On April 6, 1939, Lois Tryon, a nineteen year old high school senior, left her home for an afternoon walk. She lived in a rural section of the town of York in Livingston County, and along the roads she traversed there were occasional farmhouses and barns. It was early spring in Central New York, the air was cold and the ground wet. Lois Tryon’s home was at the intersection of two roads, which ran northeast and southeast respectively, and these two roads with another road which ran north and south and which crossed the two roads just mentioned about a mile and a half from her home, made a
roughly triangular pattern each side about a mile and a half long and with Lois home at the apex or most westerly point of the triangle. Starting out on her walk between 2:30 and 3 o’clock on the fateful afternoon, she made her way along the road which formed the left hand side of the triangle, till she came to a candy store in the little hamlet or settlement of Wadsworth at the intersection of that road with the north and south road. After buying a candy bar in á shop at that intersection, she turned the corner and started south along the north and south, or Leicester-York road. Along that road the young girl passed several buildings, one of which is the home of defendant and his family, another a barn which housed cattle belonging to defendant’s family. Prom undis-putable testimony it appears that between 4:30 and 5 o ’clock that afternoon, the girl reached the next corner of the triangle, called Teed Corners, that is, the place where the north-south road crosses the (Peoria) road which would take her back home. No witness saw her turn that corner into the Peoria road and, aside from the confessions which we shall describe, there is no proof that she ever made that turning or started back toward home. About parallel to the north-south (Leicester-York) road and three or four hundred feet west of it, run the main line tracks of the Delaware, Lackawanna and Western Railroad. Those tracks cross the Peoria road at grade so that, if Lois Tryon did turn right and walk in a northwesterly direction along the Peoria road toward her home, she must have come to the railroad tracks a minute or so after she made the turn at Teed Corners. It appears that there was a footpath running south alongside the railroad tracks from the Peoria road and that there were some houses farther ■ south which could be approached from that footpath, so that it is not impossible that the girl, if she ever reached the railroad crossing of the Peoria road, there turned south and walked along the tracks.
Lois Tryon never reached her home. The next morning two railroad workers found pieces of her mangled body scattered along and near the southbound or westerly railroad tracks a quarter-mile south of Teed Corners. It is satisfactorily established from undisputable physical facts that she was hit and killed by a fast passenger train which at about 7:05 that evening
passed the place where her body was found. On her body were no marks indicating any assault by a human being — there is medical testimony negativing any sexual assault. The local peace officers and medical examiner conducted an investigation and questioned many persons (not including this defendant) but no important information was obtained and the investigation was closed.
Three and a half years later, on September 4,1942, defendant Joseph Cuozzo, who lived with his mother and brothers on a farm on the Leicester-York road a mile or so from the place where the girl’s body was found, was arrested by two deputy sheriffs of the county, on a charge having nothing to do with the death of Lois Tryon. Defendant, though twenty five years old in 1939, had the mentality of a child and was at best a mid-grade moron After his arraignment on the charge for which he was arrested on September 4, 1942, defendant, while having a meal that evening at a restaurant with the two deputy sheriffs, suddenly and for no apparent reason asked the deputy sheriffs whether they 44 had ever found out who killed the Tryon girl ”. The deputies at once reported to the sheriff this suspicious question and the sheriff immediately began to examine into the matter. Taking defendant to the barn on the Leicester-York road where defendant’s family kept their cattle, the sheriff there questioned defendant at length. Defendant, with little show of fear and none of sorrow, confessed that he had raped and killed Lois Tryon. That first oral confession ran like this: defendant said that on the afternoon in question, while riding in a truck with his brothers, on the York-Leicester road, from his home to the barn, he saw the Tryon girl walking south in that road, that when his brothers went into the barn to do their chores, he (defendant) followed the girl and caught up with her before she reached Teed Corners. We digress to say that the place where in his first confession he says he met the girl is important, since it afterwards appeared that other persons had seen her that afternoon, unaccompanied by defendant, at a place several hundred feet farther south on the York-Leicester road and just north of the Teed Corners intersection with the west bound or Peoria road. We note also at this point, for a better understanding of the numerous, and in many respects contradictory, confessions, that no one
was ever found who had seen defendant with the Tryon girl, that afternoon or at any other time. The first confession continued thus: defendant said that, meeting the girl at a point north of the Teed Corners intersection, he walked along and talked with her, went with her around the corner into the Peoria road and then walked with her along that road to a point where there is an opening in the fence on the south side of the Peoria road, the opening leading into a field and being, it appears, more than a thousand feet west or northwest of the Teed Corners intersection. At that point, said defendant in his first confession, he asked for and got the girl’s consent to an act of sexual intimacy which act, said he, thereupon took place in the field near the fence opening. We think it proper to say here that we cannot and do not credit that statement as to consent. The District Attorney in his opening speech to the jury at the trial, said that Lois Tryon was “ highly respected in .the community ”. Whatever else there may be of truth in the confession, it is beyond all reasonable belief that she submitted herself to this defendant. Further in his first confession to the sheriff, defendant told the sheriff that after the sexual act, he and Lois Tryon walked
north
in the field, in a direction away from her home, toward the railroad tracks, climbed the low embankment on which the tracks ran, then walked south on a path along the tracks, that defendant, walking behind the girl, suddenly struck her several times on the head with an iron bar which he had found nearby, felling her; that he did not know why he did it ‘ his head bothered him that he placed her body on the rails, then went down the embankment and hid and waited till the 7:05 train went by, whereupon he climbed back up the embankment, viewed the dead and dismembered body, then went home to bed. The oral confession just summarized was the first of eleven extrajudicial confessions by defendant, seven of them oral and four of them written, all made within a month and furnished by defendant, apparently, without reserve or fear and with little appearance of sorrow, to all who would listen. In the first of the written confessions, made to the sheriff a few hours after the first oral admissions, defendant repeated his incredible story as to the girl’s consent. Later, however, he must have thought better of this, since in all the confessions after the
first two, lie described in fullest detail a forcible rape. That was not tbe only change be made in bis story. In bis first few • confessions be stated explicitly that bis meeting with tbe girl was on tbe north-south road at a point well north of Teed Corners. Later be changed that materially by placing tbe meeting at a point well past tbe railroad tracks on tbe Peoria road, perhaps a quarter-mile from tbe place described in tbe earlier confessions. Tbe significance of that change is real. Defendant’s new fixation of tbe place of meeting was made after one of tbe investigators, an attorney, bad told defendant that defendant’s first locations of tbe place where be caught up with Lois Tryon were “ not right ”. Promptly and obligingly defendant changed tbe place. If be bad not so changed it, bis whole story would have collapsed since reliable witnesses bad appeared to say that they saw tbe girl alone, some time after she bad passed the' place first fixed by defendant as tbe exact place where be met Lois Tryon. We will not describe all the confessions in detail nor all tbe discrepancies therein. Tbe discrepancies are numerous and not inconsequential particularly in such a case as this where no person save himself, and no fact, describes defendant as tbe killer. In one of tbe confessions defendant referred to taking off tbe girl’s coat before assaulting her — be mentioned this in no other place. (Incidentally be described tbe girl’s coat as dark whereas it was light tan or brown in color.) In tbe first confession be did not say whether or not be had told anyone of bis crime (before be talked to tbe sheriff); in tbe second confession be said that be did not tell anyone and in tbe third be recounted that three or four days after tbe killing be confessed to bis mother (tbe mother on tbe stand denied this). In tbe fourth and subsequent confessions defendant said that after tbe forcible rape be and tbe girl “ walked nice ” together, a statement not only difficult of belief in itself but quite inconsistent with bis earlier descriptions of their movements after tbe (alleged) sexual act. In,two of tbe confessions, and in none of tbe others, be related that tbe girl threatened to tell her father — there is no mention of such a thing in tbe other confessions. In one of the confessions defendant told of tbe girl screaming after be bit her. There is nothing of that in tbe other confessions. Besides these internal differences (and
there are others in the confessions) there is at least one sharp conflict between the admissions and the uncontroverted fact. In all the confessions defendant’s story was that after the alleged intimacies he and the girl walked a considerable distance through the fields which were rough from the previous fall’s plowing and muddy from the spring rains. Yet, when the body was found, the girl’s shoes and rubbers were lying apart from the mutilated remains, uninjured and clean of mud, between the tracks. There is nothing in any of the confessions to explain that.
Having examined those confessions with an eye to trustworthiness, we pass to a consideration' of an entirely different question connected with the confessions. Defendant did not take the stand. Section 395 of the Code of Criminal Procedure lays down the rule that a defendant’s confession “ is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.” Obviously that statute requires proof outside the confession, of the
corpus delicti,
which
“
in case of murder or manslaughter, means the body of a crime, and • is divided into two component parts, the first of which is the death of the person, and the second is that the death is produced through criminal agency ”
(People
v.
Benham,
160 N. Y. 402, 425;
Ruloff
v.
People,
18 N. Y. 179, 192). Section 395 has been examined, explained and applied in a great many cases in this court. “ There must be evidence in addition to the confession to prove the
corpus delicti,
but when * * * the
corpus delicti
is proved by independent evidence, and the defendant has. voluntarily confessed his guilt, a case for the jury is made out, and a conviction based upon such testimony is warranted in law ”
(People
v.
Roach,
215 N. Y. 592, 600). In that case the court noted (p. 601) that
“
without regard to any of the confessions ” the fact that the deceased was.
murdered
was abundantly proven. “ The meaning of the Code is-that there must be some evidence of the
corpus delicti
besides the confession, the purpose being to require some proof of the death, and the violence which caused it, outside of and beyond the mere confession of the prisoner ”
(People
v.
Deacons,
109 N. Y. 374, 378).
some few jurisdictions are satisfied if tlie confession be bolstered by any proof which tends to
corroborate the truth
of the confession, that is not the law in New York. (7 Wigmore on Evidence, 3rd ed., § 2071.) Any expressions in
People
v.
Brasch
or
People
v.
Jaehne, supra,
which seem to suggest the less stringent rule, must be read in the light of the statements in those very opinions that the records in those cases contained very strong circumstantial evidence outside the confessions, not of the truthfulness of the confessions in some detail or other, but of the commission of the crimes charged in the indictments. For recent cases in this court strictly applying the rule of section 395 see
People
v.
Fitzgerald
(288 N. Y. 58) and
People
v.
Popoff
(289 N. Y. 344). In the
Popoff
case a conviction for arson was reversed (see opinion at page 347 as to the fifth count) on the ground that testimony of a witness that he drove defendant to the city where the crime was said to have been committed and there saw defendant going to, and later coming from, the direction, of the building that was to be burned, was not sufficient additional proof of the body of the crime. At the risk, of repetition, but because we believe that the requirements of section 395 were not met here, we restate the rule in the words of Judge Fikch at page 378 of the
Deacons
opinion “ There must be some other evidence of the existence of the criminal fact to which the confession relates.” In the present case, as we shall show in the next paragraph, there was not additional proof of the “ criminal fact ” but only a naked confession supplemented by a showing by outside proof that some of the statements in the confessions were true. Such a corroboration of the partial truthfulness of the confessions might have its place in weighing the whole evidence to see if it made out a case beyond a reasonable doubt. But it does not satisfy the statutory command of section 395. In the
Deacons
case, where mention is made (at p. 382) of the separate proof showing the accuracy of the descriptions in the confessions of the interior of a certain house, that separate proof is
not
treated as additional proof of the
corpus delicti-,
the additional and entirely different proof of the
corpus delicti
is described and passed upon elsewhere in the
Deacons
opinion (p. 378).
In his brief on this appeal the District Attorney lists ten different items of evidence ontside the confessions each of which
“
corroborates ” some statement or other in the confession, and he argues that this corroboration establishes that defendant is the killer. Such corroboration there may be, and it may make it seem “ possible and perhaps probable ”
(People
v.
Gordon,
194 App. Div. 665, 667) that defendant is in truth guilty, yet corroboration of the truthfulness of a confession is no answer at all to the demand of section 395 for additional proof of the
corpus delicti.
The corroborative evidence listed by the prosecutor at this point in his argument, is as follows: defendant’s brother confirmed defendant’s confessional statement that defendant, while riding with his brothers on the truck, saw Lois Tryon walking on the highway; the girl’s mother confirmed defendant’s statement that the girl wore short stockings, a bandanna or kerchief on her head and underwear of a certain kind and color; the sheriff’s testimony showed that after defendant in his first confession had described the hole in the fence on the Peoria road, defendant showed the sheriff the very hole in the exact place-; defendant’s statements in the confessions as to the time the train passed, as to its headlights being lighted, as to its being on the south-bound tracks and as to the girl’s body being mangled, were all corroborated by trial witnesses; the prosecutor says that the statement in one confession that the girl threw away a paper candy wrapper is borne out by proof that she had bought a candy bar at the crossroads store in Wadsworth and that a partly eaten bar was found in her pocket after her death; finally, we are told, defendant’s description of the train carrying the body some distance beyond a trestle is confirmed by the testimony of witnesses as to where the body was actually found. It is at once evident that nearly all those statements made by defendant in the confessions and said to be “corroborated” by other witnesses are as to matters which were of common knowledge in the vicinity or as to details which defendant might have observed when he visited the scene on the morning
after
the death. Indeed, the only item to which that explanation would not apply would be the description of the girl’s underclothing. Nothing in the record gives us any clue as to how defendant found that out
unless he was the killer. But that one mysterious and unexplained piece of special knowledge on his part, significant though it may he and important as it surely would he on the question of the
weight
to be given the confession, is not proof of a homicidal killing, and neither is any other of the listed items of “ corroboration ”, or all of them together.
It was, we assume, to those alleged corroborations of the veracity of the confessions that the Trial Justice referred when he told the jury in the charge
that16
in addition to these confessions the people have introduced, as I have said, both direct and circumstantial evidence tending to corroborate the statements of the defendant as contained in the confessions.” The only
“
direct ” evidence in the case (aside from the confessions) is direct evidence that the girl died of injuries. In that sense the phrase direct evidence ” may have been accurately used in the above quoted excerpt. But there certainly was no
“
direct ” evidence (we hold there was no evidence at all) outside the confessions that the crime charged had been committed. Yet on that point the language of the charge was: ‘
‘
Furthermore, you may not convict this defendant solely upon these confessions or any statements or admissions made in them. There must be proof in addition to such statements or confessions that the crime charged has been committed.
The people have produced evidence in addition to these alleged confessions some of which is direct and some circumstantial
” (emphasis supplied). That was a fiat statement to the jury that the People had complied with section 395, and there is nothing else in the charge to offset it. Furthermore, the court, beyond informing the jury that there was, outside the confessions, both circumstantial and direct evidence of the commission of the crime, nowhere listed, described or identified that evidence. The effect of all this was to eliminate from the case altogether, any question either of fact or law as to compliance with section 395.
Since the jury found against defendant on both issues, we do not discuss the alleged insanity of defendant or the attempt to prove an alibi.
The judgment of conviction should be reversed and a new trial ordered,