Raymond E. Jackson was a native of the city of Albany, and kept a soft drink and ice cream parlor on New Scotland avenue near Allen street in that city. On the night of November 6, 1926, he was murdered while being robbed of his money. The defendant, Charles J. Doran, has been tried and convicted of the murder. *Page 412
Doran swore on the trial that he was twenty-three years of age, unmarried and a resident of Albany; that he had been and was a taxi driver, a friend and pal of another taxi driver named George Many, and of a man named Floyd Damp. These three had made it a business, so he testifies, of holding up and robbing citizens of Albany. No better description of him can be given than he gave of himself in his own words on direct examination by his own counsel. "It was about the fourth day I was working there, the first week I worked (at the Cadillac Taxi) that we went out on a holdup * * * why Slim, Duke, Damp and Many and myself went out on different holdups several times. Damp had a Buick car with him." Even after the murder on the night of November 6, 1926, he testifies: "Q. And did you continue that practice of driving cars for them? A. Why yes, I drove on a few holdups since." One of these holdups, so he tells us in his testimony on the stand, was to be the place on New Scotland avenue. Just prior to the night of November 6, he drove with the others to look the place over and hold it up, but at the time there were too many people about to commit the crime. They separated, making an appointment for Saturday night, November 6th, the night of the holdup and murder.
As all of this is told by the defendant himself upon the stand, in his direct examination, we start the discussion of this case with these conceded facts.
On the trial, Damp and Many were witnesses for the prosecution. Damp testified that he owned the Buick coupe and a 32-calibre pistol which he kept in the pocket of the car. He corroborates the defendant's testimony in saying that about a week previous to the 6th of November he, Doran and a man named Harrington drove out to Jackson's store to look the place over, and planned to rob it on the night of the sixth. When that night came the three drove out to Jackson's and Doran and Harrington went in to hold it up. He, Damp, having *Page 413 parked his car, followed to see what would happen. The 32-calibre pistol had been taken by Doran and an automatic gun had been given by Doran to Harrington. This automatic had been borrowed from Many. While the two men were in Jackson's place, Damp, who was on the outside near the door, heard a shot, and Doran and Harrington ran out. All three got in the Buick car and drove off. Doran said to him: "Step on it kid, I had to shoot him." George Many testified that on the next night, November 7, he met Doran on the streets of Albany and asked him why he had shot Jackson, and Doran said that he had to do it, as Jackson was reaching for a gun. He further swore: "And I asked Doran how much he got and Doran said eighty dollars. I said: `It was worth eighty thousand.' I asked Doran if there was anybody in the store at the time he robbed Jackson. Doran said a kid came in. Doran said he made the kid lie down on the floor. Jackson reached for a gun which laid on the counter. `I shot Jackson and ran out.' I asked Doran if he thought the kid would recognize him. Doran said: `I do not think so; I had my collar way up and my cap well pulled down.'"
Another witness was Frank Scheuer, who testified that on the night of the murder he met Doran in Albany, who told him that he had just shot a fellow. And the next night, Sunday night, Doran met him in a restaurant and said: "`Did you read about the murder in the paper this morning?' I told him `Yes,' and he said: `Well, that is the shooting I told you about last night.'" Again, from the lips of Arthur John Hall, in no way mixed up in these affairs, we have the story that he met Doran on the night of the murder some time after eleven o'clock in Albany and had a conversation in which Doran told him that there was a shooting affair on New Scotland avenue and to watch the papers the next day. Having read the papers, Hall said to Doran on Sunday, "That man in New Scotland avenue died," *Page 414 but Doran made no reply. Doran on the stand admits the substance of this conversation with Hall.
In Jackson's place on the night of the robbery, a gathering of young boys was being held in the basement of the place; it was their meeting room. One of these boys, Jack Shaddock, was coming in the front door of the ice cream parlor when he saw two strange men holding up Jackson, who cried out: "Help, kid, I am being robbed." One of the men forced the boy to lie down, face downward, and while in that position, he heard a shot, and the men run out. He identified Harrington, but could not see the face of the other man. Other persons in the neighborhood testified that the men in the holdup went off in a Buick car.
Doran confessed; he told the police officers and the district attorney all about the affair, and his own part in it. His confession was taken down in writing and admitted in evidence. His story does not materially vary from that of Damp's except that he claimed that the shooting was unintentional — an accident. He said in reference to the young boy Shaddock coming in: "And Chick [Harrington] was excited and started to run — he must have seen the kid coming in and I didn't know what was running off — I was faced looking out the window and the gun was like that [Illus.] and I turned around and the first thing I know I got a shove like that [Illus.] and then the thing happened, so I forgot all about — I forgot all about Ted being in there alone with him, and I didn't know what they were doing, and the first thing you know he came flying out at me.
"Q. Who did? A. Ted [Harrington]. He came flying right across me and caught me like that [Illus.] with the one hand, and the other hand went over my left shoulder and I had the gun in my hand and I couldn't swear whether the gun went off or not, but it must have, because he was shot."
To answer all this on the trial the defendant sought *Page 415 to deny his confession and to prove an alibi. The alibi consisted of the defendant's test mony that at the time of the shooting he was in a movie with his sweetheart, one Lucille Davis, a senior in the State College for Teachers. He attempted to support the alibi by her testimony, but she proved to be a doubtful witness. She admitted that she lied to Dr. Brubacher, the president of the State College for Teachers, and Dean Pierce, the head of the Women's College, in telling them that she was married to Doran. The doctor also denies that she ever told him that she was with Doran on the night of the murder. She had testified that while she had never told the police or any one in authority of Doran being at the movies with her, yet she had told it to Dr. Brubacher. This, I say, he denies.
This in substance is the case for and against Doran, and on the testimony I do not see how any jury could have come to any other conclusion than that he was guilty of having killed Raymond E. Jackson on the night of November 6, while in the commission of the crime of robbery.
One of the chief grounds thrust upon our attention as calling for a reversal of this conviction is the admission of Doran's confession. It is said that the court should have excluded it altogether from the case, as it was proved to have been made under the influence of fear produced by threats. (Code Crim. Pro. sect. 395.)
When the point in the trial was reached at which the prosecution sought to introduce the confession, the learned trial justice very fairly and in accordance with our procedure took testimony both for the prosecution and for the defense upon the question of whether or not the confession was voluntary or was the outcome of fear and violence. Upon this question there was a dispute of fact. Doran, called as a witness in his own behalf at this stage of the prosecution, testified that he did not know what he was saying because of the beatings which *Page 416 he had received from the police officers. Numerous witnesses, hereafter referred to, contradicted him and showed that the confession was made both to the officers and to the assistant district attorney voluntarily, and after Doran had been confronted both by Harrington and by Damp, who had confessed.
Here was an issue of fact. Who was to decide it? The jury. They heard all the testimony, and the court left it to them to say, after a very full and complete charge, whether or not the confession was voluntarily made, and instructed them that if they concluded that it was not voluntary, but had been obtained under the influence of fear produced by threats, they should throw it out of the case altogether, and disregard it. The judge told them that the People must prove and they must find it to be a voluntary confession before it could be received as evidence. This is not only according to the practice in this State in the trial of criminal cases, but is also the law. When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury with the direction that they should reject the confession if upon the whole evidence they are satisfied it was not the voluntary act of the defendant. (Wilson v. U.S., 162 U.S. 613, p. 624; Commonwealth v.Preece, 140 Mass. 276; Burdge v. State, 53 Ohio St. 512;People v. Howes, 81 Mich. 396; Thomas v. State,84 Ga. 613.)
This has been the practice in this State followed from an early day in a long line of cases. When the defendant raises the objection to the admission of the confession on the ground that it was not voluntarily made, it is the duty of the judge, if requested, to hear his evidence upon the question. It is error to refuse so to do. (People v. Fox, 121 N.Y. 449, 453.) When, however, upon this preliminary examination, an issue of fact is raised by conflicting testimony, the confession may be admitted and the question left to the jury whether it were the *Page 417 voluntary statement of the defendant. If not, they must disregard the confession and throw it out as no evidence.
In People v. Kennedy (159 N.Y. 346, p. 359) this court said: "If the defendant supposed there was any conflict in the evidence as to the circumstances under which his statements were made, or as to whether they were voluntary or otherwise, he should have requested the submission of that question to the jury." In People v. Rogers (192 N.Y. 331, at p. 345), Judge WILLARD BARTLETT, writing for the court, said: "The prisoner has always the right to require of the judge a decision as to the competency of evidence which is offered against him, and even after the judge has decided the evidence to be competent, the prisoner has the right to ask the jury to disregard it and give no weight to it because of the circumstances under which the confessions were obtained." And in People v. Brasch (193 N.Y. 46, at p. 57) this court, speaking through Judge HISCOCK, repeated: "It was the duty of the court preliminarily to rule on the admission of evidence of the confessions. It was proper in case an issue of fact arose in regard to their character and the circumstances which surrounded them to submit such issue to the jury at the close of the entire case." More emphatic still was this court in People v. Randazzio (194 N.Y. 147, p. 156), when Judge HAIGHT wrote: "If there is no conflict in the evidence with reference to threats, the question of the admission of confessions is for the court, but if there is a conflict the question ultimately is for the jury." To the same effect was the ruling in People v. Schermerhorn (203 N.Y. 57, at p. 71), where Judge WERNER said: "The question whether these statements were voluntarily made was fairly submitted to the jury and the verdict implies that these confessions were regarded as freely made." The practice was again approved in People v. Trybus (219 N.Y. 18, at p. 22); People v. Nunziato (233 N.Y. 394, p. 397); and was applied in People v. Stielow (161 N.Y. Supp. 599). *Page 418
By sections 419 and 420 of our Code of Criminal Procedure questions of fact are to be decided by the jury, and the court if requested must inform the jury that they are the exclusive judges of all questions of fact.
It may be that a question of fact created by Doran's testimony arose as to the voluntary nature of the confession. The jury, under proper instructions, and not the court, were the ones to determine this question of fact. No fault can be found with the very full and complete way in which the court instructed them upon this issue. In fact, no fault whatever is found with the judge's very able charge. For the judge himself to have determined this question of fact and to have excluded the confession altogether would have been going very far indeed toward usurping the functions of a jury, bordering almost upon arbitrary action.
And especially would this have been so in this case where very strong and convincing evidence showed Doran's testimony to have been false, and his confession to have been voluntarily made.
I will now present the reasons why the judge could not have taken the question from the jury and have decided it for himself without doing a grave injustice to the People, and exceeding his judicial powers.
Doran was not arrested until March 17, 1927. He was arrested in connection with holdups in Albany which he himself admits upon the stand and confessed to the assistant district attorney, John T. Delaney, that very night. Later it was learned after the arrest of Damp that Doran and Harrington were implicated in the killing of Jackson. Doran denied it until he was confronted by Damp and by Harrington in the Watervliet police station on the 20th of March, three days after his arrest. When he learned that these men had confessed, he, it is said, owned up and said that he might as well tell the truth. On the night of the 20th, Damp, Harrington and Doran were taken to the Watervliet police station by the direction *Page 419 of the assistant district attorney, John T. Delaney, who had charge of the case. Much point is made of the fact that these men were taken from Albany to Watervliet to be questioned by the authorities. Mr. Delaney swears that it was done according to his instructions to the police. He was the district attorney for the county, not for the city of Albany alone. Watervliet is within the county. He swears that he instructed the police officer, Peacock, to take these defendants out to Watervliet. When he attempted to state why he gave these instructions, the testimony was excluded on the objection of the defendant's counsel. He did not want the reason, although he now insists that the reason was an improper one. A reason may perhaps be found which explains if it does not justify. We all know the effects of gang psychology. Men are brave and falsely heroic when surrounded by the atmosphere of their gang and criminal associates. There is pride in crime as well as pride in virtue, and many a criminal, as we well know, takes pride in posing as a hero in the eyes and under the influence of his companions. When left alone or removed from the familiar atmosphere of such surroundings, the heroic does not appear quite so glowing, and the truth begins to demand utterance. No doubt the district attorney considered that these men would talk more freely in Watervliet than in Albany.
Doran says he talked and made his confession after being beaten by the police; that he was taken into a little office which had been partially used for a gymnasium in the police station, and there assaulted by the officers; that he was knocked unconscious frequently, his teeth loosened, his face and lip cut and bleeding; that his clothes were stained with blood; and that under these conditions he answered questions according to answers put into his mouth by the police officers, and that his confession taken down by the stenographer, Myers, through questions put by Mr. Delaney was made while he was *Page 420 in that condition. He did not know what he was saying.
To this testimony of Doran's there are so many contradictions from the circumstances and from witnesses that a clear issue of the fact was presented for the jury.
First. His statement itself when read bears evidence of calm and composure, and the statement of facts which the police could not have known. It is not a "Yes" and "No" statement, but that of one who talked freely. The following indicates what I mean. "Why, there was another fellow went around with him [Harrington]. I met the both of them; been around a little bit with both of them.
"Q. Had he ever gone out on any jobs before this Jackson job? A. Is it necessary to tell that?
"Q. Well, not if you don't want to. A. I would rather not."
Time and space do not permit quotations from this confession showing similar illustrations of Doran's self-control, freedom of narrative speech and his own choice of language.
Second. To believe Doran, would make perjurers of Dr. Vander Veer, a well-known physician of Albany, of William T. Whittemore, a newspaper man on the Sunday Telegram, of Officers Peacock, Coffey, Walsh and Geary, and not only brand the testimony of Assistant District Attorney John T. Delaney, and that of his stenographer, Frank Myers, as being absolutely false, but subject Delaney to charges of unprofessional conduct. That this rather harsh conclusion is not without foundation, let me more fully explain.
Doran says that the marks of the assault were visible on his person; that his lips were cut, and that he was beaten so badly about the face and body that he was rendered unconscious several times. He says that the stains of blood were upon his clothing, and that these things would have been evident to the persons who saw *Page 421 him. Within a few days after the 20th, the night of the confession, he was examined by Dr. Vander Veer. Doran swears that he told Dr. Vander Veer that his stomach was sore from the beating he had received. Dr. Vander Veer flatly contradicts him. He found no marks or indications of violence whatever on the defendant. Dr. Vander Veer swears the defendant said nothing to him about having been beaten, and that the tenderness in his stomach was due to disease.
Whittemore, the newspaper man, saw Doran in jail a few days after his confession, saw no marks of violence whatever, and Doran told him that he had not been abused.
The officers all testified that Doran was not struck or beaten, or treated with violence, neither was he threatened. They did urge and persuade him to tell the truth, and questioned him about his doings. When he saw Harrington and Damp and learned of their confession, he decided to tell the truth.
Doran says that Assistant District Attorney John T. Delaney was with him in Watervliet all the time he was there; that Delaney left him alone in the room with Officer Peacock; that when he, Doran, came out, he was bleeding and had been violently and brutally assaulted and that he then sat down and submitted to the questioning of Mr. Delaney. If this were true, Delaney must have seen and known of his condition and have acquiesced in the violence. Delaney and Myers, the stenographer, both swore that there was no evidence of violence on Doran's person; and that his statements were freely made.
If Doran's story be true, the principal police officials of the Albany police force, a district attorney of repute and a physician of standing have deliberately falsified.
Third. Another reason for disbelieving Doran. He was seen in jail in Albany within a very short time after his arrest by his sweetheart, Lucille Davis, and by members of his family. Not one of these persons testified to having seen any marks or evidence of violence upon his person. *Page 422 Fourth. In his confession Doran had told about Scheuer and Hall and his meeting with them on or about the night of the murder. From this confession the police got Scheuer and Hall, who would not tell the police about the talk with Doran until they were brought to see Doran and he advised Scheuer to tell.
Fifth. If Doran was making a false confession to having committed murder, and was doing it through fear of the police and as the result of their violence, he would have said that he had shot and killed Jackson. There would have been no quibbling about it. In his confession he in narrative form tells how the shooting was accidental and not intentional. Part of this I have quoted above.
Sixth. The character of Doran as shown by his testimony upon the stand did not make him a creditable witness.
Seventh. The confession as made by Doran is in harmony with his own testimony in most every particular except as to the events at the time of the shooting. And again he later in Albany corrected and added to his confession when it is conceded no violence was used.
In the face of this testimony in behalf of the prosecution how could the judge have ruled out the confession on the ground that it was made under the influence of fear produced by threats?
The officers frankly admit that on the night in the Watervliet station house when these confessions were being taken, Damp fainted and that they got him some whisky to stimulate him. Much has been made of this in the argument and in the discussion, as indicating that Damp must have fainted by reason of the violence used. Realization of the horrible deed which had been committed and that at last he had been discovered and was in the hands of the law must have had some effect even upon a hardened criminal. The onrush of the appreciation of guilt and its consequences have at times a tremendous debilitating effect. Peacock also admitted *Page 423 that at one time while talking to Doran in the gymnasium he had a boxing glove on his hand. For this reason it is said Doran must be believed and the confession thrown out. Peacock himself frankly tells of the incident. He denies, however, that he ever struck or threatened to strike Doran. This surely was a foolish thing for Peacock to do, but it was to be considered by the jury with all the other testimony in determining the truth or falsity of Doran's statement about the use of violence. It, together with his testimony, may have created an issue of fact, but it would not have justified the trial court in excluding the admission or of taking the issue of a voluntary confession from the jury. (People v. Trybus, 219 N.Y. 18, p. 22.)
Reviewing this case, therefore, as a whole, I think all the issues of fact were fairly left to the jury who heard all the testimony, saw all the witnesses, arrived at their conclusion apparently after a careful and discriminating consideration, and that we are not justified in disturbing their verdict because we may be of the opinion that the district attorney should have taken the defendant's confession in Albany instead of in Watervliet, or because the police authorities in their zealousness to unravel the Jackson murder did not immediately arraign the defendant after his arrest. Delay in arraignment does not exclude a confession. (People v. Trybus, supra.) Neither does the fact that officers of the law questioned the defendant persistently in regard to his connection with the crime (People v. Rogers, 192 N.Y. 331, p. 348), nor that they failed to warn him of his privileges or rights. (People v. Kennedy, 159 N.Y. 346,360; People v. Randazzio, 194 N.Y. 147.) That the confession was sworn to is likewise no objection. (People v.Mondon, 103 N.Y. 211, 219.)
Even when evidence has been procured through wrong acts upon the part of officials, it is not necessarily excluded. (Adams v. New York, 192 U.S. 585.) *Page 424
The defendant and Harrington were jointly indicted and were jointly tried. They had demanded separate trials, but the judge, exercising the discretion given to him by section 391 of the Code of Criminal Procedure, as amended by the Laws of 1926, chapter 461, decided that they should be tried together. Prior to this amendment, the defendants charged with a felony were to have separate trials if they so demanded; it was their right. The common law had been that where two or more defendants were jointly indicted they were to be tried jointly or separately in the discretion of the court. (People v. Vermilyea, 7 Cowen, 108; Rex v. Noble, 15 Howell's St. Trials, 731; U.S. v.Marchant Colson, 25 U.S. 480.) The Revised Statutes in 1829 (2 R.S. [1st ed. 1829] pt. IV, ch. 2) changed the common-law rule by providing that when two or more persons shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately. This remained the law through the Revised Statutes and the Code of Criminal Procedure (Laws of 1881, chap. 504, sect. 391) until the amendment of July 1, 1926. Section 391 now reads: "Defendants, jointly indicted, may be tried separately or jointly in the discretion of the court."
There is no question raised as to the power of the Legislature to restore the common-law rule. It is said, however, that the judge should have exercised his discretion by granting separate trials. The determination of the trial judge will not be reversed by this court unless there has been an abuse in the exercise of his discretion. (People v. Stockham, 1 Parker's Criminal Rep. 424; Webster v. People, 92 N.Y. 422; Knickerbocker TrustCo. v. O., C. R.S. Ry. Co., 197 N.Y. 391; People ex rel.Flynn v. Woods, 218 N.Y. 124; Matter of Whitman, 225 N.Y. 21. ) Unless there were circumstances or facts which would make it unfair to try the defendant with Harrington, there would of course be no abuse of discretion. The only suggestion that can be made why the two men should have *Page 425 been tried separately is that each had made a confession and that the confession would naturally be offered in evidence as against the person confessing. This in and of itself is not sufficient to make out an abuse of discretion in denying separate trials. The judge in this case was very careful in all his rulings, and in his charge to the jury to guard the rights of each defendant and to direct that the confession of the one was not evidence against the other. Besides, how far these defendants would go, if at all, in denying their confessions was not known until the trial was under progress. The mere fact that confessions had been made did not require the granting of separate trials. (2 Bishop's New Criminal Procedure, sects. 1018, 1019; Wharton's Crim. Procedure [10th ed.], vol. 1, sects. 360, 361; People v. Hotz, 261 Ill. 239; Ball v. U.S., 163 U.S. 662, p. 672; Emery v. State, 78 N.W. Rep. [Wis.] 145.) There was here no question of antagonistic defenses as the testimony of Harrington at the trial was in behalf of and not opposed to the testimony of Doran himself. We find here no abuse of discretion.
Another question has been presented which we may as well deal with at this time, although it is not here in such form as to constitute an error reviewable by this court. It relates to the challenges of jurors. Section 360 of the Code of Criminal Procedure provides that "when several defendants are tried together they cannot sever their challenges, but must join therein." The number of peremptory challenges in a crime punishable with death is thirty. The court ruled in this case that the defendants must unite in their peremptory challenges. His ruling, as is quite evident, applied only to peremptory challenges. The discussion arose over a motion by the respective counsel that each defendant be granted thirty peremptory challenges. The court ruled, in accordance with the wording of this section, that he would not accept a peremptory challenge except upon the defendants uniting therein. No ruling was asked for or made on any *Page 426 challenge for cause. The jury was obtained by the defendants uniting and exercising only sixteen peremptory challenges, so that there is in fact no ruling to review. (People v.Larubia, 140 N.Y. 87.)
The matter of peremptory challenges rests entirely with the Legislature. (People v. Cosmo, 205 N.Y. 91, 95, 97; People v. Dunn, 157 N.Y. 528, 535; Hayes v. Missouri.,120 U.S. 68, 69, 70.) If this were a question of challenges for cause, it would be another matter. The Legislature has no such discretionary power as to challenges for cause. The defendant, according to the due process of law, is entitled to a fair and impartial tribunal, including the jury. (Tumey v. Ohio,273 U.S. 510.) The Legislature could not take from the court the power to exclude a juror who had declared himself to be biased and partial or was related to a party or had an interest in the cause.
However, this question does not arise in this case, as the ruling related only to peremptory challenges. The court followed strictly the wording of the statute which said that defendants when tried together cannot sever their challenges, but must join therein. We take it that the interpretation given by the trial justice was correct. If it were intended to give to each of the defendants thirty challenges, this would have been a very clumsy way to express it. If each could exercise a challenge independent of the other, there would be no such thing as joining in a challenge. We note that in the case of People v. Snyder andGray, recently argued before us, the trial justice gave to each of the defendants thirty peremptory challenges, showing that there is some confusion in the application of this section. Until the Legislature modifies or changes the language of this section, we think it is wise to follow the plain meaning of the words used and give to all the defendants tried together for murder in the first degree only thirty challenges, as if there were but one defendant, and not multiply them according to the number of the defendants. *Page 427 This was the rule applied in civil cases under similar wording. (Downey v. Finucane, 205 N.Y. 251, 265.) This is also the method followed under similar statutes in State v. Rachman (68 N.J. Law, 120); Hamlin v. State (67 Md. 333); U.S. v.Hall (44 Fed. Rep. 883); State v. Wolf (112 Iowa, 458);State v. Dipley (242 Mo. 461). (See the cases fully reviewed in Am. Eng. Anno. Cases [Vol. 31, 1914A, p. 860].)
Neither would it do, on the other hand, to reduce the challenges by dividing the thirty among the defendants, giving in this case where there were two defendants only fifteen peremptory challenges each. The defendants under this section must unite in their challenges. Apparently this rule works no hardship as a jury was obtained after the exercise of only sixteen peremptory challenges, in which the defendants joined. It will be a very easy matter for the Legislature to change the wording of this section if it were intended or is intended to give to each defendant thirty challenges to be exercised without joining therein the other defendants.
For the reasons here expressed the judgment of conviction of the defendant, appellant, should be affirmed.