
    Supreme Court—General Term—first Department.
    
      October, 1882.
    PEOPLE v. McGLOIN.
    (Affirmed, 1 H. Y. Grim. Bep. 154.)
    Statement of Peisonee, when admissible against him.— Code of Oeiminal Pboceduee, §§ 198-200, 395.—Sentence foe Felony does not Disqualify Witness.—3 R. S. (Banks’ 6th ed.) 994, § 43; Penal Code, § 714; Code of Civil Pboceduee, § 832.
    The defendant upon his arrest was told by an inspector of police that he had “seen him do several things,” and try to commit a felony the night before his arrest, and that he knew of his pledging the pistol with which the murder with which he was charged, was committed. The inspector made no threats and held out no inducements. The prisoner consenting to make a statement, a coroner was sent for, and defendant, being first told by the coroner that he had a right to refuse, and should consider well before he did so, made a statement regarding the murder. Held, admissible in evidence against the prisoner as a confession, it not having been made under the influence of fear produced by threats.
    That such a confession was made under oath does not render it inadmissible. People r. Teachout, 41 N. Y. 7.
    The provision of the Revised Statutes, 3 B. 8. (6th Banks’ ed.) 994, § 43,—that a person sentenced upon a conviction for felony, is incompetent to testify,—has been repealed by implication by section 832 of the Code of Civil Procedure (as amended by L. 1879, ch. 542), and the corresponding section 714, of the Penal Code, and persons, after conviction and sentence, are now competent to testify.
    Appeal from a judgment of the Court of General Sessions for the city and county of New York of March 6, 1882, Recorder Smyth, presiding, convicting the defendant Michael E. McGloin, of murder in the first degree.
    The indictment contained two counts: the first charging the killing of Louis Hanier while the prisoner and others were engaged in the perpetration of a felony, and the second charging that the prisoner with others made an assault upon the said Hanier witli a pistol with the deliberate and premeditated intent to kill him, and in pursuance of such intent did so kill him.
    The evidence is fully set forth in the following opinions of the General Term.
    There was no direct proof whether the written statement signed by the prisoner and taken down by Coroner Herman was or was not sworn to. The form of the statement implies that it was taken under oath, and this was the theory of the defense ; while Inspector Byrnes, in whose presence it was taken, testified that the prisoner was not sworn by the coroner.
    
      Howe & Hummel, attorneys, for defendant and appellant.
    —The statement of McGloin was erroneously admitted in evidence. I. It was not voluntary. Inspector Byrnes testified that after the conversation hereafter given in the opinion of the court, Coroner Herman came to police headquarters and took McGloin’s statement. The inspector had informed the prisoner that he had seen him trying to steal a barrel of whiskey the night before he arrested him. Having thereby informed the prisoner that he had seen him committing a felony, he in effect told him that it was in his power to lock him up on this charge. This was a positive threat, and the confession which followed it was not a voluntary one. Even the statement itself shows that the coroner used language which has always been held to render a confession inadmissible. It is as follows : “ Coroner Herman also called my attention to the fact that I should consider well before I made a statement, as he would ask more from me regarding the shooting of Mr. L. Hanier.” Greenleaf cites, among numerous instances where a confession has been excluded, the following: “ There the prisoner’s superior officer in the police said to him 1 How be cautious in the answers you give me to the questions I am going to put to you about this watch.’ The confession was held to be inadmissible.” 1 Greenl. Ev. § 220. The spirit of the authorities is to exclude a confession while any extraneous influence has been brought to bear on the mind of the prisoner: People v. McMahon, 15 N. Y. 385; Commonwealth v. Knapp, 9 Pick. 496; United States v. Nott, 1 McLean, 501. The following reasons are sufficient to show why the confession was not competent: first, the prisoner was under duress and in the power of the police official who had aroused his fears by telling him that he had seen him committing a felony; second, the spirit of the law is opposed to taking advantage of that which is conclusively proven to be obtained by intimidation. 1 Greenl. Ev. § 219 ; 1 Phillips Ev. 401; 2 East P. C. 659 ; People v. Bate, 11 Cox Crim. Cas. 686 ; People v. McMahon, supra; People v. Phillips, 42 N. Y. 200; Roscoe Crim. Ev. 39; Jeffords v. People, 5 Park. 547; Commonwealth v. Cullen, 111 Mass. 435; Commonwealth v. Morey, 1 Gray, 461; People v. Wentz, 37 N. Y. 303; Cox v. People, 19 Hun, 430; affirmed, 80 N. Y. 500. It might be contended that the fact that the coroner had stated to McGrloin “ that he was at liberty to make a statement or not” made the confession competent. But where a confession has once been induced by such means as were resorted to by the inspector, all subsequent admissions of the same or like facts must be rejected, for they may have resulted from the same influences. Starkie Ev. (ed. 1824) 49; United States v. Chapman, 4 Am. Law J. N. S. 440. Where the act of the person obtaining the confession was construed to be a threat producing fear, the confession was always excluded. People v. Wentz, 37 N. Y. 303 ; Cox v. People, 80 N. Y. 500; affirming 19 Hun, 430; Balbo v. People, 80 N. Y. 484.
    II. The deposition or confession should not have been received because the prisoner was sworn. Section 198 of the Code of Criminal Procedure expressly prohibits the swearing of the prisoner. And this was the rule before the enactment of the Code. 1 Greenleaf, § 225 ; People v. Hendrickson, 1 Park. 396; 10 N. Y. 13. The statement contained all that is required by the statute in reference to an oath. People ex rel. Churchill v. Rensselaer Common Pleas, 6 Wend. 543 ; Jackson ex dem. Merritt v. Gumaer, 2 Cow. 552. The objection to the confession was that it was a sworn statement of a person accused of crime, on his examination before a magistrate. People v. Hendrickson, supra ; People v. McMahon, 15 N. Y. 385; Teachout v. People, 41 N. Y. 7. And the requirements of sections 196-200 of the Code of Criminal Procedure were not complied with. The coroner is a magistrate (Code Crim. Proc. §§ 146, 780), and he had authority to hold the examination. Code Crim. Proc. §§ 198-200.
    III. It being proven that the witness Banfield had been convicted and sentenced for two felonies, his testimony was incompetent. 3 P. 8. (Banks’ 6 ed.) p. 994, § 43. This statute is perfectly consistent with the provisions of the Code of Civil Procedure, § 832 (as amended by L. 1879, ch. 542.) A person may testify after conviction and before sentence.
    
      John Vincent, assistant district attorney, for the people, respondent.
    The jury were justified in finding premeditation and deliberation. He did an act which had a direct tendency to destroy human life, and the natural conclusion is that he intended to kill. 1 Greenleaf Ev. (7th ed.) § 18; Commonwealth v. York, 9 Met. 93; Commonwealth v. Webster, 5 Cush. 386; Yan Pelt v. McGraw, 4 N. Y. 110, 114; Leighton v. People, 10 Abb. N. C. 261, 269; Sindram v. People, 88 N. Y. 196. There is no evidence that the confession was extorted through fear, and it was admissible. Cox v. People, 80 N. Y. 500; Willett v. People, 27 Hun 469.
    II. The objection to the evidence of the witness Banfield, that he had been sentenced on a conviction of felony was not made on the trial and cannot be raised for the first time on appeal.
   Brady, P. J.

The prisoner was indicted for the commission of the offense of murder in the first degree. There were two counts in the indictment. The first charged the killing of one Hanier while the prisoner with others was engaged in the perpetration of a felony, the second count charges that the prisoner with other persons having on December 30, 1881, made an assault upon the person of the deceased with a pistol loaded with powder and ball, and with a deliberate and premeditated attempt to kill Hanier, and in pursuance of such deliberate and premeditated intent did kill him. On the trial, proof having been given tending to show the commission of the burglary in which the prisoner had participated, and of circumstances also tending to establish the fact that the prisoner-while so engaged fired the fatal shot, a statement made by him before one of the coroners of this city, was offered in .evidence. This statement is a confession of the crime of burglary and the shooting of the deceased by him. Its reception in evidence was objected to on his behalf, upon the ground that it had been obtained by threats and improper influence, and was not in conformity to the provisions of the. statute in reference to statements made before magistrates.

It appeared in regard to it that the prisoner was arrested by Inspector Byrnes, to whom he said that he did not know what he was charged with, whereupon he was told that he was charged with the shooting of Louis Hanier. He was then asked by the inspector if he knew who he was, and was told by the latter that he was an inspector of police. The inspector then said, “ I told him I saw him do several things and try to steal in South Fifth avenue the night before I arrested him. I told him I had been watching him since the shooting and saw him in company with a man named Healey, and saw him try to steal a barrel of whiskey the night before I arrested him.” He also said, “ I told him about the pledging of the pistol” (that is, the pistol with which the shooting was done). In answer to a question by the court: “ Did you make any threats to this man ?” Inspector Byrnes said, Ho, I did not.” He was then asked by the recorder, Did you hold out any inducement to him?” and he answered, “Ho sir, I did not, not any.” • And further, “ You merely stated what you did ?” and he replied, “ Yes sir,” and further; “ and that you were an inspector of police ?” and he replied, “ Yes sir.” The inspector then further testified : “ MeGloin said he would make a statement. I said I would send for Coroner Herrman to take- it.” And it appears by the statement that MeGloin was informed by Coroner Herr-man of the matter which was before him, and that he had the privilege and right either to make a statement or not. It also appears by his confession that the coroner called his attention to the fact that he should consider well before he made a statement, as he would ask more from him regarding the shooting of Iianier. It does not appear, however, from the statement itself that any questions whatever were asked by the coroner.

The statement which is contemplated by the statute is regulated by the provisions of the Code of Criminal Procedure, sections 198, 199 and 200. But these provisions apply to an examination before a magistrate for the purpose of ascertaining whether or not a crime has been committed, and not to any proceeding before a coroner. The statement, therefore, cannot be declared to have been taken under or in reference to these provisions ; indeed, it must be regarded entirely as extra-judicial. It is governed and controlled, therefore, in its value and effect by section 395 of the Code of Criminal Procedure, which provides that a confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats. Whatever may have been the'rule prior to the enactment of this section, the law o.f this State is now settled by its features, because the objection to the confession is limited, it would seem, to the proposition that it was made under the influence of fear produced' by threats.

In this case it is quite evident that no threats were made and no inducements held out. Inspector Byrnes advised the prisoner that he had been watching him and knew of certain acts that he had committed, and that is all; and the prisoner, before he made his statement, was duly advised that he was under no obligations to make it, and that he should consider well before so doing. There seems to be no doubt that a confession under such circumstances would have been admissible prior to the enactment of the statute to which reference has been made

It was declared in the case of Cox v. People (80 N. Y. 515), that it was not sufficient to exclude a confession by a prisoner that he was under arrest at the time it was made, or that it was made to the officer in whose custody he was, or in answer to questions put by him, or that it was made under hope or promise of a benefit of a collateral nature. In that case the officer who made the arrest said to Cox, “ You’re in a bad fix,” which was substantially what Inspector Byrnes said to the prisoner here, when he informed him that he had been watching him and knew of certain acts of his, including the pawning of the pistol with which the fatal shot was fired.

But the section in the Code of Criminal Procedure, in phraseology at least, limits the objection to a confession to the ground simply that it was made under the influence of fear produced by threats; and, therefore, no matter what may have been the rule heretofore, as already suggested, if the confession was not the result of fear produced by threats, or it may be by inducements held out, if the statute should ultimately be so construed, it may be admitted in evidence against the prisoner.

For these reasons it is considered that this objection to the reception of the confession was properly overruled. It was also urged against the reception of the confession that it was one to which the prisoner had been sworn, and which made it, it was contended, particularly objectionable under the authorities. The learned counsel for the prisoner seems to treat the confession as a statement made by a witness upon an examination in a proceeding before a magistrate. We have seen that this view' cannot be sustained. It was not. taken during the ordinary investigation which takes place before a coroner as to a death and its cause, nor was the prisoner a witness. Not only that, but he knew the offence of which he was charged, and made the statement, after being advised of it, and voluntarily.

In the case of Teachout v. People, 41 N. Y. 7, the subject of verified statements was considered and questions relating to them determined, and it was held that the statement of a person advised that he was charged with an offense, and made when examined as a witness, might be given in evidence against him, notwithstanding that it was made under oath and in a proceeding which related to the crime itself. If the confession, therefore, should be regarded as the prisoner’s statement upon the stand as a witness, after having been advised, as he was, of the charge made against him, it would have been admissible on the authority of the case cited, and the exception founded on the. proposition just considered is therefore unavailable. The objections to the admission of the confession thus considered were properly overruled for these reasons, and the confession itself properly admitted in evidence. It is also urged, on behalf of the prisoner, that the testimony of one Frederick Banfield, who had been convicted and sentenced for the commission of a felony, and had not been pardoned should not have been received in evidence, although no objection was made on the part of the prisoner to his examination or to the testimony which he gave. His evidence related to statements made by the prisoner to him affecting the question of his guilt. The objection rests upon the section of the Eevised Statues, which declares that a person who is sentenced for the commission of a felony shall not be competent to testify in any cause, matter, or proceeding, civil or criminal, unless he be pardoned by the governor or by the legislature, except in cases specially provided by law. 3 R. S. 6 ed. Banks, p. 994, § 43.

By chapter 448, Laws of 1876, section 832, it was declared, however, in antagonism to this section, that a person convicted of a crime or misdemeanor is, notwithstanding, a competent witness, but the conviction may be proved for the purpose of affecting the weight of his evidence, and a doubt having arisen as to whether the section applied to criminal prosecutions, the legislature, in 1879, in order to remove it (see chap. 542, Laws of that year), amended the section by adding, after the words “ competent witness,” the words “in a civil or - criminal action or special proceeding.” The same provision is contained in section 714 of the Penal Code, passed in 1881.

The witness objected to, had not only been convicted, but sentenced, and the counsel for the plaintiff in error thinks because of the latter incident the provisions of Eevised Statutes referred to apply, and not those of the Code. He contends that the legislature, not having in express words repealed them, intended, by leaving them thus unrepealed, to make a distinction between criminals convicted and sentenced, allowing the former to be witnesses and the latter not.

This view, assuming that the plaintiff in error has the right to present the question involved for consideration, cannot be sustained. It is the conviction, and not the sentence, which creates the objectionable event in the life of the witness and is the primary cause of his disqualification. A person convicted might not be sentenced before being called as a witness, either because of delay in the performance of that ceremony, or because of the suspension of judgment. The sentence is the result of the conviction, and pronounced as a punishment for the crime committed, and is therefore secondary in its nature. The greater includes the lesser. The provision of the Revised Statutes is repealed by implication because it and that in the Code are utterly inconsistent with each other.

It would be absurd to hold that the legislature intended to absolutely disqualify as a witness a person who was sentenced for the commission of a crime, and to preserve his qualification if only convicted. The legislation of 1876 and 1879, was designed to affect the existing rule on the subject and to abrogate it; see note to section 832 in Throop’s Code, ed. 1877 ; and it may well be, if the matter were at all considered in the respect mentioned, that the conviction was regarded as the first and most salient, and therefore controlling incident in the element of disqualification, as it certainly is. For these reasons it is: thought that the evidence of Banfield was properly received. It is further contended that there should be a new trial by reason of the refusal to grant a request to charge. The first count to the indictment, as we have already seen, charged the defendant with having committed a felony, and whilst so engaged, with having killed the deceased.

Section 395 of the Code of Criminal Procedure provides as follows : “A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him unless made under the influence of fear produced by threats or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor ; bul it is not sufficient to warrant Ms conviction without additional proof that the crime charged has been committed. ” In reference to which the prisoner’s counsel requested the court to charge :

“ That in order to convict on the first count of the indictment, the jury must be satisfied beyond á reasonable doubt: 1st. A burglary or larceny was committed by the prisoner; 2nd. That whilst so engaged in the commission of either or both of said offenses, the prisoner killed the deceased. Before the jury can consider the proposition as to the killing whilst in the perpetration of a felony, they must find that there was evidence, exclusive of the confession of the prisoner, that the felony had been committed. That the prisoner’s alleged confession is not sufficient to warrant the juryin finding affirmatively, that the offense of burglary or grand larceny, or both of said offenses, had been committed, without additional proof on the subject.” Which the court refused, and exception was taken to such refusal.

This request, at first, seems formidable, but upon examination it clearly appears that the refusal to charge it was correct. The proposition is, that in order to convict under the first count, the jury must be satisfied that a burglary or larceny was committed by the prisoner, and whilst he was engaged in the commission of either, or both, he killed the deceased.

It would have been error to charge this request, because the prisoner, under the first count of the indictment, might have been convicted of manslaughter, to accomplish which it would not have been necessary to establish either burglary or larceny, of which the jury were duly advised, not only in the general charge, but by the request of the prisoner’s counsel to charge, which was granted. He requested the court to charge the jury that they could under the indictment convict the plaintiff in error of manslaughter in the first degree, and the request was granted. If the request considered involved the proposition, that in order to convict the plaintiff in error of murder in- the first degree, under the first count of the indictment, it would be necessary to establish the elements expressed, it would have been erroneous to have refused to charge it. And that this view was taken of it by the learned recorder, is very clear from the fact that the next request to charge, and which was granted, was, that if the jury found the alleged confession of the prisoner to be the only evidence of the larceny or burglary, or both of these offenses, they could not convict of murder in the first degree, under the first count of the indictment. This was charging the law of the case as formulated by the prisoner’s counsel, and although it had been substantially charged before, was thus repeated. The jury was doubly instructed, therefore, that to justify a conviction of murder in the first degree, it was necessary, in accordance with the provisions of section 395 of the Code of Criminal Procedure, supra, to establish by sufficient proof thereof, in addition to the confession, that the crime charged had been committed,—i. <?., that a felony had been committed by the prisoner, and that, whilst engaged in the commission of it, he had killed the deceased.

The questions thus discussed are those only upon which the decision of this appeal rests, and having arrived -at conclusions adverse to the plaintiff in error, the judgment of the court below must be affirmed.

Daniels, J., concurred.  