
    The People of the State of New York, Respondent, v. Thomas E. Bromwich, Appellant.
    First Department,
    December 3, 1909.
    Crime — amendment of indictment — right of accused to be confronted with witnesses — constitutional law — Federal guarantee applicable to trials in Federal court only—similar rights conferred by New York statutes — evidence — certificates of clerks of foreign courts inadmissible in criminal prosecution.
    Where an indictment charging the defendant with false registration by a clerical error misstates the election district in which he registered, the court in the discretion conferred by section 293 of the Code of Criminal Procedure'may amend the indictment at trial so as to state the,proper district, if the defendant' is not prejudiced thereby.
    In such prosecution the People cannot prove that the defendant was never naturalized in a certain city of another State, as claimed by him,, by putting in evidence certificates of the clerks of the courts of that State authorized to naturalize aliens, stating that they had examined the records covering the period involved and failed to find any declaration of the defendant’s intention to become a citizen or any record of his naturalization. This, because he is deprived of his right to be confronted with the witnesses against him.
    Such certificates are not made competent by section 921 of the Code of Civil Procedure, which provides that where an officer having legal custody of papers certifies that he has made diligent search for such paper and cannot find it, the certificate is presumptive evidence of the fact so certified as if the officer had testified personally, even though section 392 of the Code of Criminal Procedure makes the rules of evidence in civil cases applicable to criminal cases except as otherwise provided.
    
      Quare, as to whether the Legislature intended to make the provisions of section 921 of the Code of Civil Procedure applicable to certificates made without the State. ■
    The sixth amendment of the Federal Constitution,' guaranteeing to a defendant in a criminal prosecution the right to be confronted with the witnesses against him, applies to prosecutions in the Federal courts only. i
    But the same right of a defendant in a criminal prosecution to be confronted with witnesses against him is' conferred by our Bill of Rights (Consol. Laws, chap. 6, § 12) and by section 8 of the Code of Criminal Procedure, with certain exceptions.
    Although one of the exceptions contained in section 8 of the Code of Criminal Procedure is where the testimony of a witness on the part of the People, who cannot be found in the State, has been taken according to the provisions of section 219 of that Code, yet no such commission may be had by the People to take testimony without the State, except where the commission is obtained by the defendant and the People join therein to support the indictment.
    Hence, as the People of their own motion could not have examined the clerks of a foreign court on a commission even if the defendant had been allowed to cross-examine them, certificates made by such clerks can have no greater weight than their testimony and are inadmissible as they infringe his right to be confronted with witnesses against him.
    Appeal by the defendant, Thomas E. Bromwich, from a judgment of the Court of General.Sessions of the Peace in and for the county of Mew York, rendered against the defendant on the 28th day of January, 1908, convicting him of the crime of false registration, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    
      William E. Morris, for the appellant.
    
      Amos H. Stephens, Deputy Attorney-General, for the respondent.
   Laughlin, J.:

The indictment charged the defendant with the crime of false registration in registering in the fifteenth election district of the thirty-first assembly district of the county of Mew York on the l'2th day of October, 1907, for the general election to be held on the fifth day of November thereafter, he not being at the time a citizen of the United States or a resident of that election district. By a clerical error in the indictment the. number of the assembly district in which the defendant registered was erroneously stated to be the thirty-first when it was the thirty-fifth. On this appearing, shortly after the commencement ■ of the trial, the Attorney-General moved- to amend the ■ indictment by substituting the word thirty-fifth ” for the word “ thirty-first ” in the designation of the assembly district. ‘ Counsel for the'defendant objected on the ground that the court Was without authority to allow the amendment, and in answer to questions put by the court also claimed that the amendment would prejudice the rights of the defendant on the merits, and that he was taken by surprise. The court grantéd the motion to amend, and offered to give.the defendant an adjournment to prepárete meet the'indictment as amended. • An exception was duly taken, by the defendant, and his counsel stated that he asked for no adjournment. That exception is urged as ground for reversal, and since it goes to the merits we should expresss an opinion thereon. Section 293 of the Code of Criminal Procedure provides as follows: “ Upon the trial of an indictment, when a variance between the allegation therein and the proof in respect to time, or in the name or description of any place, person or thing, shall appear, the court may, in its judgment, if the defendant cannot be. thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury,, as the court may deem reasonable.”

The amendment related to the descrijition of. the places where the crime was committed, and we are of opinion that it was clearly authorized by this section. * ■

The People presented evidence tending to sustain the false registration upon the issues presented by the indictment and the plea of not guilty both with respect to whether the defendant was a citizen and entitled to register anywhere, and with respect to whether he was a resident of the election district in which he. registered and would be such for the period of thirty days prior to the election. The evidence was sufficient to sustain the conviction on the ground that the defendant was not a resident of the district, but the evidence was conflicting upon that point and both issues were submitted to the jury. It cannot be known, therefore, from the verdict but that the conviction was upon the ground that the defendant was not a citizen of the United States. Upon the issue of citizenship the People offered a deposition made by the defendant before the inspectors of election at the time he registered, in which he stated, among other things, that he was forty-five years of age ; that he was born in England; that he was naturalized at Bridgeport, Conn., in the year 1887 and that he had never before voted. The People then called two deputy superintendents of election to testify to an interview between them and the defendant at the time one of them served a subpoena upon him to attend forthwith before the State Superintendent of .Elections on the twenty-ninth day of the month in which he registered. Their testimony was in substance that he stated that lie had his first papers but not his second papers; that he received his first papers in Bridgeport, and that-he Siiid “something about his papers being burned in a fire,” and that the captain of the election' district promised to have his papers for him on election day, but neither óf them testified that he expressly stated, that he ever obtained his second papers and they did not ask him any questions. Their testimony did not clearly show an ad mission on the part of the defendant that he never obtained his . first papers, and it was open to the construction that he meant that he still had his first papers and that his second papers had been destroyed by fire. The People then proved the courts which were authorized to naturalize citizens in Bridgeport, Conn., and offered in evidence.a certificate from the clerk of each of, the courts under his hand and the seal of the court, and in some instances exemplified by the presiding justice of the court and in some instances not exemplified at all, to the effect that he had examined the records of the court from the year 1875 to December, 1907, and failed to find in said records any declaration-of intention of Thomas Ernest Bromwich to become a citizen or any record of his naturalization. The defendant objected to the reception of these certificates on the ground that they were incompetent and that they purported to certify to what was not in court records, and should . not be received : without first calling the witness who made them to testify to the search' which he made and that they, were.not properly exemplified and after several had been admitted the further objection was taken that the .witness should be produced so that he could be cross-examined, but the objection was not taken-that it was in violation of his light, to be confronted with the witness. After the People rested their case counsel for defendant requested the court to take from' the jury the question, of citizenship, on the ground that the corpus deUcii could not be proved by admissions of the defendant and that the certificates could not be deemed proof of the facts certified without contravening defendant’s right guaranteed by .the Federal.and State Constitutions to be confronted by his accusers,. but neither were the provisions of the Bill of Eights nor of section'8 of the Code of Criminal Procedure drawn to the attention of the trial-court by the Deputy Attorney-General, who then represented the People, nor have they been drawn to our attention or discussed by either counsel on the appeal. The objections were overruled and the certificates were, received and read in evidence. We are of opinion that this was error. Counsel for the People contends that the certificates were competent under the provisions of section 921 of the Code of Civil Procedure, which provides as follows : “ Where the officer, to whom the legal custody of a paper belongs, certifies under his hand and official seal that he has made diligent examination in his office for the paper, and that it cannot be found, the certificate is presumptive evidence of the facts so certified, as if the officer personally testified to the same.”

Eeliance is placed on section 392 of the Code of Criminal Procedure, which provides as follows : “ The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.”

It is at least doubtful whether the Legislature intended that the provisions of section 921 of the Code of Civil Procedure should apply to certificates made without the jurisdiction of this State. There is room for argument that if the Legislature had intended to allow the use of certificates of this nature, which are not very satisfactory evidence and are open to mistakes if not abuse, made without the State, it would have required that the signature of the elerk and the seal of the court be authenticated. There is no limitation in the provisions of the section, and if they were not intended to apply to certificates made within the State only, then they authorize the use of such certificates made anywhere in the world. Moreover, even if that section were applicable, it is hot entirely clear that these certificates contained evidence of the nature authorized by its provisions, and it is manifest that in some respects the evidence they contain wrould not be authorized, for they relate in part, at least, not to the inability of the clerk to find a record, but to the contents of the records found. If it had been intended that this section should apply to certificates from all over the world, it would seem that the Legislature would have taken the precaution to have required that they be exemplified in a manner that would tend to insure their genuineness and reliability, as was done by the Congress with respect to the public acts, records and judicial proceedings ” of other States, to which each State, by virtue of section 1 of article 4 of the Federal Constitution, is inquired to give full faith and credit. (See Trebilcox v. McAlpine, 46 Hun, 469.) It may be further observed that it is improbable that the Legislature intended to provide for the admission in evidence of certificates from other States and countries other than those for which Congress has provided, although, of course, it would be competent for the Legislature to enact less stringent rules if it saw tit, but it could not require more than is required by the Federal Constitution and acts of Congress, so far as they are applicable. The fact that the Legislature has not attempted to provide for the admission in evidence of the judicial, records and proceedings of other States, but has left that entirely to be governed by the provisions of the Federal statutes, and has merely provided for the authentication of such records from foreign countries (Code Civ. Proc. §§ 952, 953 ; Trebilcox v. McAlpine, supra; Van Deventer v. Mortimer, 56 Misc. Rep. 650), is significant as indicating that the provisions of this section do not relate to certificates made without the State.

In the view we take of the case, ho vs ever, it is not necessary to decide that question on this appeal. Our State Constitution contains no provision similar to the 6th amendment of the Federal Constitution, which provides as follows : “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the.crime shall have been committed, which district .shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”

It has been held by .the Court of Appeals that this provision of the Federal Constitution applies to criminal prosecutions in the Federal courts only, and that a defendant in a criminal prosecution in a State court is not entitled to the benefit thereof. (People v. Fish, 125 N. Y. 136, 151.) The same protection that is afforded-by the Federal.Constitution to a defendant in a criminal prosecution in the Federal courts is afforded by dur Bill -of Eights (R. S. part 1, chap. 4 [1 R. S. 94], § 14; now Consol. Laws, chap. 6. [Laws of 1909, chap. 14], §12) to a defendant in a criminal prosecution in the courts of this State. That provision of our Bill of Eights is as follows: “In all criminal prosecutions,, the accused has a right to a speedy and public trial, by an impartial jury, and is entitled to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; and to have compulsory process for obtaining witnesses in his favor.” Cooley in his work on Constitutional Limitations (7th ed. p. 450) says: “The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court. The defendant is entitled to be confronted with the witnesses against him ; and if any of them be absent from the Commonwealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances; but they are far from numerous.” (See, also, Cooley, supra, p. 450, note 1, and People v. Lambert, 5 Mich. 349.)

There being no guaranty in this regard in our Constitution, it would be competent for the Legislature, which enacted the Bill of Bights, to maké exceptions thereto, and since the Legislature has provided that the rules of evidence shall be the same in criminal as in civil cases, if the provisions of section 921 of the Code of Civil Procedure authorize the reception in evidence of a certificate made without the State, there might be room for- argument that this should be regarded as an exception to the Bill of Bights. Any doubt there might be on that point is removed by the provisions of section 8 of the Code of Criminal Procedure, which, so far as material, are as follows: “In a criminal action the defendant'is entitled: * * *

“ 3. To produce witnesses in his behalf, and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has either in person or by counsel cross-examined or had an opportunity to cross-examine the witness, or where the testimony of a witness on the part of the people has been taken according to the provisions of section two hundred and nineteen of this Code, the deposition of the witness may be read upon its being satisfactorily shown to the fcourt that he is dead or insane, or cannot with due diligence be found in the State.”

The admission of these certificates in evidence is not authorized by any of the exceptions contained in this subdivision. Moreover, it is to be borne in mind -that no commission may be had by the People for the purpose of talcing testimony without the State, except in those instances where a commission is obtained by the defendant, in which cases the People are- permitted to join in the commission and to examine witnesses in support of the indictment. (Code Crim. Proc. §§ 636-643.) It is, therefore, clear that the People could not have obtained a commission to examine the clerks of these courts at Bridgeport, Conn., and since the clerks of the courts could not' have, given testimony without the - State, even with the privilege to the defendant of cross-examining them, it would séem to follow that their certificates could not be given greater weight than their testimony, with the records before them, for the 6 certificates in thesé instances are not certificates with respect to what was found in the ‘ records, but certificates as to what was not found, and, therefore, they necessarily depend upon the acts of the clerks who made them, and their weight and value depend upon the diligence of the searches made by them. It would be competent to prove the fact by the testimony of the witness, but not by his certificate, (City of Beardstown v. City of Virginia, 81 Ill. 541.) Furthermore, it is to be noted that the rules of evidence in civil cases are only made applicable to criminal cases where it is not otherwise provided in the Code of Criminal Procedure, and even though in a civil case the certificates might be admitted in evidence by the express terms of the provisions of section 8 of the Code of Criminal Procedure, their admission in evidence in a criminal case contravenes the rights of the defendants to be confronted with the witnesses.

It may be said that this decision.will render it difficult to prove that a person was not naturalized in another State. The answer to that objection is that it will be no more difficult than in other criminal prosecutions in which the issuance of commissions in behalf of the People has not yet been authorized, and moreover the inspectors of election are authorized to require the production of naturalization papers or certified copies, and could not be 'compelled .to register without one or the'other unless other evidence winch satisfies a majority of them of' his right to register is presented to them. (Election Law [Glen. Laws, chap. 6; Laws of 1896, chap. 909], § 34, snbd. 8, as amd. by Laws of 1905, chap. 675; now Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 174.)

. It follows, therefore, that the conviction múst be reversed and a new trial granted.

Patterson, P. J., and Clarke, '«L, concurred; Ingraham and McLaughlin, JJ., concurred in result.

Judgment reversed and new trial granted. Settle order on notice.  