitutional rights and given opportunity to consult counsel before he avows his guilt. Here the accused was tried before a just and learned judge, who in all respects conducted the trial in manner which calls for admiration; but the jury was permitted to receive in evidence a confession of guilt obtained when the accused was held in custody without counsel, and without arraignment on any charge, *Page 436 cowering in a cell in the police station where inducement to avow guilt was afforded by a police officer wearing a boxing glove, and we are asked to assume that there were no threats and no violence because the defendants, while still confined in the same manner, made no complaint to a physician and to a reporter who questioned them thereafter in the presence of one of the policeofficers. I may assume that the entire testimony of actual violence given by these defendants is untrue. I am willing to draw every reasonable inference against the accused, but the evidence which I have set forth reasonably allows, in my opinion, only the inference that the confession was produced by fear induced by threats implied if not expressed, and that this fear continued to operate during the succeeding days when the police held the accused in custody without taking them before a magistrate as required by law.
We are often told that the courts should not by technical rules hamper the police in their constant warfare with the enemies of society. Doran, it is urged, is a guilty wretch who should not be given a new trial because the zeal of the police and the prosecuting officers have outrun their discretion. Such considerations must be given their due weight, but on the other side of the scale in this case are more weighty considerations. No one can suppose that the Legislature would, even if it had the power, amend the law so that the police might upon suspicion hold an accused without counsel and without arraignment before a judge until they had extorted a confession. No one can suppose that the law should permit a confession if extorted by threats to be received in evidence or made the basis of a finding of guilt. The courts should not hamper the police by technical rules nor reverse a just conviction because of technical error, but the courts cannot sanction disregard of the substantial rights of an accused. If Doran is guilty he can be convicted before another jury without introducing in evidence his alleged *Page 437 confession. The courts may not approve the punishment even of the guilty, if guilt is established, by means which are destructive of the fundamental rights of the accused. We have long ago abolished the rack and thumbscrew as a means of extorting confession; the courts cannot sanction the introduction of the boxing glove in their place.
The judgment should be reversed and a new trial ordered.
POUND, KELLOGG and O'BRIEN, JJ., concur with CRANE, J.; ANDREWS, J., concurs in memorandum in which POUND, CRANE, KELLOGG and O'BRIEN, JJ., concur; LEHMAN, J., dissents in opinion in which CARDOZO, Ch. J., concurs.
Judgment affirmed.