(dissenting). The following facts appear without opposition and are disputed by no one. The appellant, a 15-year-old young man in full possession of his faculties, decided in conjunction with a few of his friends to commit a robbery. They carefully selected a suitable victim, mugged him and took his wallet. For some reason not entirely clear they then proceeded to ,stab him to death. In all of this the appellant was a willing participant.
Five days later two detectives appeared at the appellant’s apartment and informed his mother that they were going to take the appellant to the station house for questioning in regard to a stabbing, and advised her that she could accompany them if she so wished. She refused. At the station house appellant was completely advised of his rights and no one has urged that he did not thoroughly understand that he was privileged to remain silent and to have an attorney, whether or not he could afford to pay one. There is no claim or suggestion that the statement which he .subsequently wrote out in his own words and in his own handwriting was the consequence of any coercion, trickery or improper inducement on the part of the police.
The Family Court found that appellant committed an act which if committed by an adult would have amounted to a homicide and further that appellant was in need of supervision and confinement, and committed appellant to a State training school for a period not to exceed 18 months. It is difficult to see how any different finding could have been arrived at, and no one suggests that these conclusions were not warranted from the facts.
But, say the majority, the finding must be set aside and the petition dismissed and the appellant released from custody. This startling result, with its all too plain shocking consequences, is mandated upon the court by the violation of section 724 of the Family Court Act and because there was a denial of due process.
Taking first the statutory violation, section 724 (subd. [b], par. [ii]) provides for the situation where the arresting officer finds it necessary to question the suspected delinquent. Appar*189ently it is not disputed that such was the situation here. And it could not be otherwise maintained. Neither the mugging nor the homicide was witnessed by any eye other than the participants. Obviously information of the appellant’s involvement came from the other miscreants. Unless the police were to accept their statements without giving appellant a chance to deny his involvement, some questioning was needed—for his own protection primarily. True it is that the statute directs that the questioning shall be conducted at a place to be designated by the Appellate Division and only for a reasonable time. That the questioning did not exceed a reasonable time is admitted, ,so that the only impropriety is that the questioning took place in one building rather than in another. No one has attempted any showing that any prejudice resulted from this deviation. And actually the statutory direction has been regarded of so little significance in practice that it took some searching of the records of this court to discover whether a place for questioning had ever been designated. Reliance on this extreme technicality elevates a directory provision beyond all conceivable proportions and its inclusion in the majority opinion is not believed to be other than a make weight.
Turning now to the more serious objection, it is claimed that taking the statement violated due process. And in that respect there is no quarrel on the issue of whether or not Matter of Gault (387 U. S. 1) is or is not to be given retroactive effect. What the Constitution interdicts is not self incrimination but involuntary self incrimination. Unfortunately the tendency to pare away the limits of what is voluntary by successive interpretations of prior interpretations has left this distinction with such a small basis that it is not astonishing that it is either not recognized or passed over lightly with a modicum of lip service. And so it is that while the rule is announced that even in the absence of counsel the confession may be admissible provided the greatest care is taken to assure that it is voluntary (Matter of Gault, supra, p. 55), little by little circumstances in a particular case which are held to show a lack of voluntary admission are further extended in the- next one. In Matter of William L. (29 A D 2d 182), the boy’s mother was advised by the police that the matter was not serious and ,she was discouraged from carrying out her original plan to accompany him. Here she was invited to attend, but this is discounted because the officer described the incident as a stabbing and not a homicide. Many years ago a distinguished jurist warned against just such a ratio decidendi, which he called “ a jurisprudence of conceptions ” (Roscoe Pound, “ Mechanical Jurisprudence”, 8 Col. *190L. Rev. 605, 610, quoted by Cardozo, J., in Hynes v. New York Cent. R. R. Co., 231 N. Y. 229, 235). The net result is that while voluntariness is shown by uncontested facts, involuntariness is found by quotations from prior decisions.
When the fog of interpretive miasma is cleared away and the real question of whether this was a voluntary statement is looked into, there is no doubt at all. A reading of the statement plus the appellant’s answers to the qualifying questions, which the majority gratuitously designates as a “token compliance ”, explain the situation beyond cavil. Aaron D was not only willing to explain his adventure, he was anxious to do so. He had been one of a group which killed a man, which fact, per ,se, made him a tiger in the jungle which his predecessors have made of our streets. He was as eager to have this known as a scholar of like age is to display a Phi Beta Kappa key. District Attorneys experienced in such fields repeatedly tell us that this and similar motives (not conscience) prompt the statements that are so frequently made. (Cf., “ Interrogations ”, 76 Yale L. J. 1519, 1562-1565 [1967].) To say that this statement was not voluntary is to give the word a new and tortured meaning.
There can be little doubt that the net effect is that the appellant, nauseatingly described as “this child”, will appreciate and react to this disposition by further conduct along the same lines. How else is the staggering increase in serious juvenile crime to be accounted for other than by the knowledge that no felony, however serious, is punishable? The guarantee of due process is a shield to prevent the exaction of forced incriminatory admissions, not a legal excuse for the concealment of crime.
The order should be affirmed.
Stevens, J. P., concurs with Eager, J.; Capozzoli, J., concurs in opinion; Steuer, J., dissents and votes to affirm in opinion in which Tilzer, J., concurs.
Order entered on March 21,1967 reversed, on the law, without costs or disbursements, and the petition dismissed.