About eight o’clock on the evening of Sunday, the 24th of November, 1918, three men entered a little grocery store at No. 100 Harrison street, Brooklyn, kept by Pasquale Della Mura and Lucia, his wife, and at the point of a revolver took $150 from the money drawer. This robbery was conclusively proved and is not controverted. The serious question litigated was whether the defendant was concerned in it.
One peculiarity of the case is that Pasquale and Lucia Della Mura deny that the defendant was one of the robbers. Obviously the district attorney knew, when he brought the case on for trial, that such would be their testimony; nevertheless as he was compelled to prove the robbery, he was forced to call either Pasquale or Lucia, and he chose Lucia. He proved by her simply the fact of the robbery and turned her over for cross-examination. Nothing was said by her about the identity of the defendant except that she voluntarily stated that she did not know the men who robbed her.
An important episode of the trial took place at this point, but I will pass it over for the present.
The district attorney then placed upon the stand a lad of about eleven years of age, a son of the Della Muras, who was present at the time of the robbery. The judge examined this boy to ascertain his understanding of the nature of an oath, and declined to swear him. His testimony was, however, received under section 392 of .the Code of Criminal Procedure. An important result flowing from this is that the defendant cannot be convicted upon the testimony so given “ unsupported by other evidence.”
The lad testified to the robbery and identified the defendant. A police officer, James Guerin, was then called. Guerin testified that while he was standing in Columbia street, which was three or four city blocks from the place of the robbery, he saw in front of him a man who was panting as if he had been running. The man, watched by Guerin, put something down on a cellar door. Guerin followed him, found that the article was a revolver, and arrested him. . That man was the defendant. He was taken by Guerin back to 100 Harrison street, where the robbery was committed. Guerin testified that in defendant’s presence he asked both Pasquale and Lucia *379Della Mura if defendant was one of the robbers; that both answered yes, and that defendant made no reply. This was practically the People’s case. The defense presented an alibi supported by the testimony of six witnesses, among whom was Pasquale Della Mura, who testified that when the robbers, of whom the defendant was not one, left his store, he followed them in his shirt sleeves; that they ran from Harrison street to Tiffany Place, through Tiffany Place to Degraw street, through Degraw street towards Columbia street, and that there he lost them. It was near this point that Guerin arrested the defendant, and Guerin testified that he saw a man in his shirt sleeves at the corner of Degraw and Columbia streets.
It is urged that the testimony of the boy was not supported by other evidence. Defendant, panting as if he had been running, was arrested near the point to which Della Mura had chased the robbers. He tried to get rid of the incriminating evidence of a revolver. The boy testified that the defendant had a black band on his arm, and a detective, McCarthy, testified that the defendant had a mourning band on his arm. The silence of the defendant, in face of the accusation by Pasquale and Lucia Della Mura, is, if competent, which will be considered later, supporting evidence. We think, therefore, that the testimony of the boy was supported by other evidence and that the question of identity was one of fact for the jury.
The defendant claims that evidence of his silence in the face of the charge against him is not admissible, because he was then under arrest. It has been said by the Court of Appeals that evidence of this character is dangerous and should always be received with caution. (People v. Kennedy, 164 N. Y. 456.) With this remark every one who has had experience in criminal trials must agree. It is entirely too probable that the jury, not conversant with the arbitrary rule excluding hearsay evidence, would give weight to the accusation itself. The evidence is admissible only ifjthe accused is “ at full liberty to make answer thereto.” (Kennedy Case, supra.) No one is compelled to be a witness against himself. (Const, art. 1, § 6.) The failure of the accused to testify on the trial is not evidence against him. (Code Grim. Proc. § 393.) When arraigned before a magistrate he may remain silent, or if he elect *380to make a statement the questions which may be asked him are prescribed by law (Code Crim. Proc. § 198), and he may not be questioned as to guilt or innocence. It is from considerations which underlie these principles of evidence in the domain of criminal law that the question has been mooted whether evidence of the defendant’s conduct in the face of accusations when he is under the restraint of arrest is competent. I desire only to ascertain and follow the rule that our Court of Appeals has laid down on this subject. Such rule I am bound to follow without pursuing the subject in other jurisdictions or in text books, and without regard to my own opinion. There are two dicta directly to the effect that such evidence is not competent. One is found in People v. Smith (172 N. Y. 210), another in People v. Marendi (213 id. 600). These dicta would govern me except for well-considered decisions to the contrary. (Kelley v. People of the State of N. Y., 55 N. Y. 565; and, in effect, People v. Ferrara, 199 id. 414.) On these decisions I rest. The resulting rule, I think, is that the fact that the defendant is under arrest affects the weight and not the competency of the evidence.
I now turn to the episode that took place during the examination of Lucia Della Mura. I have already stated that the district attorney, after he had proved the fact of the robbery, turned the witness over to the defendant for cross-examination. It is obvious that the district attorney knew that the witness would not identify the defendant as one of the robbers. When defendant's counsel declined to cross-examine, the district attorney took the witness again and, without asking her directly whether the defendant was one of the robbers, began to cross-examine her on previous statements which it was suggested that she had made to that effect. The witness was also interrogated as to what took place in the Magistrate’s Court, where the defendant was held for the grand jury. The district attorney read to her what he said was a transcript of her testimony before the magistrate, as follows: “About 8 p. m. on that date, the 24th of November, the said Cascia, accompanied by two unknown men, entered the grocery store, conducted by me, at the premises 100 Harrison street, and that while the said Cascia did point a revolver at and in my direction, the two unknown men went behind the counter *381and took the money and ring.” She was then asked if she so swore in the Magistrate’s Court. The witness fenced instead of answering the question directly, and finally said she did not remember. At this point for the first time the defendant’s counsel objected but did not press the objection, and no exception was taken. It will be noted that at no time during this examination was the witness asked directly whether the defendant was one of the robbers.
It is difficult to see any rule of evidence or administration under which this evidence could have been admitted. There are many cases which hold that where a counsel is surprised at the testimony of his witness he may refresh the recollection of the witness by calling attention to prior statements, and may probe his conscience for the purpose of compelling him to testify to the truth. This rule is well established. But the district attorney was not surprised in this case. He knew before he began the examination that this witness would not identify the defendant. He did not ask her the question. It seems to me that the purpose and effect of this line of inquiry was to bring before the jury these prior hearsay.statements of the witness upon the very issue upon which this case turned, namely, the question of identity. In doing this the district attorney succeeded in getting before the jury, first, that the witness had stated, immediately after the robbery, that defendant was one of the robbers, and, second, that she had sworn to it in the Magistrate’s Court, although the last was rather by way of innuendo than by direct proof. But when the jury heard the district attorney read the affidavit which he said was the information laid by this witness before the magistrate, the belief was necessarily borne in upon them that the affidavit was actually made and sworn to by the witness. I think the method the district attorney pursued was erroneous. As no objection and exception were taken to this evidence, no error of law was committed. (People v. McDonald, 159 N. Y. 309.) But nevertheless if we are convinced that upon this delicate issue of identity the admission of this evidence was unduly prejudicial to defendant, so that he did not have a fair trial, it is competent for us to reverse. (Code Crim. Proc. § 527.) I must, therefore, go further.
I have already reached the conclusion that it was competent *382for the district attorney to prove by Officer Guerin that this witness had identified the defendant at 100 Harrison street. In view of this, the suggestive examination of the witness on a fact subsequently proved by Guerin was harmless. That leaves for consideration, therefore, only the question of the use of the affidavit made before the committing magistrate. But it is difficult to see that the jury would give more credence to this than they would to the evidence that the witness accused the defendant in her store soon after the commission of the robbery. I consider that the method adopted in examining the witness Lucia Della Mura presents a grave question to an appellate court which is not confined to the determination of pure questions of law; but the best judgment I can form, after a careful consideration of the record, is that as the evidence is sufficient to sustain the conviction, the admission of this particular evidence may be disregarded. (Code Grim. Proc. § 542.)
I find no other point in the case which calls for discussion, and am of opinion that the evidence justified the conclusion that defendant had a fair trial and that there was no substantial error of law.
The judgment of conviction should be affirmed.
Rich, Kelly and Jaycox, JJ., concur; Jenks, P. J., reads for reversal.