
    The People, Plaintiff in Error, v. George H. Willett, Defendant in Error.
    The rule allowing the silence of a person to be taken as an implied admis-. sion of the truth of allegations spoken or uttered in his presence does not apply to silence at a judicial proceeding or hearing.
    Upon the trial of an indictment for murder, evidence was received on the part of the prosecution, under objection and exception, to the effect, that upon the coroner’s inquest a witness testified that shortly after the murder a stranger called at her house and asked the way to Sandy Hill and also for a drink of water ; that the prisoner with a number of others was placed around a room and the witness pointed out the prisoner as the one who so called ; also, that a number of persons, including the prisoner, passed behind her, each one repeating the question asked her by the stranger, and that she identified the prisoner by his voice, and that the prisoner on that occasion did not deny that he was such stranger. Held, that the examination before the coroner was of a judicial character ; that the experiments so made were part of the proceedings; that the prisoner was not bound to speak, and his silence could not be regarded as an evidence of guilt; and therefore that the evidence was improperly received.
    (Argued March 5, 1883;
    decided March 27, 1883.)
    Error to the General Term of the Supreme Oourt in the third judicial department to review judgment entered upon an order made September 5, 1882, which affirmed a judgment of the Court of Oyer 'and Terminer in and for the county of Warren, entered upon a verdict convicting the defendant in error of the crime of murder in the first degree. (Reported below, 27 Hun, 469.)
    The facts material to the question discussed are stated in the opinion.
    
      John L. Hill and H. A. Howard, district attorney, for plaintiff in error.
    Evidence of the experiments at the inquest to prove the identity of the prisoner with the man who was at Mrs. Wing’s house the night of the murder, was competent. (2 Wharton on Ev. [2d ed.], §§ 1136-1155; 1 Taylor on Ev. 680-1, § 812; Watson's Trial, 32 St. Trials, 347; Gibney v. Marchay, 34 N. Y. 305; 1 Phil. on Ev., C., H. & Edwards’ Notes [5th ed.], top-paging 357-9,* pp. 436-8, note, 127; People v. Kelly, 55 N. Y. 571.) The mere fact that the prisoner was then under arrest is not important, provided his acts were voluntary. (People v. Mentz, 37 N. Y. 303; People v. Greenfield, 23 Hun, 471; 85 N. Y. 75; People v. Kelley, 55 id. 571; People v. Teachout, 41 id. 7; People v. Reinhardt, 82 id. 607; People v. Thoms, 3 Park. C. R. 256; People v. Cox, 80 N. Y. 515; People v. Balbo, id. 499.) It was not a judicial proceeding. (People v. McMahon, 2 Park. C. R. 670; People v. Montgomery, 13 Abb. [N. S.] 251.)
    
      Charles Hughes for defendant in error.
    The evidence of what occurred before the coroner’s jury, and the prisoner’s silence when Mrs. Wing stated she thought she recognised the prisoner as the man she saw at her house on the night of the murder, was inadmissible. (Robb v. Hackley, 23 Wend. 50; Dudley v. Bolles, 24 id. 464.) The doctrine as to silence being taken as an implied admission.of the truth of allegations spoken or uttered in the presence, of a person, does not apply to silence at a judicial proceeding or hearing. (1 Wharton’s Cr. L. [7th ed.], § 696; Reg. v. Turner, 1 Moody’s Cr. C. 347; Melven v. Andrews, Moody & Mal. 336; Reg. v. Appleby, 3 Starkie’s N. P. C. 33 ; Wharton’s Cr. Ev., § 680; 123 Mass. 440; Broyle v. DeLong, 47 Ind. 251; Howard v. Howard, 69 id. 592; Berry v. Cooper, 33 Ga. 155; State v. Smith, 3 La. 457; 1 Greenleaf's Ev., § 197, note; Child v. Grace, 2 C. & P. 193; 1 Cow. & Hill’s Notes to Phillip’s ed., note 191, p. 193; Sheridan v. Smith, 2 Hill, 538; Kelly v. People, 55 N. Y. 571, 572; 126 Mass. 519, 522; 2 Allen, 34, 35; 12 Metc. 235; 10 Gray, 72, 75; 1 Am. Cr. Rep. 29 note; Com., v. Walker, 13 Allen, 570; 1 Greenleaf’s L. of Ev., § 49; 1 Wharton’s L. of Ev., § 391; 1 Greenleaf on Ev. [12th ed.], § 160; Com. v. Harvey, 1 Gray [Mass.], 487; 44 Ind. 72; Slattery v. People, 76 Ill. 217; Joy on Confession and Challenges, 323; Wharton’s Cr. Ev. 644; 11 Vt. 152; Fearing v. Kimball, 4 Allen [Mass.], 125; Com. v. McDermott, 123 Mass. 441; 16 Vt. 113; Gorton v. Hadsell, 9 Cush. 911; Bartlett v. Smith, 11 M. & W. 483; Law Review No. 3, for May, 1845, pp. 27-44; Vrooman v. King, 36 N. Y. 477, 478, 479; Hector v. State, 2 Mo. 135; Boyd v. State, 2 Humphrey, 39; Reg. v. Gould, 9 C. & P. 364; Whaley v. State, 11 Ga. 125; Fife v. Com., 29 Penn. St. 429; Simon v. State, 5 Florida, 285; Brister v. State, 26 Ala. 107; Clark v. State, 35 Ga. 75; State v. Squires, 48 N. H. 364; Thompson v. Com. 20 Grattan, 724; Com. v. Harmon, 4 Barr. 569; 1 Greenleaf on Ev., §2; Young v. Com., 8 Bush, 366; Kelley v. People, 55 N. Y. 565; People v. Wentz, 37 id. 303; People v. Teachout, 41 id. 7.)
   Miller, J.

This ease arises upon a writ of error, on behalf of the people, to review the judgment of the General Term of the Supreme Court, reversing judgment of conviction of defendant, on an indictment for murder in the first degree.

Hpon the examination before the coroner a witness, Mrs. Wing, was sworn who identified the defendant as the person whom she had seen at her house, on the night of the murder, a few miles from the place where the crime was committed, and with whom she had some conversation. Experiments were made before the coroner for the purpose of testing the recollection of Mrs. Wing. The defendant and others were placed around the room, and the witness was asked to pick put the person she saw at her house that night, and she designated the defendant. The same persons were made to pass behind her each repeating the words, as to asking for a drink of water, which, as she testified, had been used at her house on the night of the murder, and she was asked to detect by the voice the one who had used the same language at her house on the night in question, and she recognized the defendant’s voice as belonging to such person, The defendant did not deny, in answer to either test, that he was the person Mrs. Wing saw that night. These experiments were admitted as evidence upon the trial on the ground that the silence of the defendant was an admission of his guilt. The evidence was objected to and the objection overruled. It is claimed that the ruling of the court, in this respect, was erroneous. The same question was raised by the defendant’s .counsel on motion to strike out the evidence which was denied, and an exception duly taken. Also by a request to the court to charge the jury to disregard it, which was refused and an exception taken.

The question whether the defendant was bound to speak, and understood that he was at liberty to speak, if he chose, was submitted to the jury by the court in his charge, and an exception taken thereto. The doctrine as to silence being taken as an implied admission of the truth of allegations spoken or uttered in the presence of a person, does not apply to silence at a judicial proceeding or hearing. And if the proceedings before the coroner were of a judicial character the evidence was erroneously received. It is very apparent that the examination before the coroner partook of a judicial character, and what there transpired must be considered as a part of the proceedings; the coroner was there, a jury had been impaneled, and witnesses were examined whose testimony was returned as a portion of the coroner’s proceedings. It is difficult to see upon what ground it can be claimed that the experiments which were made were not in connection with the proceedings before the coroner and a part thereof.

The claim that they were informal and outside of the proceedings is not well founded, and it would be extremely difficult to draw the line between the other proceedings and these which are said to have been outside of them. We think the submission of the question to the jury, whether it was a judicial proceeding, was erroneous; the court should have held whether the proceedings before the coroner were judicial or otherwise, thus giving to the defendant’s counsel the benefit of an exception, if he chose to take one. The evidence in regard to the coroner’s proceedings was before the court, and it should have determined whether the facts referred to constituted a part of these proceedings, and it cannot, we think, be said that it was proper to leave the same to the jury, for the reason that it could have done no harm. It is very evident these experiments were made with a view of sustaining the correctness of Mrs. Wing’s testimony, and hence they constituted a part of the proceedings before the coroner. The evidence of Mrs. Wing was for the purpose of showing circumstances tending to prove that, the defendant was in the vicinity at the time of the commission of the crime, and his silence might be taken as assenting to that fact. It might well have affected the minds of the jurors that he thus remained silent, and did not deny that he was present at the time stated by Mrs. Wing.

Under the circumstances presented the proceedings before the coroner were clearly of a judicial character and the defendant was not bound to speak. His silence could not be regarded as an evidence of guilt.

There are other questions in the case, but inasmuch as they may not arise upon another trial we do not deem it necessary to consider them.

The judgment of the General Term should be affirmed.

All concur.

Judgment affirmed.  