(dissenting.) The question raised by the exception taken by the counsel for the plaintiff in error upon the trial is, whether the testimony given by him before the coroner upon an-inquest held upon the body of his, plaintiff’s wife, was competent evidence against him upon the trial of an indictment against him, for her murder. As a foundation-for the objection to the testimony, the counsel for the plaintiff proved that he was duly served by the'sheriff with a subpoena, requiring him to attend the inquest as a witness; that while so in attendance and before being sworn, he was asked by Edward Daily, why he was'there without counsel, and. was told by him-that it was charged that his wife had been poisoned; that he was the-man that was'going to be arrested for tire-crime. The following evidence was given after the plaintiff’s testimony upon the inquest had been received upon the trial, and the exception thereto taken, but it was agreed upon the argument that it should be-regarded as given prior thereto. The coroner, who presided at the inquest, testified that he apprised Teach-out, the plaintiff in error,’-that he had a right to refuse to testify ; that there were suspicions of foul play; that there were rumors that-his wife caine to her death by foul means; and that some of these rumors implicated him; that Teachout said he had no objections to telling what he knew about it; that this occurred before Teachout was' sworn. This was equivallent to the coroners telling Teachout that he was accused of the murder of his. wife. From the testimony it appeared o that Teachout was told at the inquest, just before being sworn, by a private person, that he was accused of having poisoned his wife -and was going to be arrested for it, and by the coroner holding the inquest, that he was accused of having murdered her. The question is whether the testimony, subsequently given by him upon the -inquest, was admissible as evidence against him upon his trial for her murder. This question was so fully discussed in this court in the case of The People v. Hendrickson, 10 N. Y., 13, and The People v. McMahon, 15 N. Y., 384, and the authorities, both English and American, so thoroughly examined, "that it would be *15superfluous to again go over the same ground. The first was decided by a divided court; the last with the concurrence of all the judges who heard the argument, three of them being the same who participated in the decision of the former. All that is necessary in the present case is to deduce from these two cases the principles settled thereby, and apply such principles to the present case, unless further consideration should show a conflict therein, or that they were so far unsupported by principle and authority as to render it the duty - of the court to depart therefrom in determining the present case. It is a little difficult to determine precisely the principle upon which the case of Hendrickson was decided, partly on account of the conflict in the opinion of the judges as published, but more in consequence of the state of facts upon which the question arose. Hendrickson’s wife retired to bed with him at about ten or eleven o’clock in the evening; at about two at night he gave an alarm, and his wife was then found dead in the bed. A coroner’s inquest was held. It did not appear, at the time he was sworn, that any suspicions were entertained that any crime had been committed, and, of course, no suspicion that any poison had been procured or used in effecting her death. Under these circumstances Hendrickson was sworn. The dissenting judges assumed that he must have known, from the questions put to him while testifying, that a suspicion was entertained that he had caused her death by administering poison to her, and upon this ground were of opinion that his testimony was not competent evidence against him upon his trial for murder. It does not appear from the prevailing opinion, that the majority of the judges concurred with those dissenting in the assumption of any such knowledge by Hendrickson, but from portions of the opinion rather the contrary. The judge says Hendrickson was treated in every respect like the other witness. At the time of his examination no circumstance had been developed warranting a suspicion against him. The postmortem examination did not take place until the next day; and it was not Until the second day after his testimony before *16the coroner’s inquest, that he was arrested under a warrant issued, not by the coroner, hut by a police justice of Albany. Again, after naming authorities, the judge further says, independent of authority, I do not see how, upon principle, the evidence of a witness, not in custody, and not charged with crime, taken either on a coroner’s inquest or before a committing magistrate, or a grand jury, could be rejected. Further on he says, nor can the exclusion of the evidence depend upon the question, whether there was any suspicion of the guilt of the witness lurking in the heart of any person at the time the testimony was taken. That would be the most dangerous of all tests, as well because of the readiness with which proof of such suspicion might be procured, as of the impossibility of refuting it. Besides, the witness might have no knowledge of the existence of any suspicion; so that his mind could not be affected or his testimony influenced by it. It is only when he is charged with crime and examined on such charge, that there is good reason for treating him as a party to the proceeding. These extracts from the opinion, with the exception of the last sentence, would show that the judge regarded the case as one simply where the witness had been sworn without any knowledge that he was accused of having criminally caused the death. Viewed in this light, the case is entirely consistent with that of McMahon’s. If, in the last sentence, the judge used the words, charged with crime and examined on such charge in the restricted sense of a charge, judicially made against the witness and his judicial examination upon such charge, the case is in direct conflict with that of McMahon, as will hereafter be seen. Besides using the words in that sense, they would rarely have any application to inquests held by coroners. These proceedings are not founded upon any charge against a specific person, nor is the examination of any such person any part thereof. True, they may and often do result in making a charge against and leading to the arrest and commitment of one or more persons. I am inclined to think that the judge used the words *17charged with crime in the popular sense¿ that is, as including an accusation of guilt seriously made by any individual to the knowledge of the witness, as well as a charge legally made to a judicial officer; and that the examination upon such charge includes the case of a witness knowing that he is accused, and testifying with such knowledge. So far as such witness’ testimony is concerned, it will be governed by the same considerations as though permitted to testify upon his examination of the like charge judicially preferred against him. The witness would have the same inducement to shape his evidence so as to shield himself from the charge in the former as he would in the latter, and his testimony would be equally unreliable. His testimony may be equally voluntary, using that term in the sense of its being given with the free assent of the will of the witness. The fact that I am right as to the sense in which the words were used by the judge, is strongly confirmed by the fact that the judgments in both Hendrickson’s and McMahon’s cases were concurred in by two of the same judges. Neither of these could have supposed that there was any conflict in the principle upon which they were decided. My conclusion is, that all that can fairly be claimed to have been decided in Hendrickson’s case, is that, where the testimony, upon the inquest upon the body by the coroner, is given by a witness having no knowledge that he is accused of .any crime in causing the death, such testimony is competent against the witness upon his trial for the murder of the-person upon whose body the inquest was held. In McMahon’s case, it was held by this court that the testimony given upon an inquest by a coroner, upon the body of a deceased person, by a witness who had been arrested by a constable, without warrant, on suspicion of being the murderer of such person, was inadmissible against him upon his trial for such murder. An examination of the able, and exhaustive opinion in the case, shows that this was so held for the reason that testimony so given is too unreliable and unsafe for consideration in the investigation of truth. There was no pretense but that the testimony was given voluntarily, in the sense of being given *18with, the free assent of the will of McMahon. There had been no charge judicially made against him. The inquest upon the body was in ho sense the examination of a charge of murder against him more than of any other person. His situation, in giving testimony, differed from that of other witnesses sworn upon the inquest, in this respect only: he testified with a knowledge that he was suspected of the crime of murdering the deceased, while the others did not. It was this knowledge, not his arrest by the constable, that rendered his testimony incompetent, and it was only so upon the principle above stated. 'It was insisted that it was incompetent, for the reason that no one is bound to accuse himself. A little consideration will show that this principle has no application to_the case, for the reason that it does not appear that any means whatever, certainly none of a coercive character, were used to induce him to testify. His arrest had no connection with him as a witness, or with his testimony, except only to inform him that he was suspected of the crime. How does this case differ from the present ? I can see none in principle. In the present case, Teachout was asked why he was there without counsel, and told that it was charged that his wife had been poisoned, and that he was the man that was going to be arrested for it; and by the coroner, upon his being called as a witness, that he had a right to refuse to testify; that there were rumors that his wife came to her death by foul means, and that some of those rumors implicated him. Surely this was conveying to him as strong a conviction that he was suspected of the murder as the arrest by the constable did to McMahon. McMahon was, in fact, arrested. Teachout was told that he was going to be arrested. Had the constable arrested McMahon upon any other charge, his testimony before the coroner would have been admissible. There was nothing in his office, or in the fact of the arrest, that, would have excluded it. It was the charge against him, and knowledge thereof communicated by the arrest, that had that effect. But it is said that if Teachout, in the absence of promises or threats to induce it, but with full knowledge that *19he was suspected of the crime, made a statement, without oath, similar to his testimony before the" coroner, such statement would have been competent evidence against him upon his trial. This is true; and it is equally true that such statement, though made while in custody, upon a warrant issued upon the same charge, would have been admissible against him upon his trial. (People v. Wentz, 37 N. Y., 303, and cases cited in opinion.) If this be so, it is emphatically .asked, why should the fact that it was made under the sanction of an oath exclude it 2 This leads to an inquiry into the soundness of the principle upon which The People v. McMahon was decided. That principle is, that a party accused of .a crime and knowing of the accusation against him, is less reliable when sworn as a witness and giving testimony upon an inquiry as to the crime itself than he is in making a statement in relation to such crime, when left entirely free to state as much or little in relation thereto as he may choose. To remark upon such circumstances and in such order as he thinks proper; in short, to exercise an independent control over what and all he says, unembarrassed by the apparent authority of the officer before whom the examination is had, and by the almost exclusive control of the person conducting the examination, as to the order in which he shall testify, as to the facts and circumstances of the points to which he may speak, and the extent to which he may proceed thereon. Experience shows that statements without oath, made by innocent persons overwhelmed with an accusation of serious crime, require the closest scrutiny and care in their consideration. The books are full of admonitions from the wisest and best of judges in this respect. The cases are numerous where, under such circumstances, innocent persons resort to falsehoods, and often to those most absurd, with a view to shield them from the accusation. This motive to utter falsehood is so strong, that if there be added thereto threats to overawe or promises to excite hope, the confession is rendered incompetent, upon the ground that no safe reliance can be placed upon its truths. The ground upon which *20McMahon’s case was decided was, that calling a party before the officer administering the oath to him, his examination as a witness by other persons, while overwhelmed with the idea that everything he said or omitted to say, might have the consequence of extricating him from or of convicting him of the charge, would be as powerful an inducement to utte* falsehood as any threats or promises made by a private person. I think, indeed, much more so. I should concur fully in the principle of McMahon’s case, were it a question now here for the first time. I think the circumstances under which Teachout gave the testimony in question, were such, that no safe reliance could be placed upon it. If innocent, he knew he was accused and in imminent danger of a prosecution. The most powerful motive was presented to his mind to tell some story, whether true or false, to shield him from the charge. In this state he was called as a witness, and, upon presenting himself, was told by the coroner that he was suspected and might or might not testify, as he chooses. He is without counsel; and the reasoning most natural for him, in his excited state, was that if he refused to testify, every one would think it was because he could not on account of his guilt. I must therefore testify. He accordingly said, he was willing to tell all he knew. Would his situation, in respect to the reliability of his testimony, have been any different had the coroner told him upon his being called, it would be better for him to testify to all he knew. And yet, had this occurred, the testimony would have been clearly incompetent. Why ? The answer of the counsel for the people might and probably would be, that the testimony was not voluntary. But why does the law exclude confessions not voluntarily made ? The law is founded upon reason, and in its pursuit of truth never rejects any reliable means of attaining it. The humanity of the common law restrains a resort to torture or any coercive means to induce a confession; but the reason why it excludes a confession, if so obtained, without any of its agency, is not that it was so obtained, but because no reliance can be placed on it. That the party under such cir *21cumstanees is quite as likely to state what is false as what is true. That this is the real reason for the exclusion will he more clearly seen when applied to a confession obtained by promises of favor. It cannot be claimed that the latter is excluded upon the ground that no one is bound to accuse himself. If this was the ground as to the latter, it would in its general application exclude every confession made by a party on trial. That reason had its origin in the aversion of the common law to torture, which was sanctioned by the civil law. It has nothing to do with the competency of a confession already made as evidence against the party making it. My conclusion is that the Oyer and Terminer erred in receiving the testimony in question, and that for that reason the judgment of that and of the Supreme 'Court affirming it, should be reversed and a new trial ordered.
Hunt, Ch. J., Mason, James, Murray and Daniels, JJ., concurred with Woodruff, J., for affirmance.
Lott, J., was with Grover, J., for reversal. He could not distinguish, on principle, the case from People v. McMahon.
Judgment affirmed.