I concur in the conclusion that the judgment of conviction should be affirmed. I do not concur in the opinion that there was error in the admission of the confession to the coroner. In warning the defendant that she need not make a statement the coroner did not state that her election not to make a statement could not be used against her. When the defendant was called at the inquest the coroner did make the following statement to her: "Mrs. Ferola, you are charged with homicide, in having caused the death of Carmello Canestrale. It is your privilege to testify or not, just as you see fit. Any statement that you make now can be used against you at this or any future proceeding Knowing this, do you wish to testify? You are entitled to counsel, and you can refuse to testify until such time as you have counsel." It is claimed that although section 198 of the Code of Criminal Procedure provides that if the defendant choose to make a statement, the magistrate must take it "without oath," the coroner first administered an oath to the defendant and asked her name and address. It is also claimed that although section 198 specifies the questions which the magistrate shall put to the defendant, the coroner did not limit himself to the questions specified but examined the defendant generally *Page 294 as to the facts connected with the crime. In considering the question presented our statutory provisions must be kept in mind. Sections 196 and 198 of the Code of Criminal Procedure prescribe the manner in which the statement of the defendant is to be taken by the magistrate and section 395 of the Code of Criminal Procedure codifies the law of the state governing the admission of confessions upon a trial. In terms sections 196 and 198 of the Code of Criminal Procedure apply to an examination before amagistrate and make no reference to examinations before a coroner. Considering the object of these statutory provisions, I think they were intended in cases of homicide to apply to a coroner as well as to a magistrate. (Code of Criminal Procedure, sections 147, 780; People v. Molineux, 168 N.Y. 264, 331;People v. Jackson, 191 N.Y. 293.) The coroner or magistrate in order to comply with the statute is not required to use the precise words of the statute in giving the prescribed caution. It is sufficient if the caution substantially complies with the statute and informs the defendant of his entire freedom to make a statement or not as he thinks best. (State v. Rogers,112 N.C. 874; State v. De Graff, 113 N.C. 688, 693.) If we ignore for the moment the fact that the defendant was sworn and consider only the caution or warning which the coroner gave to the defendant, it is evident that the coroner's statement complied with the statute except that it omitted to inform her that if she did not make a statement, that fact could not be used against her. I think that this omission was not a substantial departure from the requirements of the statute in view of the fact that the coroner fairly left it to her to testify or not, as she chose and warned her that anything she might say could be used against her. If the fact that an oath was administered is not fatal to the admission of the confession, the fact that the warning or caution was given after she was sworn seems to me, not to have been an *Page 295 irregularity of substance. The fact that an oath was administered, if she had not been interrogated, could not of itself prejudice the defendant in any of her rights. If she was prejudiced at all it was in answering the questions that were put to her, not in the fact that she was sworn. After she had been sworn it was then made perfectly clear to her that "it is your privilege to testify or not, just as you see fit." If she fully understood and appreciated this caution and still desired to confess, the fact that she was sworn before she was cautioned cannot as a matter of law establish that her confession was involuntary. The learned trial court left the question very fairly to the jury to determine whether this confession was voluntary. Under the instructions which the learned court gave to the jury, we are required to assume that the jury found that this confession was not made under the influence of fear produced by threats or upon the stipulation of the district attorney, that the defendant should not be prosecuted. Why should the fact that an oath was administered foreclose all further inquiry as to whether the confession was voluntary and require us to hold as a matter of law that the confession was involuntary? It will hardly be argued that because given under the sanctity of an oath, it was less likely to be true than if it had not been given under oath. The law, in the requirement that witnesses shall be sworn, proceeds upon the assumption that their testimony is more likely to be true if given under oath. In State v. Gilman (51 Me. 206) RICE, J., said: "Does it follow that because a statement is made upon oath in a proceeding where the circumstances of the commission of the crime are being investigated, and the person making such statements is a suspected or accused person, that it must necessarily be involuntarily made? May not a man depose on oath as freely as he may speak when unsworn? And, if so, do his statements become any less reliable than when made without the sanction of an oath?" *Page 296
MORTON, J., pertinently remarked that "the fact that it was made under oath, cannot diminish its force or render its competency questionable. If it contain a true narrative of facts, justice requires that they should be admitted. And no man will be more likely to make false admissions against himself, because he has been sworn to tell the truth." (Faunce v. Gray,38 Mass. 243.) It is now settled in this state that the fact that a confession was made in a judicial proceeding does not render it inadmissible. Section 395 of the Code of Criminal Procedure specifically so provides, and this court in the case of People v. Chapleau (121 N.Y. 266, 274) so held. In the case last referred to, Judge GRAY, speaking for this court, said: "It is thus perfectly clear that, both before and since the enactment of the Code provisions, the test of admissibility of the statements of a party accused of the commission of the crime, whether madein the course of judicial proceedings or not, is whether they were voluntary, and that can be determined by their nature and the circumstances under which made. If, in all respects, and however viewed, they could only have been the voluntary and uninfluenced statements of the individual, no principle of law warrants their exclusion and the Code expressly authorizes their being given in evidence upon the trial." From what has been said I think it has been shown that the fact that the confession was made in a judicial proceeding does not render it involuntary as a matter of law, and also that the fact that an oath was administered does not render it involuntary as a matter of law, unless the fact that the statute provides that the accused shall not be examined under oath, requires us to come to a different conclusion. At common law a confession, otherwise admissible, is not rendered inadmissible by reason of the fact that it was made under oath. (The King v. Lambe, 2 Leach's Cr. C. 552; Reg. v. Scott, 1 D. B. 47; Regina v. Sansome, 4 Cox Cr. 203, 207; The Queen v. Johnston, 15 Irish C.L. 60, 83; Reg. *Page 297 v. Stripp, 1 Dearsley, 649; Regina v. Arnold, 8 C. P. 621.)
The statutory provision embodied in section 198 of the Code of Criminal Procedure was taken from part IV, chapter II, title 2, section 14 of the Revised Statutes, which was itself taken from the Laws of 1813 (2 Revised Laws of New York, page 507, section II). It was modelled upon the statutes of 1 2 Philip Mary, c. 13, and 2 3 Philip Mary, c. 10, which in England were amended and amplified in 7 George IV and 11 12 Victoria. It appears clearly from the history of the statute that its purpose was to prescribe the rules which should govern the conduct of magistrates, and that it was not designed to alter the rules of evidence governing the admissibility of confessions upon a trial. (Stephen's History of the Criminal Law, vol. I, p. 219. See, also, The King v. Lambe, supra; State v. Gilman, 51 Me. 206. )
Bearing in mind the purpose of these statutes it is necessary to consider whether the fact that the statement was taken in violation of the statute, renders it inadmissible in evidence upon the trial. The decisions have not been consistent and most of them are nisi prius rulings and nothing is to be gained from a detailed review of them. There are a few well-reasoned opinions on the subject, delivered upon appeal, which merit attention. InThe King v. Lambe (supra) the question whether a confession by a prisoner which was not signed, as required by the statute, either by the prisoner or the magistrate, was considered and determined. Mr. Justice GROSE, delivering the opinion of the twelve judges for whose consideration the question had been reserved, said that the confession "is clearly receivable in evidence at common law." He then considered the question whether it was rendered inadmissible by reason of the statute. He referred to the nature of the examination before the magistrate and said that when the examination "contains a confession, [it] is admitted, not by force of the statutes, but by the common *Page 298 law, as strong evidence of that fact. Consider for a moment what an absurdity would follow, if the manner and form in which a confession is reduced into writing were to be the ground of an objection against receiving the confession in evidence. The confession of a fact by the prisoner to the constable, the moment before they entered the office of the magistrate, might, on theviva voce testimony of the constable, be given in evidence; but a confession made on the other side of the office door, in the presence and hearing of the magistrate, could not be given in evidence if reduced into writing, unless such writing were signed by the prisoner. A proposition which needs only to be stated to shew its weakness and absurdity! The Legislature has not, by even a remote expression in either of the statutes, signified an intention to alter the nature of evidence, or to prevent that from being received as evidence against a prisoner now, which was receivable as evidence before. The intention was merely to compel justices of the peace to return the examination of the prisoners, and the information of those who appeared against them, for the purposes, and very wise ones they are, apparent on the face of the statutes. As matter of future evidence it was not even in the contemplation of the Legislature. But at the time when these statutes passed, the examinations which they directed to be taken, became evidence, where they contained confessions, by operation of law, leaving all other confessions, good or bad, as they were before those statutes were made; and it is clear, that what a prisoner confessed before a justice of the peace, previous to the reign of Philip and Mary, if not induced by hope or extorted by fear, whether reduced into writing or not; or, if reduced into writing, whether signed or not, if admitted by the prisoner to be true, was and is as good evidence as if made in the adjoining room previous to his having been carried into the presence of the justice, or after he had left him, or in the same room before the magistrate *Page 299 comes, or after he quits it. Thus, as it seems to me, the point in question stands both at the common law, and upon the construction of the statutes; and authorities are not wanting to support the principles of this decision." In Regina v.Sansome (1850, supra) it was held that a statement of a prisoner not taken in the form prescribed by statute may still be given in evidence against him upon his trial. In that case Lord CAMPBELL, Ch. J., said: "We are all of opinion that this objection is unfounded. * * * Now it has been argued * * * that the statute makes it a condition precedent that the magistrate should `state to the prisoner and give him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him, to induce him to make any admission or confession of his guilt; but that whatever he shall then say may be given in evidence against him upon his trial notwithstanding such promise or threat,' but in this case there was no evidence of any promise or threat whatever, and therefore there could be no necessity for showing that any caution had been given; for I am of opinion that the giving of such caution cannot be a condition precedent to the admissibility of every declaration made by a prisoner before a magistrate read over to him and signed by him. It seems to methat that proviso contains merely a direction to the magistratehow to proceed, and not a condition precedent. If he neglects hisduty, there is no clause of nullity in the statute, nothing toexclude a confession which would be admissible at common law."
In this country, also, similar statutes copied from the English statutes, which have been referred to, have given rise to conflicting decisions. The general rule in this country is the same as in England, and where no statutory provision is violated the sworn or unsworn statements made by the accused before a magistrate are admissible if voluntary, and whether or not they are voluntary *Page 300 is a question of fact for the jury. (People v. Kelley,47 Cal. 125; Kansas v. Sorter, 52 Kans. 531; Commonwealth v.Reynolds, 122 Mass. 454; People v. Taylor, 59 Cal. 640;State v. Glass, 50 Wis. 218; State v. Wisdom,119 Mo. 539, 541; State v. Punshon, 133 Mo. 44; State v. Gilman,51 Me. 206.) Where the confession was taken by the magistrate in violation of the statute it was held, in State v. Briggs (68 Ia. 416), and Anderson v. State (133 Wis. 601, 609), that it was, nevertheless, admissible, although the contrary was held inState v. Parker (132 N.C. 1014).
We come now to a discussion of the cases in this state which are far from being harmonious. It would be in vain to attempt to reconcile them. In the Hendrickson Case (1854) (10 N.Y. 13) it was held that a statement made under oath before the coroner by a person against whom suspicion was directed was admissible in evidence upon the trial of that person for murder. In theMcMahon Case (1857) (15 N.Y. 384) the prisoner was taken by a constable before a coroner and sworn and examined as a witness, and it was held that his evidence before the coroner was notadmissible upon his trial for murder. In the Teachout Case (1869) (41 N.Y. 7) a statement made by a prisoner, who knew he was suspected of having poisoned the deceased, to the coroner under oath, was held to be admissible. In the McGloin Case (1882) (91 N.Y. 241) a person arrested, charged with murder, made a confession which the coroner took down, not in his official capacity but as clerk, and it was held that his confession wasadmissible in evidence on his trial for murder. In the MondonCase (1886) (103 N.Y. 211) the facts were practically the same as in the McMahon case. A person under arrest accused of causing death by criminal means gave evidence, under oath, before the coroner, and upon his trial such evidence was held not to beadmissible. In the Chapleau Case (1890) (121 N.Y. 266) the day after the homicide a person under *Page 301 arrest gave testimony under oath before the coroner as to the circumstances of the homicide. His evidence was held to beadmissible upon his trial. These are the leading cases in this court upon the question under consideration, and the brief statement above given of the facts and decision in each case disclose a conflict which is irreconcilable. There have been many other cases which referred to these cases although they are dissimilar upon their precise facts and need not now be discussed. (People v. Molineux, supra; People v. Rogers,192 N.Y. 331; People v. Randazzio, 194; N.Y. 147; People v.Garfalo, 207 N.Y. 141.) The principle of the Hendrickson case was followed by Chancellor WALWORTH when circuit judge, inPeople v. Thayer (1 Parker, 595). A recognition of the fact that the decisions in this state upon this subject are inconsistent and irreconcilable is necessarily a first step to the enunciation of a clear rule in harmony with sound legal principles and one that is capable of serving as a guide to trial judges charged with the duty of presiding over that class of cases in which this question is most likely to arise. As our own precedents upon the subject are directly opposed to one another, we are entirely free to adopt a rule which shall be in accord with those decisions in our own court and in other jurisdictions which are based upon rational principle. The late Professor Thayer in commenting upon the administration of the criminal law pointed out that it "is sadly enfeebled by a continuance of some rules and practices which should have disappeared with the cruel laws they were designed to mitigate." Among the enfeebling influences to which he specifically made reference is "the absurd extreme to which the rule about confessions in evidence is sometimes pressed." (A Preliminary Treatise on Evidence at Common Law, p. 551, note 1.) Confessions voluntarily made, which are illegally obtained, are not on that account nullified and rendered inadmissible in evidence. Such confessions are receivable in evidence under the general *Page 302 rule that illegality in obtaining a confession will not justify its exclusion. (People v. White, 176 N.Y. 331; People v.Buffom, 214 N.Y. 53.) "It has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence. The illegality is by no means condoned; it is merely ignored." (Wigmore on Evidence, section 2183.) Thus evidence obtained as a result of illegal search and seizure (People v.Adams, 176 N.Y. 351) and confessions obtained by fraud or deceptive practices (People v. Buffom, 214 N.Y. 53) are receivable in evidence. The same rule is applicable to evidence of a confession obtained upon an examination of an accused person before a magistrate which is not taken in conformity to law. There is a line of cases, founded entirely upon the dissenting opinion of Judge SELDEN in the Hendrickson case and his prevailing opinion in the McMahon case, which treat confessionsunder oath thus illegally obtained as an exception to this rule. It is this supposed exception to the general rule which has disturbed the harmony of the decisions of this state and afforded the only ground to doubt that such confessions if voluntary are receivable in evidence upon the trial of the person accused. In my judgment there is no basis for recognizing such an exception. In his dissenting opinion in the Hendrickson case Judge SELDEN contended for the view that declarations of a person made under oath and before he was accused or arrested were not receivable against that person upon his subsequent trial. This opinion was based upon the fact that the questions put to Hendrickson must have informed him that he was suspected. His argument was based upon the following principle: "The object of the law is to ascertain truth; and it rejects no evidence, come from what source it may, which is calculated to throw light upon it. The mental disturbance produced by a direct accusation, or even a consciousness of being suspected of *Page 303 crime, is always great, and, in many cases, incalculable. The foundation of all reliance upon human testimony is that moral sentiment which almost universally leads men, when not under some strong counteracting influence, to tell the truth. This sentiment is sufficiently powerful to resist a trifling motive, but will not withstand the fear of conviction for crime. Hence, the moment that fear seizes the mind, the basis of all reliance upon its manifestations is gone. * * * The mind, confused and agitated by the apprehension of danger, cannot reason with coolness; and it resorts to falsehood when the truth would be safer, and is hurried into acknowledgments which the facts do not warrant. Neither false statements nor confessions, therefore, afford any certain evidence of guilt when made under the excitement of an impending prosecution for crime." (p. 33.) Although in theHendrickson case, Judge SELDEN expressed his views in a dissenting opinion, in the McMahon case he embodied the same views in the prevailing opinion, but expressed much more clearly the reason for his opinion. In the McMahon case, a prisoner under arrest charged with murder, was taken before the coroner and sworn and examined, and his examination was admitted against him upon his trial. This court held that this confession was not receivable in evidence and in his opinion Judge SELDEN was careful to state the precise reason why it was not receivable. He distinctly held that it was not objectionable "because a merearbitrary rule, which prohibits magistrates from taking theexamination of prisoners charged with crime upon oath, has been violated." (p. 395.) After stating that the evidence was not objectionable on the ground of the violation of the statute or because any immunity or privilege of the accused was violated, he said: "This leaves no other foundation for the rule than that which I have suggested, viz: — that the statement to be admissible, must proceed from the internal and spontaneous impulses of the prisoner alone, uninfluenced *Page 304 by any extraneous cause, of sufficient force to prevent free and voluntary mental action. It is considered that a judicial oath,administered when the mind is disturbed and agitated by acriminal charge may have that effect, and hence the exclusion.Upon no other principle, as 1 conceive, can the cases bereconciled with each other or with reason." From Judge SELDEN'S opinions in the Hendrickson and McMahon cases, therefore, it appears that the reason why sworn statements of a prisoner taken before a magistrate are not receivable in evidence, is not because the statute under which the magistrate assumed to act was violated, but solely because where the prisoner's "mind is disturbed and agitated by a criminal charge," administering a "judicial oath" prevents free and voluntary mental action. The theory that the administering of the oath so disturbs and agitates the prisoner's mind as to render his confession unworthy of belief has been shown to be invalid. One "may testify as freely as he may speak." (State v. Gilman, 51 Me. 206.) The analysis to which Prof. Wigmore has subjected this theory has disclosed its fallacious character. (Wigmore on Evidence, section 845, p. 963, vol. 1.)
The fact is, that the notion that the single circumstance that an oath is administered operates upon the mind so as to prevent free and voluntary action, is wholly fanciful, contrary to the experience which teaches us to receive testimony in other cases when given under the solemnity of an oath and loses sight entirely of the purely historical reasons which led to the prohibition against taking the testimony of accused persons under oath. The history of the rule against such examination shows that the reasons which prompted the rule are no longer applicable. The administration of an oath was the initial step in the proceedings existing in the ecclesiastical tribunals, and in the struggle which took place to restrict the jurisdiction of these tribunals, acts of Parliament were passed which attacked the practice of examination under oath. "The *Page 305 original motive for the Acts," says Mr. Lowell in an instructive article, "was not a dislike of the oath, but a desire to free laymen from the jurisdiction of these tribunals by prohibiting the first step in their regular course of procedure. As often happens, however, the means finally became an end in itself." (Judicial Use of Torture, 11 Harvard L. Rev. 293.) Another reason for the reluctance in taking the examination of an accused person under oath, was that at common law the accused was not competent to testify at all, and, therefore, it was not deemed lawful to examine him under oath. Neither of these reasons operate to-day and the rule that confessions made under oath upon an examination before a magistrate are inadmissible upon the trial rests upon no other basis than the theory elaborated by Judge SELDEN. From what has been said I think it is clear that the principle that a confession is necessarily and as a matter of law involuntary because given under oath, is without any support in reason. If voluntary confessions are receivable in evidence even if illegally obtained, there is no reason for making an exception to this general rule so as to exclude confessions simply because they are made under oath.
The only other case in this court which is identical with theMcMahon case, which has followed it, is the Mondon case. Judge RAPALLO in his opinion in that case said that it was "identical in all its essential features with the McMahon case" (p. 218), and it was decided upon the authority of that case. In his opinion Judge RAPALLO held the evidence inadmissible not only on the ground that the prisoner's statement had been made under oath, which was the only ground of the decision of the McMahon case, but asserted as an additional reason that the statute prohibited such an examination. This last ground that Judge RAPALLO urges in the Mondon case was expressly stated by Judge SELDEN in the McMahon case not to be a good ground *Page 306 for the exclusion of the evidence. Thus the two decisions in theMcMahon and Mondon cases, which are the only authorities in this court which can be claimed to furnish authority for holding that the defendant's confession to the coroner was inadmissible, are not only contrary to the decisions of this court in theHendrickson, Teachout, McGloin and Chapleau cases, but they are inconsistent with each other. Under these circumstances I think that we should declare the McMahon and Mondon decisions overruled, and accept as correctly indicating the rule to which this court will in the future adhere, the principle asserted in the Hendrickson, Teachout, McGloin and Chapleau cases. There is only one other argument, so far as I know, which has been urged against the adoption of this course, and that is that theMcMahon case has stood for over half a century, and that it should not now be questioned. The first answer to this argument is that it has not been unquestioned. The other cases in this court, with the exception of the Mondon case, have given to it only lip-service, while the reasoning in the Teachout andChapleau cases repudiated the fundamental principle upon which it rests. Indeed, in Brightly Danforth's notes to theHendrickson case, in tenth New York, they quote MULLIN, J., inPeople v. Montgomery (13 Abb. Pr. [N.S.] 251) to the effect "that the case of McMahon (supra) is overruled by that ofTeachout v. People (41 N.Y. 7), and the principle decided inHendrickson v. People (supra) reaffirmed, and, it is to be hoped, permanently established as the law of the State." In theMondon case, RUGER, Ch. J., and EARL, J., dissented from the opinion of RAPALLO, J. In other courts the reasoning of theMcMahon case has been attacked as unsound. Judge BENEDICT inUnited States v. Graff (14 Blatch. 380, 386) said: "I know of no authority binding upon the courts of the United States, which compels the holding that an arrest, or a charge of crime, orbeing sworn, or all three combined, are sufficient to exclude a *Page 307 confession that otherwise appears to have been freely made, without the influence of threat or promise." Assuming that it be true that the authority of the McMahon case has not been questioned in this court for over half a century, that fact furnishes no reason why it should not now be questioned. To follow the McMahon case is to perpetuate an erroneous principle in a most important branch of the law and to defend the authority of that case, not because it is sound but because we have grown accustomed to its error. Ample protection to the rights of a person accused of crime will be afforded if we overrule theMcMahon and Mondon cases, and adhere to the sounder principle declared in the Henderickson, Teachout McGloin and Chapleau cases, and the statutory rule embodied in section 395 of the Code of Criminal Procedure. If we are not to adopt this course and are still to recognize the authority of the McMahon case which held a confession not receivable in evidence because it was givenunder oath and not because it was taken in violation of the statute, then logically we are required to hold that the confession made under oath to the district attorney was also improperly received in evidence. The fact is, that there is no good reason for holding either of these confessions inadmissible. They were freely and voluntarily made. No threat was made or promise or hope of reward held out. The defendant was arrested shortly after the murder. She showed a complete willingness to confess her crime. The confession was not conclusive but merely evidence which the jury might consider in the light of any explanation that the defendant might offer. The question whether it was voluntary was submitted to the jury who were instructed to disregard it altogether if they were not satisfied that it was voluntary. The evidence justified their finding that it was voluntary. There remains to be considered the question whether in examining the defendant before the coroner her constitutional privilege against self-incrimination *Page 308 was violated. In considering this aspect of the case the alleged violation of sections 196 and 198 of the Code of Criminal Procedure is in no way involved. I can find no basis for the contention of counsel that the defendant was compelled to testify either before the coroner or district attorney. Her right to refuse to testify was explained to her. She knew that she had the option to speak or to keep silent. She chose to confess. She was not subjected to compulsion of any kind. She had the right to waive her privilege and did waive it when she consented to testify and answered all the questions put to her. It follows that her constitutional right was not violated. (Connors v.People 50 N.Y. 240; People v. Guidici, 100 N.Y. 503, 508;People v. Casey, 72 N.Y. 393, 399; People v. Tice,131 N.Y. 651, 657; Chamberlain v. Willson, 12 Vt. 491; Twining v. New Jersey, 211 U.S. 78.) The fact that the assistant district attorney asked the defendant if she wished to testify "in this proceeding" when there was not, strictly speaking, any legal "proceeding" before him, does not prove that he practiced deception upon the defendant. Before asking her if she was willing to make a statement he instructed her fully and fairly as to her legal rights. The circumstance that he used the word "proceeding" in warning her is wholly insufficient to warrant us in concluding that he practiced deception upon her.
For these reasons I vote in favor of affirming the judgment of conviction.