I dissent. I think that this judgment should be reversed because the court admitted against the defendant, and under his objections and exceptions, his sworn statement or affidavit made before the Deputy State Superintendent of Elections. I think that such ruling was error because this statement was obtained in violation of the defendant’s constitutional and statutory right not to be compelled in a criminal case to be a witness against himself. If the affidavit *397read in evidence came into existence in violation of such rights, then I think it was not evidence. Wigmore on Evidence (§ 2183) lays down the rule: “ Self-criminating documents, or other evidence, obtained from an accused person may be excluded, not because of the illegal nature of the search or other act by which they were obtained, but because the privilege against self-crimination involves their exclusion (post, § 2264)..” (See, too, State v. Squires, 1 Tyler [Vt.], 147.) The feature in this case "is, as I have said, that this affidavit, insisted upon as evidence, came into existence in violation of the defendant’s rights. The distinction is indicated in People v. Adams (176 N. Y. 351, 359). The court in that case would not notice the means whereby the books and papers were obtained, saying: “ The defendant was not sworn as a witness, nor was he required to produce any books or papers.” In accord is S. C., sub nom. Adams v. New York (192 U. S. 597, 598). The defendant was entitled to assert his privilege, “ if the evidence or his examination as a witness would either tend to incriminate him or disclose a link in the chain of testimony which might convict him of crime.” (People v. Priori, 164 N. Y. 466.)
The question is not affected by the fact that the State Superintendent of Elections is generically an administrative officer, or that the inquiry hereafter mentioned was in the interest of a proper registration. Both the Superintendent and his duly authorized deputies are by the statute clothed with extraordinary powers of visitation, inspection and interrogation. There is also the power to issue subpoenas in the name of the State Superintendent to investigate any matter within his jurisdiction. Disobedience to a subpoena is a misdemeanor, and refusal to testify under oath before such officer or his authorized deputy is likewise a misdemeanor, while he and such a deputy may administer such oath, and also oaths in the taking of any affidavit or deposition which may be necessary or be required by law or by any rule or regulation made by the Superintendent in connection with his duties. A false statement under such oath is declared a felony. This administrative officer then has the power of investigation into acts which may constitute felonies by taking and requiring evidence. Bougldy speaking, he may be likened unto an examining magistrate, save that he has no power of committal. But, on the other hand, if the affidavit used in the case at *398bar was evidence, it is not too much to say that he lias a power beyond that of such magistrate, in that he can in effect require, under the penalty of a misdemeanor, one under investigation for a crime to make a statement under oath, which tlie magistrate cannot do. (Code Crim. Proc. § 198.)
First. The proceeding in which the deposition was secured was a criminal case within the purview of these constitutional safeguards. It was an investigation to ascertain whether there had been an illegal registration which might constitute a felony; for the defendant had registered as a voter, and if he had knowingly made a false registra-tion he was guilty of a felony. (See Penal Code, § 41a.) Thereafter he was required to attend before the Deputy State Superintendent by subpoena. When he came he was told by the deputy that his office had received some information to the effect that there were three men registered from 413 Henry street who did not reside there, of whom the defendant was one. The deputy testifies that he was investigating the suggested illegal registration of the defendant at the time this affidavit was taken, and that he entitled it “ The People vs. Joseph J. Cahill (the defendant), Case 354.” In Counselman v. Hitchcock (142 U. S. 547, 562) it is said: “ This provision must have a broad construction in favor of the right which it was intended to secure and further: “ It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases, but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as' broad as the mischief against which it seeks to guard.” In People ex rel. Taylor v. Forbes (143 N. Y. 219, 228) the court, per O’Bkieh, J., after discussion of various cases, say: “ The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminad offense of which he may then'or afterwards be charged, or the sources from which or the *399means by which evidence of its commission or of his connection with it may be obtained.” (See, too, Wigmore Ev. § 2252.)
Second. The defendant at that time should not be regarded as a mere witness, but as one under investigation for a crime. He was called by a subpoena in consequence of information that he himself had made an illegal registration. He was informed of this fact by the deputy when he obeyed the subpoena. His case was under investigation when he was called upon to make the affidavit, and as I have said it was entitled “ The People v. Joseph Cahill, Case 354 ” (the name of the defendant).
Third. He was compelled to make the affidavit. He was brought before the deputy by a subpoena to which disobedience was a misdemeanor. (Laws of 1905, chap. 689, § 7.) If he had refused to give information he was likewise guilty of a misdemeanor. If he had refused to make the oath to his statement, he was declared guilty of a misdemeanor. (Ihid.) In People v. Courtney (94 N. Y. 490) the court say: “ The Constitution primarily refers to compulsion exercised through the process of the courts, or through laws acting directly upon the party, and has no reference to an indirect and argumentative pressure such as is claimed is exerted by the statute of 1869.”* In People v. Sharp (107 N. Y. 446) the court say : “ A person who yields from the necessity of obedience cannot be said to have the power of acting by his own choice. And where the law says he shall be compelled to attend and shall be compelled to testify, acquiescence is not election, and he is not one of whom it can be said he receives no injury from that to which he willingly and knowingly agrees and consents. There cari be no volition where there is neither power to refuse nor opportunity to elect.”
Fourth. He was not afforded complete immunity by section 41q of the Penal Code. That section makes an offender a competent witness against another person. It is “ the testimony so given ” that cannot be used in any prosecution, and it is any such “ person testifying ” who may plead the “ giving of testimony ” as a bar. It is to be noted that the 2d sentence is, “ The testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person testifying.” And the 3d sentence is, *400“ Any such person testifying shall not thereafter be liable to indictment, prosecution or punishment for the offense with reference to which his testimony was given .” There is a manifest distinction between the use of the testimony in that it is excluded from use in any prosecution civil or criminal, and the prosecution of the person, for that is limited to the offense ■ as to which he testified. The question up in this case is as to the use of the testimony, and hence if the immunity afforded by this section does extend to a person in the situation of the defendant at the time he made the sworn statement, it makes for him absolutely. If the section does not apply to such person, then it does not prevent his plea of invasion of his constitutional and statutory rights. In Counselman v. Hitchcock (supra, p. 585) the court say: “ It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so'broad as to have the same extent in scope and effect.” And further: “ We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States.” And in Taylor's Case {supra) the court say : “ It seems that in such cases nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness.” It is to be noted that the provision, section 712 of the Penal Code, refers explicitly to the examination of a person as a witness, and is exclusive of a statement made by one while under investigation which is directly directed, as in the case at bar, at his commission of a crime. If it were not thus limited and were applicable to this case, then one could be convicted of a crime with the help of self-inc.riminating evidence obtained when he was under investigation looking to his commission of another crime.
It cannot be urged that the defendant by omitting to assert his rights at the time of making the affidavit waived them, although that view is sometimes advanced in other jurisdictions. (People v. Sharp, 107 N. Y. 445.) Even if he could be held to a waiver, the waiver must be limited to that proceeding, and lie was not thereby precluded from taking his objection at the trial of this indictment. (Wigmore Ev. § 2276, subd. 4, and authorities cited.)
*401On the general principle here discussed, I need but refer to People ex rel. Taylor v. Forbes (supra) .and Counselman v. Hitchcock (supra), disapproving People ex rel. Hackley v. Kelly (24 N. Y. 74). It seems to me, then, that the evidence sought to be introduced came into existence by violation of the constitutional and statutory provisions declarative of the maxim “ JVemo tenetur seipsum prodere ” and could not be regarded as legal evidence competent against the defendant. (See, too, State of Minnesota v. Froiseth, 16 Minn. 296.) It is not an answer to these legal objections to say that the defendant need not have committed perjury; that if he had told the truth his statement would not have been evidence to prove his illegal registration, for the question is whether his statement, when thus compelled from him, is competent evidence against him to prove the crime of perjury. It is urged that this conclusion means that none can be convicted of such a perjury. If this be so, then the question is whether the constitutional and statutory provisions must be nullified or modified in order that this statute of 1905 may be enforced by establishing perjury prescribed by it perforce of a compulsory swearing to a compulsory statement elicited from the suspect himself as prescribed by it. A statute which can afford such a result as was worked in this case goes far in inquisition. As I have said, even on examination before a magistrate the defendant’s statement is made without oath. (Code Crim. Proc. § 198.) This is not the question of a perjury assigned to an incompetent witness as in Chamberlain v. People (23 N. Y. 85), and the case upon which it was decided (Van Steenbergh v. Kortz, 10 Johns. 167), but the point is whether this statemónt was competent evidence against the defendant on this trial.
Milleb, J., concurred.
Judgment of the County Court of Kings county affirmed on reargument.
See Laws of 1869, chap. 678.— [Rep.