The court no doubt erred in not hearing defendant’s proofs on the competency of the proffered confession. But the real point here is, was the confession obtained by fear or threats so as to be inadmissible ? I think this was not shown; indeed it was negatived by defendant himself, who was asked: “Did you make a voluntary statement to the sheriff; whatever you said to him you said willingly, didn’t you ? * * * A. Why, yes.” The charge also submitted to the jury this question of obtaining the confession. Hence, as on the proofs there was not ground to exclude this confession, the initial ruling should not be regarded as reversible error. Therefore, under section 542 of the Code of Criminal Procedure I would affirm the conviction.
Thomas, J., concurred.
Judgment of conviction of the County Court of Westchester county reversed, and new trial ordered.