Miller, J.:
A few minutes after 10 o’clock on thé night of December 29th, 1913, the body of Carmello Canestrale was found on the bridge over the railroad tracks of the New York Central railroad at One Hundred and Forty-ninth street and Park avenue in the county of Bronx. A stab wound had been inflicted in his left chest penetrating into the heart and death resulted therefrom. A broken blade of a knife was found with the body and the next morning the other part of the knife with the handle was found on the railroad tracks underneath the bridge. The defendant kept a boarding house and the deceased had been one of her boarders. On the 4th of December, 1913, the defendant and the deceased, accompanied by three of their friends, went to the marriage license bureau at the city hall in the borough of Manhattan and obtained a license to marry. Thereafter they lived
together as husband and wife until the 27th day of December, 1913, when the deceased left the defendant and went to the home of one Salvatore Peragine. The defendant had made arrangements for the wedding to take place on December 28th, 1913, but the deceased did not appear. Gn the following day in response to a message from her he went to her house, but he refused to marry her on the ground that she did not have sufficient money and again went away. Without going more into detail it is sufficient to say that the People’s evidence strongly tended to prove that enraged by the deceased’s desertion and refusal to marry her, and in all probability aided and incited by said Peragine", a witness called by the People, the defendant lay in wait for the deceased at the bridge, and there inflicted the mortal wound. The only serious question in the case arises upon the admission in evidence of two confessions made by the defendant, one on her examination at the coroner’s inquest, and the other to the district attorney. Without either of those confessions the People’s case would be very weak, if indeed sufficient to sustain the conviction.
On the 9th day of January, 1914, the defendant, who was then in custody, charged with the homicide, was taken before the coroner, who was holding an inquest into the death of Canestrale. She was called as a witness, sworn and asked where she lived. She answered, “ 529 Morris Avenue.” The coroner then said to her: “ Mrs. Ferola, you are charged with homicide, in having caused the death of Carmello Canestrale. It is your privilege to testify or not, just as you see fit. Any statement that you make now can be used against you at this or any future proceeding. Knowing this, do you wish to testify? You are entitled to counsel, and you can refuse to testify until such time as you have counsel,” and she replied, “ I am willing to testify without a lawyer.” Thereupon she was examined fully as to her relations with the deceased, the homicide and the facts leading up to it, and frankly admitted that she committed it.
At the termination of the proceeding the coroner committed1 her to await the action of the grand jury.
The practice of calling the accused as a witness in- the very proceeding in which the charge is being investigated cannot be too severely condemned. The defendant was an Italian, unacquainted with our language. She was unattended by counsel and ignorant of her rights. It may be doubted whether as a. matter of fact any information or advice given her by the coroner could have entirely removed the effect upon her mind of calling her as a witness.' She was not informed that her refusal to testify could not be used against her; whereas, if the proceeding had been before a committing magistrate, it would have-been the latter’s duty to inform her that the mere waiver of a right to make a statement could not be used against her. ( Code of Criminal Procedure, section 196.) It may be admitted that chapter 7 of title 3 of the Code of Criminal Procedure does not in terms apply, and that many of its sections are inapplicable,, to a coroner’s inquest. The purpose, however, of the two proceedings is the same where, as in this case, the fact of the homicide is established. In a proceeding before a committing magistrate, it is the right of the accused to make a statement not under oath, but said section requires that before he is called upon to determine whether to exercise that right he must be-given certain information. That provision does not expressly apply to a case where the accused is called as a witness, for the very good reason that the statute does not contemplate such a violation of his constitutional rights. It is the calling of the accused as a witness, not merely the administering of the oath, which virtually compels him to be a witness against himself. There is a plain line of distinction between the cases on the subject in this state. On the one side are People v. Thayer (1 Parker’s Crim. Rep. 595) ; Hendrickson v. People (10 N. Y. 13) ; Teachout v. People (41 N. Y. 7) ; People v. McGloin (28 Hun, 150; 91 N. Y. 241) ; People v. Chapleau (121 N. Y. 266).
On the other side are People v. Singer (18 Abb. [N. C.]96); People v. McMahon (15 N. Y.
384)
; People v. Mondon (103 N. Y. 211; 4 N. Y. Crim. 552). In the former class statements of the accused were held admissible, but they were made either when he had come forward of his own volition and asked to be examined, or when he was examined merely as a witness, not standing in the position of the accused, or as in the McGloin case where the examination was not in a judicial proceeding at all. In the other class it was held that it was an invasion of the rights of the accused to call him as a witness in the proceeding in which the charge against him was being examined. The distinction between the two lines of cases was pointed out by Judge Werner in People v. Molineux (168 N. Y. 264, 331; 16 N. Y. Crim.). I repeat, the compulsory attendance of the accused as a witness, not simply the administering of an oath, violates his rights, and that, too, irrespective of the question whether the provisions of the statute applicable to proceedings before a committing magistrate apply to the case where the coroner before inquisition under section 773 of the Code of Criminal Procedure, or after inquisition under section 783, is examining the charge against the accused, and I may add, irrespective of whether the accused is called before a coroner, a committing magistrate, or a grand jury.
The question remains whether, although it was a violation of her constitutional rights to call her as a witness, her subsequent statements were voluntary and admissible under section 395 of the Code of Criminal Procedure. That they were not voluntary as a matter of fact might well be found. But whether, in view of what was said to her by the coroner and by her to the coroner and the interpreter, it was an error of law to admit her subsequent statement in evidence is a different question. There being a difference of view among us, we leave the question undecided, because a majority of us are of the opinion that, if error was committed, it was harmless. On the 27th of January,
1914, the defendant was taken from the Tombs to the office of the district attorney by the officers who had taken her before the coroner, and was again examined. She had not then had the advice of counsel. It appears, inferentially at least, that an oath was administered to her. Her examination began thus:
Free access — add to your briefcase to read the full text and ask questions with AI
Miller, J.:
A few minutes after 10 o’clock on thé night of December 29th, 1913, the body of Carmello Canestrale was found on the bridge over the railroad tracks of the New York Central railroad at One Hundred and Forty-ninth street and Park avenue in the county of Bronx. A stab wound had been inflicted in his left chest penetrating into the heart and death resulted therefrom. A broken blade of a knife was found with the body and the next morning the other part of the knife with the handle was found on the railroad tracks underneath the bridge. The defendant kept a boarding house and the deceased had been one of her boarders. On the 4th of December, 1913, the defendant and the deceased, accompanied by three of their friends, went to the marriage license bureau at the city hall in the borough of Manhattan and obtained a license to marry. Thereafter they lived
together as husband and wife until the 27th day of December, 1913, when the deceased left the defendant and went to the home of one Salvatore Peragine. The defendant had made arrangements for the wedding to take place on December 28th, 1913, but the deceased did not appear. Gn the following day in response to a message from her he went to her house, but he refused to marry her on the ground that she did not have sufficient money and again went away. Without going more into detail it is sufficient to say that the People’s evidence strongly tended to prove that enraged by the deceased’s desertion and refusal to marry her, and in all probability aided and incited by said Peragine", a witness called by the People, the defendant lay in wait for the deceased at the bridge, and there inflicted the mortal wound. The only serious question in the case arises upon the admission in evidence of two confessions made by the defendant, one on her examination at the coroner’s inquest, and the other to the district attorney. Without either of those confessions the People’s case would be very weak, if indeed sufficient to sustain the conviction.
On the 9th day of January, 1914, the defendant, who was then in custody, charged with the homicide, was taken before the coroner, who was holding an inquest into the death of Canestrale. She was called as a witness, sworn and asked where she lived. She answered, “ 529 Morris Avenue.” The coroner then said to her: “ Mrs. Ferola, you are charged with homicide, in having caused the death of Carmello Canestrale. It is your privilege to testify or not, just as you see fit. Any statement that you make now can be used against you at this or any future proceeding. Knowing this, do you wish to testify? You are entitled to counsel, and you can refuse to testify until such time as you have counsel,” and she replied, “ I am willing to testify without a lawyer.” Thereupon she was examined fully as to her relations with the deceased, the homicide and the facts leading up to it, and frankly admitted that she committed it.
At the termination of the proceeding the coroner committed1 her to await the action of the grand jury.
The practice of calling the accused as a witness in- the very proceeding in which the charge is being investigated cannot be too severely condemned. The defendant was an Italian, unacquainted with our language. She was unattended by counsel and ignorant of her rights. It may be doubted whether as a. matter of fact any information or advice given her by the coroner could have entirely removed the effect upon her mind of calling her as a witness.' She was not informed that her refusal to testify could not be used against her; whereas, if the proceeding had been before a committing magistrate, it would have-been the latter’s duty to inform her that the mere waiver of a right to make a statement could not be used against her. ( Code of Criminal Procedure, section 196.) It may be admitted that chapter 7 of title 3 of the Code of Criminal Procedure does not in terms apply, and that many of its sections are inapplicable,, to a coroner’s inquest. The purpose, however, of the two proceedings is the same where, as in this case, the fact of the homicide is established. In a proceeding before a committing magistrate, it is the right of the accused to make a statement not under oath, but said section requires that before he is called upon to determine whether to exercise that right he must be-given certain information. That provision does not expressly apply to a case where the accused is called as a witness, for the very good reason that the statute does not contemplate such a violation of his constitutional rights. It is the calling of the accused as a witness, not merely the administering of the oath, which virtually compels him to be a witness against himself. There is a plain line of distinction between the cases on the subject in this state. On the one side are People v. Thayer (1 Parker’s Crim. Rep. 595) ; Hendrickson v. People (10 N. Y. 13) ; Teachout v. People (41 N. Y. 7) ; People v. McGloin (28 Hun, 150; 91 N. Y. 241) ; People v. Chapleau (121 N. Y. 266).
On the other side are People v. Singer (18 Abb. [N. C.]96); People v. McMahon (15 N. Y.
384)
; People v. Mondon (103 N. Y. 211; 4 N. Y. Crim. 552). In the former class statements of the accused were held admissible, but they were made either when he had come forward of his own volition and asked to be examined, or when he was examined merely as a witness, not standing in the position of the accused, or as in the McGloin case where the examination was not in a judicial proceeding at all. In the other class it was held that it was an invasion of the rights of the accused to call him as a witness in the proceeding in which the charge against him was being examined. The distinction between the two lines of cases was pointed out by Judge Werner in People v. Molineux (168 N. Y. 264, 331; 16 N. Y. Crim.). I repeat, the compulsory attendance of the accused as a witness, not simply the administering of an oath, violates his rights, and that, too, irrespective of the question whether the provisions of the statute applicable to proceedings before a committing magistrate apply to the case where the coroner before inquisition under section 773 of the Code of Criminal Procedure, or after inquisition under section 783, is examining the charge against the accused, and I may add, irrespective of whether the accused is called before a coroner, a committing magistrate, or a grand jury.
The question remains whether, although it was a violation of her constitutional rights to call her as a witness, her subsequent statements were voluntary and admissible under section 395 of the Code of Criminal Procedure. That they were not voluntary as a matter of fact might well be found. But whether, in view of what was said to her by the coroner and by her to the coroner and the interpreter, it was an error of law to admit her subsequent statement in evidence is a different question. There being a difference of view among us, we leave the question undecided, because a majority of us are of the opinion that, if error was committed, it was harmless. On the 27th of January,
1914, the defendant was taken from the Tombs to the office of the district attorney by the officers who had taken her before the coroner, and was again examined. She had not then had the advice of counsel. It appears, inferentially at least, that an oath was administered to her. Her examination began thus:
“ Assistant District Attorney: Any answers that you may make to the questions put to you here may be used against you, and you need not testify unless you want to. Do you wish to testify in this proceeding? A. Yes.”
The language quoted and the manner in which the examination was taken may have led the defendant to think that she was being examined in a legal proceeding. However, the proceeding, like that involved in People v. McGloin
(supra),
was extra-judicial. The defendant’s attendance as a witness before the coroner was compulsory as a matter of law, her attendance and examination at the district attorney’s office may have been compulsory as a matter of fact, but that question was for the jury, whose finding that her statement was voluntary is not against the weight of the evidence.
Although there were immaterial variances, no more than naturally to be expected, the two statements were substantially alike in all essential respects, with possibly this difference; in the statement before the coroner the defendant identified the broken parts of the knife. In her statement before the district attorney she was not asked to do so, but she said that she used a knife which she had had about the house, and that after inflicting the wound she threw the broken part of the knife, which remained in her hand, away. That piece of evidence, strongly corroborated as it was by the finding of that part of the knife the next morning after the homicide, was even more important than her identification. The statement before the coroner, therefore, did not materially strengthen or add to the People’s case. Substantially the same evidence was already in the case, when that statement was admitted, and a typical case is thus
presented of an error not affecting the substantial rights of the defendant, which we are required to disregard on appeal. (Code of Criminal Procedure, section 542.)
The judge in charging the jury quoted from the statement before the coroner, but he could as well have quoted from the other statement. The only possible view in which it could be said that the defendant was prejudiced by having both statements admitted in evidence was the added force to be given to a repetition of the confession, and we are not prepared to say but that in a doubtful case that consideration might be entitled to weight. The statement, however, made before the district attorney so fitted in with the surrounding facts and circumstances and was so strongly corroborated by undisputed evidence as to make it practically certain that the jury’s verdict was not affected in the slightest by the fact that there were two confessions instead of one.
The court neglected to inform the jury, as it should have done, that, if they found that Peragine was an accomplice, they could not convict upon his evidence unless it was corroborated by other evidence “ tending to connect the defendant with the commission of the crime.” (Code of Criminal Procedure, section 399.) There was a request to charge upon the subject, but it was not technically accurate, and it was coupled with objectionable matter, so that the refusal to charge it was not technically error. Nevertheless we should hesitate to affirm a conviction in a capital case in which the jury were not properly instructed as to the necessity of corroboration of an accomplice if the verdict depended upon such evidence. Manifestly in this case the verdict was based on the confession of the defendant as corroborated by the other evidence, and the statute on that subject (section 395 of the Code of Criminal Procedure) was read to the jury. Counsel evidently did not deem the importance of an instruction as to the necessity of corroboration of Peragine sufficient to present a clear-cut request to charge on the
subject, but coupled the request with other matter which he was not entitled to, but which he was apparently more desirous of getting before the jury. It is a practical certainty that the jury did not convict the defendant on the testimony of Peragine.
We have examined the other points raised, but find nothing requiring further discussion.
The judgment should be affirmed.