I dissent. The circumstance of the trial is stated in the prevailing opinion.
I think that there is capital error in the admission of the silence of the defendant. At that time he was under arrest. (Code Crim. Proc. §§ 167, 171.) In People v. Marendi (213 N. Y. 613) the eminent judge who wrote for the court says: “ The defendant made a response in his own language, which no one present could interpret. Even if he had stood mute his silence could not' have been construed as an admission, because he was then under arrest and not called upon to speak or deny an accusation. (People v. Smith, 172 N. Y. 210, at page 234; Commonwealth v. McDermott, 123 Mass. 440.)” And a reading of People v. Smith (supra) reveals that the eminent judge who *383wrote for the court says, referring to the defendant: “ Moreover, he was at the time under arrest and in the custody of an officer, and might well have been silent without its being regarded as an acquiescence in any act proved to have been performed. Commonwealth v. McDermott, 123 Mass. 440; State v. Diskin, 44 Am. Rep. 449.)”
I think that these are cogent statements of the principle that should obtain in this instance. The Constitution of New York provides: “ No person shall * * * be compelled in any criminal case to be a witness against himself.” (Art. 1, § 6.) This organic law is embodied in the Code of Criminal Procedure, section 10: “ No person can be compelled in a criminal action to be a witness against himself.” It was defendant’s silence when in the hearing of the speaker, and after the utterance of the speaker, that made the “ evidence.” And the defendant was “ compelled.” His physical presence was enforced, and he could do nothing further by way of protest or protection than by standing then and there mute. Thus, in spite of his own practical invocation to the full of the organic and criminal law against self-crimination, the defendant was compelled to furnish evidence against himself, declared competent in his trial. But at trial his neglect or refusal to testify cannot create any presumption against him. (Code Grim. Proc. § 393.) If when under arrest the mere silence of the defendant constitutes evidence that makes for his guilt, then one purpose of the organic law is thwarted, for the reason that the defendant is required to furnish evidence against his will in a compulsory way. (See People v. Tice, 131 N. Y. 655.) And see, too, the principle as stated in Talcott v. Harris (93 N. Y. 567, 572): “ It would be going very far to hold that a party arrested upon ex parte affidavits should be considered as assenting to their verity because he omitted or refused to answer them before the time which the law allows him for that purpose. We are unable to see how such testimony can be justified.” It is not the administration of the oath that is safeguarded to him, but the compulsory feature of such an occasion. (People v. Ferola, 215 N. Y. 290.)
But it is said by my brother who writes for the court, that these statements of the rule in People v. Marendi and in People v. Smith (supra) are but dicta. That may be, in that the rule *384stated- was not essential to the judgments, but if so these statements are judicial, not obiter, dicta, and not made by way of argument or illustration, but as declarative of a rule most important, fortified by citation of precedents. Moreover, it is to be noted that Kelley v. People of the State of N. Y. (55 N. Y. 565), relied upon by the majority of the court in this case, was cited by both counsel in People v. Smith (supra). To my mind, these deliberate statements of the general principle are entitled to the highest respect and consideration as the careful utterances of distinguished judges of our highest court — utterances which do not relate to first impressions, but state a general rule in furtherance of the spirit of our organic law, and which are in harmony with the adjudications of the courts in other jurisdictions. (“ Dictum,” Anderson Law Diet.; “ Dictum,” Bouvier Law Diet. See, too, Railroad Companies v. Schutte, 103 U. S. 143; cited in Union Pacific Co. v. Mason City Co., 199 id. 166; 15 C. J. 953.)
The argument in Kelley v. People of the State of N. Y. (supra) is that when declarations are made in the presence and hearing of the accused touching or affecting his guilt or innocence, “ and he remains silent when it would be proper for him to speak,” it is the province of the jury to interpret the silence. And the argument is pursued with the statement. “ and, therefore, except in those cases where the statements are made upon an occasion and under circumstances in which the individual sought to be affected could not with propriety speak, as in the progress of a judicial investigation,” etc., “ the evidence is competent.” And the rule is finally stated as follows: “ It is no objection to the admission of the declarations of the accused, as evidence, that they are made while he is under arrest, and his admission, either express or implied, of the truth of a statement made by others under the same circumstances is equally admissible. His conduct and acts, as well when in custody as when at large, may be given in evidence against him, and their cogency as evidence will be determined by the jury.” (Italics mine.) (Citing People v. Wentz, 37 N. Y. 303; Hochrieter v. People, 2 Abb. Ct. App. Dec. 363; McKee v. People, 36 N. Y. 113; Teachout v. People, 41 id. 7; Commonwealth v. Cuffee, 108 Mass. 285, and Commonweath v. Crocker, Id. 464.) My respectful contention is that there is a manifest *385difference between the acts or declarations of the accused under such circumstance, and his standing mute. In the former case there is affirmative action by the accused; in the latter he withholds all action so far as is physically possible. There is the clash of positive and negative. A number of cases are cited by the learned judge in Kelley’s Case (supra). In Teachout v. People (41 N. Y. 7,10) the defendant testified before the coroner when a party charged with the crime. In People v. Wentz (37 N. Y. 303) there was a confession. In Commonwealth v. Cuffee (108 Mass. 285) there was a confession. In Commonwealth v. Crocker (108 Mass. 464) there was a denial of guilt. In Hochrieter v. People (2 Abb. Ct. App. Dec. 363) Hochrieter was indicted for murder, and a. policeman testified that he brought the accused before the victim. The question involved was whether what a witness named Egner said and did in the presence of the prisoner was competent. In McKee v. People (36 N. Y. 113) the question was as to the competency of the statements of the prisoner’s wife in his presence. These are all of the precedents cited in Kelley v. People of the State of N. Y. It seems to me that none is in point, or at least authoritative, on the question then before the court. In consideration of Kelley v. People of the State of N. Y. (supra) in Greenleaf on Evidence (Vol. 1 [15th ed.], p. 275), the note states that the authorities cited to sustain the holding, to wit, Commonwealth v. Cuffee (108 Mass. 285) and Commonwealth v. Crocker (Id. 464), do not support the principle.
I think that the occasion considered in the case at bar, to adopt the language of exception of the court in Kelley’s Case (supra), was one when it would not be “ proper for him to speak,” and one of “ those cases where the statements are made upon an occasion and under circumstances ” when the defendant “ could not with propriety speak.” The head note in Commonwealth v. McDermott (123 Mass. 440), cited by the court in Marendi’s Case (213 N. Y. 600) correctly reads: “A person who is held in custody-on a charge of crime jointly with another person is not called upon to contradict statements prejudicial to him, made in his presence by the other person, in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence *386against him.” (See, too, Greenl. Ev. [15th ed.] § 197; 2 Wharton Grim. Ev. [10th ed. Hilton] 1409, and note with cases.) I am much impressed by the decision in Commonwealth v. Kenney (12 Metc. [Mass.] 235, 238), by Shaw, Ch. J., who says: “ The subsequent statement, if made in the hearing of the defendant, (of which we think there was evidence,) was made whilst he was under arrest, and in the custody of persons having official authority. They were made, by an excited, complaining party, to such officers, who were just putting him into confinement. If not strictly an official complaint to officers of the law, it was a proceeding very similar to it, and he might well suppose that he had no right .to say any thing until regularly called upon to answer. We are therefore of opinion that the verdict must be set aside and a new trial granted.”
I respectfully urge that the rule in Kelley v. People of the State of N. Y. (supra) does not and should not apply when a defendant under arrest stands motionless and mute.
In People v. Tice (131 N. Y. 655) the court say that the constitutional provision (Const, art. 1, § 6) protects persons charged with crime against “inquisitorial and compulsory proceedings.” The days of the boot and the thumb screw are gone. But what in our day can more resemble inquisitorial or compulsory proceedings than ‘the opportunity afforded by the arrest of a defendant while he .remains alone, without counsel, or the protection of judicial procedure. And yet the proposition is he cannot stand even mute and at gaze, without affording that evidence against himself which is made in part by the accusation of others but only completed by his own silence.
The case at bar is far from strong on the proofs of identification, and I have grave doubts of the legal propriety of the episode described by my brother Blackmak, with reference to the examination of the .witness Lucia Della Mura.
I think that a new trial should be ordered.
Judgment of conviction and order of the County Court of Kings county affirmed.