It is difficult to understand, and unsafe to construe, a statute without having in mind the law upon the subject existing at the time the statute was passed. Since Warickshell’s Case (1 Leach, 263), the sole test of the admissibility of confessions in countries wherein the common law prevails is, were they voluntary ? An analysis of the reported cases would be unprofitable and simply show: (1) That prior toBaichy’s Case (2 Denison Or. Gas. 430), the courts presumed confessions to have been involuntary, and inadmissible from slighter causes, than since that case. (2) That the confusion in the cases has arisen from the courts assuming that the physical facts and inducements, which were sufficient to render a prior confession involuntary, should control the decision of every subsequent case resting upon like or similar facts, without regard to the character or intelligence of the individual; while, on the other hand, courts have applied the rule (which has remained unchanged since the case first cited) to the facts of each case, recognizing the true rule, that whether a particular confession was voluntary was a question of fact rather than of law. It is apparent that circumstances and surroundings which would unsettle and coerce the judgment of one person, rendering his confession involuntary, would produce no such result in the case of another differently constituted and trained.
The following are the leading cases in this State which bear directly upon the question under consideration:
In Hendrickson v. People (10 N. Y. 13), the defendant was examined under oath before a coroner in respect to the death of his wife. When examined he was not under arrest or under suspicion. Subsequently he was convicted of her murder, and it was held competent for the people to prove what he had testified to before the coroner. Four of the judges of the Court of Appeals holding that the evidence was properly received and three dissented.
*121In People v. McMahon (15 N. Y. 384), the defendant was arrested without a warrant, upon suspicion of having murdered his wife. He was taken before the coroner, who was holding an inquest, and examined under oath He was afterwards indicted and tried for the murder. Upon his trial his testimony given before the coroner was read in evidence against him. The Court of Appeals reversed the judgment, holding that the statements were not voluntary. All of the judges concurred in this judgment, except two who did not hear the argument.
In People v. Wentz (37 N. Y. 303), McMahon’s Case was commented upon and approved, and it was held that the test of admissibility of admissions was whether they were voluntary.
In Teachout v. People (41 N. Y. 7), the defendant, who was not under arrest, but was under suspicion of having murdered his wife, was examined before the coroner as to the circumstances of her death. Before he was examined the coroner informed him that it was rumored that he had caused her death and that he was not obliged to testify. He said he had no objection to telling all he knew. 41 N. Y. 9,10. Subsequently he was convicted of the murder of his wife. Upon the trial his testimony given before the coroner was proved against him by the people. The Court of Appeals held that the statements were voluntary and competent; all of the judges concurring except two.
In discussing Hendrickson v. People and McMahon v. People, it was said: “ In the former case (Hendrickson’s) the declarations were held admissible, in the latter (McMahon’s) they were held .incompetent The precise distinction by which the latter is distinguished is that in the latter case the prisoner stood before the coroner as a party in fact charged with the crime, and was there subjected to an examination on oath touching his own guilt or innocence. The coroner was in such case substantially in the place of an examining magistrate, and the fact that the prisoner was held under an arrest made without warrant could not make his protection against such an inquisition less imperative.”
The general rule applicable to judicial confessions is well stated by Wharton, and is fully sustained by the cases cited in. <• *122the note to the section quoted: “ But the testimony of • an accused party, taken as such, is not admissible, when such accused party is put on his oath and sworn and, examined., This rule is founded upon the unreliable, as well as the inquisitorial character of such statements; and, therefore, where a man, having been arrested by a constable without warrant, upon suspicion of having committed murder, was examined as a witness at the coroner’s inquest, it was held that the statements thus made by him were not admissible against him on his trial for the murder. The same rule obtains where the defendant is compelled to answer, under oath, questions by the committing magistrate.” Whart. Crim. Ev. 668; see, also, 1 Greenl. Ev. 13th ed. 225; 1 Ph. Ev. 4th Am. ed. 560; 3 Russ. Crim. 5th ed. 475.
The authorities above cited do not directly bear upon the constitutional question about to be discussed, but they show that the rule applied upon the trial of this case, does not prevail in any country governed by the principles of the common law.
Section 395 of the Code'of Criminal Procedure provides: “A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but it is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.”
The word “ confession,” signifies an admission of a guilty par- " ticipation in the commission a crime. People v. Strong, 30 Cal. 151; People v. Parton, 49 Id. 632; Step. Dig. of Ev. art 21. ’This is also the sense in which the word is generally used. Within this meaning of the word the defendant made no con.fession. But assuming that the word “ confession,” as used in the section quoted, embraces admissions and statements made in the course of a denial of guilt, still, the question remains, whether the admissions and statements were voluntarily made. 'Two kinds of confessions are described in the section: (1) Judicial confessions, made in the course of judicial proceedings. (2) Extra-judicial confessions, made to private persons. In this *123•case we are dealing with judicial confessions and admissions, and the decisions and rules relating to extra-judicial confessions will mot be specially considered.
The constitution provides: “Mo person shall be compelled, in any criminal case, to be a witness against himself.” Const. art. 1, § 6; Code Crim. Pro. § 10. The question arises, whether the action of the coroner and of the trial court violated this provision ? If the result is prohibited, the fact that it was brought -about by the action of two. courts instead of one, while acting in the same matter, does not make the result less illegal.
The Court of Appeals, in discussing the constitutionality of the law, permitting defendants in criminal cases to testify in their -own behalf, said: “The constitution primarily refers compulsion exercised through the process of the court, or through laws acting directly upon the party, and has no reference to an indirect argumentative pressure such as is claimed is -exerted by the statute of 1869.” People v. Courtney, 94 N. Y. 493; 1 N. Y. Crim. Rep. 573.
In People v. Hackley (24 N. Y. 83), it is said: “ It is, of ■•course, competent for the Legislature to change any doctrine -of the common law, but I think they could not compel a witness to testify on the trial of another person to facts which would prove himself guilty of a crime without indemnifying .him against the consequences, because, I think, as has been ■mentioned, that, by a legal construction, the constitution would "be found to forbid it.” The discussion of this question in the rcase last cited, is full, clear and instructive.
If the constitution prohibits “compulsion to be exercised ■ through the process, or through laws acting directly upon the parties,” and prohibits the Legislature from passing a statute ■ “ compelling a witness to testify on the trial of another person .to facts which would prove himself guilty of a crime without .indemnifying him against the consequences,” it seems to me, •that, admitting in evidence testimony which a prisoner was re- . quested to give in a criminal proceeding against himself, is also prohibited, and the question remains, notwithstanding the section of the Code quoted, was defendant’s testimony before the -coroner voluntary?
*124The record in this case discloses that the defendant was an» Italian laborer, having an imperfect understanding of the English language. He was under arrest charged with murder, A coroner’s inquest was being-held. The prisoner was taken by the sheriff, in whose custody he was, and whose power he - could not resist, before the coroner’s inquest then engaged in an, investigation against himself. He did not go there voluntarily.. He was sworn by the coroner as a witness, and presumably in the usual form, to tell the truth, the whole truth and nothing but the truth, in the matter under investigation. The prisoner - was without counsel, and without means to employ counsel He was not informed that he could not be compelled to be a witness against himself, nor that he need not give an answer which would tend to criminate himself. He was then questioned.. by the district attorney and also by the coroner. “ The exami- - nation was taken by questions put either by the district attorney or myself ” (coroner’s evidence). He was twice examined, and at the conclusion was re-sworn. The prisoner had recently come from a jurisdiction where persons charged with crime are compelled to answer questions touching their own guilt or inno- • cence when put by magistrates. The prisoner’s attendance - before the coroner was certainly compulsory, and it seems tome the testimony taken was involuntary, and inadmissible-under the constitution. If admissions obtained by the method, under consideration are admissible, it is difficult to see why all persons- charged with crime, in prison and ignorant of their-rights,' may not be taken by sheriffs before commiting magistrates or grand juries and their answers used against them on-, trials. Whether admissions are voluntary or involuntary depends upon the circumstances surrounding each case. Had this. defendant been informed of his rights, had he been attended by-counsel, or had it appeared as a fact, or by fair inference that he-knew his rights, his testimony before the coroner might be regarded as voluntary, but not so under the circumstances disclosed by this case.
But it is answered; there were no threats, nor fear, and.therefore the examination was legal, and the testimony so taken competent against him on the trial of the indictment This.*125'floes not seem to reach the question. When a constitutional .•statute is so administered by the court as to produce a result "prohibited by the constitution, it is error.
Suppose an examination pending before a magistrate or a • grand jury. The person charged with the offense tinder investi- ; gation is in jail, from which he is taken by the sheriff and carried before the magistrate or grand jury. The prisoner is ignorant ■ of his rights and is not informed of them, he is directed in the kindest manner by the magistrate or foreman to be sworn as a •witness,- he submits and is cross-examined by the district -attorney and the presiding magistrate. His testimony is not given “ under the influence of fear produced by threats,” because dhere are no threats.
Under the rule declared by my brethren, evidence so acquired would be admissible upon the trial of the indictment, which • seems to me would be a plain violation of the constitutional -guaranty. I am unable to see any difference in principle between the supposed case and the case at bar.
A coroner’s inquest is a tribunal created by our statutes, «charged with the duty of investigating crimes; and this inquest was engaged in an investigation aimed at this defendant. The People v. McGloin (91 N. Y. 241; 1 N. Y. Crim. 154), relied upon by my brethren, does not seem to me to be at all in point. In that case the rule was recognized that confessions must be voluntary to be admissible. McGloin was in confinement and -said he would make a statement; a coroner was sent for, who wrote down the prisoner’s statement, which upon the trial of an ■indictment for the crime, was admitted in evidence against bimr As said by the Court of Appeals: “ The coroner was not acting in any official capacity, but as a mere clerk t© take down and ■prove the confession.” The coroner informed the prisoner that was his right to refuse to make a statement; that he should •consider well before he made one, and no questions were put :by the coroner. People v. McGloin, 28 Hun, 152; 1 N.Y. Crim. Rep. 105. In McGloin’s case the coroner was not acting in a ■judicial capacity, but as a scribe; while in the case at bar, the ■coroner was acting-in. a judicial capacity, and in effect required *126the defendant to he sworn, and submit to an examination by the prosecuting officer.
In People v. Gibbons (43 Cal. 557), it was held that the testimony of a prisoner taken before a committing magistrate could not be received in evidence upon the trial of an indictment. The decision is placed upon the ground that the magistrate had no authority to take the examination, and it was not admitted as a confession. Afterwards accused persons were authorized to testify before committing magistrates, and it was then held,-. that if a prisoner voluntarily testified the evidence might be admitted upon a trial of the indictment. People v. Kelley, 47 Cal. 125.
Again, section 778 of the Code of Criminal Procedure requires ■ the testimony taken at inquests to be reduced to writing and forthwith filed. The defendant’s testimony was not proved by putting in the coroner’s record, but by asking if the defendant swore to particular facts.
In People v. Gelabert (39 Cal. 663), it was held that an extrajudicial confession, partly in English and partly in broken Spanish, made to a person who did not understand all the pris- - oner said in Spanish, could not be proved against the prisoner. How perfectly the coroner understood the defendant in this. case may be inferred from his evidence. The coroner testified: “ Some of the questions were put directly to the witness, some - were not. Those which were not put directly were put by an interpreter; we used the interpreter after the first few linés ; when we came to a question which we thought he did not understand we put that through an interpreter. I think that. was kept up all through the examination. We finally adopted . the interpreter; I came to the conclusion that he.did not understand English well enough to be examined; I wrote down the ■ substance of the answers- as they were given to me by the interpreter after the questions had been put; when it was read over - to him it was read right along from beginning to end through the interpreter; the interpreter was a son-in-law of the deceased; the interpreter was examined as a witness also. Ho,' I am mistaken in the time. On the taking of the evidence, which is • signed by him, no interpreter was used; the interpreter was - *127used ou a subsequent day; I read the evidence over to him, line by line, and asked him if he understood it, and if it was the truth which he told me, and he said it was; then I re-swore him to the deposition.”
Permitting the testimony of the defendant given before the coroner to be proved against him was error, for which the judgment should be reversed and a new trial granted.
Conviction and judgment affirmed.