Desmond, J.
Early on the morning of October 11, 1945, two men attempted to hold up a Brooklyn tavern. One of the patrons resisted, and was shot and killed.
On December 7,1946, this defendant, then nineteen years old*, was released from confinement at Coxsackie reformatory for another offense, and was taken into custody at the reformatory by two New York City patrolmen. Handcuffed, he was driven to Brooklyn in the officers’ automobile. Questioned during the ride as to his alleged complicity in the barroom killing, he denied guilt or knowledge. In January, 1946, and again in March of that year, while in the reformatory, he had been interviewed at length by an assistant district attorney of Kings County as to this same holdup and homicide, but had asserted his complete innocence.
Defendant and the policeman arrived at a Brooklyn police station on the afternoon of December 7th, and later in the evening defendant was taken to a different police station. At about four o’clock on the morning of December 8th, after he had been questioned, off and on, for eight hours or more by various policemen, and after he had been in police custody for about thirty hours, defendant told the officers that he had been one of the two holdup men. An assistant county prosecutor and a stenographer were then sent for, and a formal confession taken down. That confession was the only evidence of guilt offered against defendant at the trial. On it defendant was found by the jury to be guilty of felony murder, and by the court sentenced to die, although the jury had in its verdict recommended life imprisonment. None of the several people who were in the bar at the time of the killing were called to testify, except the proprietor who could not describe the holdup man. No one identified defendant as one of the culprits, and no one saw him at or near the place that night. It is patent that, unless the confession was shown to have been, beyond reasonable doubt,, a voluntary and reliable one, the conviction must fall.
It is undisputed that during the long hours of questioning by the police, defendant asked for, and was refused, permission to notify his parents or to use the telephone. Defendant on the trial swore that he was brutually and continuously assaulted by the policemen until he could resist no more, and then made the admission of guilt. That admission, swore defendant, was
wholly untrue and forced from him by kicks and punches. The ; officers denied that they had mistreated defendant, the assistant : district attorney showed that defendant did not complain to him of any beatings, and it appeared that no such complaint was voiced by defendant at the preliminary hearing before the magistrate, or on his admission to the city prison. However, it plainly appears that defendant did somehow sustain substantial physical injuries while in close custody of public officials. A jail record establishes that on December 10, 1946, defendant was examined by a jail physician whose written report says that he found “ contusions of left, anterior lower chest wall and numerous small bruises of scalp.” Those wounds were such as could have been caused by blows. No effort was made by the prosecution to show (aside from the denials by the policeman of any violence) how or where these injuries were in fact inflicted, nor did the prosecution call as ,a witness the physician who made the entry in the jail- records. This court said in
People
v.
Barbato
(254 N. Y. 170,176): “ The District Attorney on this evidence was called on to account for the defendant’s condition.” A similar duty was on the People in this case, and no sufficient accounting is in the present record.
Despite section 165 of the Code of Criminal Procedure, defendant was not arraigned in court until the morning of December 9th, forty-eight hours after the police officers had taken him from Coxsackie.
It is not claimed that defendant was the robber who actually fired the shots. The killer was William Cronholm who, after a separate trial, had been convicted of the crime in June, 1946. Cronholm appeared as a defense witness on the trial of this defendant and swore that defendant had nothing to do with this crime. Cronholm, arrested several months after the killing, had confessed to the police that he was the killer. Then, pressed by the police to name his associate, he had named this defendant. On the trial Cronholm insisted that he had so inculpated this defendant because he (Cronholm) did not know the full name of the man who was with him in the holdup, and because he was afraid to tell that to the police, lest they, disbelieving him, should continue to beat him. Cronholm told this jury that he had expected defendant would be able to establish an alibi, since, he said, defendant was not implicated in the holdup at all.
Although defendant, when first suspected of this crime, had denied even seeing Cronholm that night, he testified on the trial that he had met Cronholm and a woman friend of the latter at another barroom some hours before the holdup. Defendant, as well as Cronholm and the latter’s woman friend, said that Cronholm and the woman left that other tavern hours before this crime, and that defendant did not leave with them. A bartender and another woman testified that defendant stayed in that other barroom until closing time (four o’clock in the morning) and then walked home with the woman witness.
Admissions, freely and voluntarily made by a person charged with a crime, are not only acceptable, but convincing evidence of his guilt. But an involuntary “ confession ”, is, by its very nature, evidence of nothing. Common sense and simple justice have put into our Code of Criminal Procedure, section 395, which forbids the reception of a confession “ made under the influence of fear produced by threats ”. Application of that statute is frequently difficult. Many a criminal record which comes to us contains a confession, and conflicting testimony as to whether or not the confession was extorted from the defendant. If there is a fair question of fact as to this, the jury’s verdict is not interfered with. But a confession is not proof at all unless it be a free act. This court must see to it that a reasonable doubt on this score is resolved in favor of a defendant, and, in capital cases, we are commanded also to deal with the weight of evidence
(People
v.
Crum, 272 N.
Y. 348, 350). In most cases where police brutality in obtaining a confession is charged and denied, there are no separate criteria for settling the dispute. Then, though sometimes with reluctance and suspicion, we are bound to affirm (see Pound, J., in
People
v.
Barbato, supra,
254 N. Y. at p. 173). But in the case before us we have, unexplained by the People, wounds obviously suffered while in custody and reasonably ascribable to the alleged assaults. Add that undisputed fact to these other undisputed facts: that defendant stoutly avowed his innocence when under the protection of reformatory officials, that he was held incommunicado by the police for twenty hours before he said he was guilty, that his arraignment was illegally delayed, that he was nineteen years old, that he was forbidden to eominunieate
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Desmond, J.
Early on the morning of October 11, 1945, two men attempted to hold up a Brooklyn tavern. One of the patrons resisted, and was shot and killed.
On December 7,1946, this defendant, then nineteen years old*, was released from confinement at Coxsackie reformatory for another offense, and was taken into custody at the reformatory by two New York City patrolmen. Handcuffed, he was driven to Brooklyn in the officers’ automobile. Questioned during the ride as to his alleged complicity in the barroom killing, he denied guilt or knowledge. In January, 1946, and again in March of that year, while in the reformatory, he had been interviewed at length by an assistant district attorney of Kings County as to this same holdup and homicide, but had asserted his complete innocence.
Defendant and the policeman arrived at a Brooklyn police station on the afternoon of December 7th, and later in the evening defendant was taken to a different police station. At about four o’clock on the morning of December 8th, after he had been questioned, off and on, for eight hours or more by various policemen, and after he had been in police custody for about thirty hours, defendant told the officers that he had been one of the two holdup men. An assistant county prosecutor and a stenographer were then sent for, and a formal confession taken down. That confession was the only evidence of guilt offered against defendant at the trial. On it defendant was found by the jury to be guilty of felony murder, and by the court sentenced to die, although the jury had in its verdict recommended life imprisonment. None of the several people who were in the bar at the time of the killing were called to testify, except the proprietor who could not describe the holdup man. No one identified defendant as one of the culprits, and no one saw him at or near the place that night. It is patent that, unless the confession was shown to have been, beyond reasonable doubt,, a voluntary and reliable one, the conviction must fall.
It is undisputed that during the long hours of questioning by the police, defendant asked for, and was refused, permission to notify his parents or to use the telephone. Defendant on the trial swore that he was brutually and continuously assaulted by the policemen until he could resist no more, and then made the admission of guilt. That admission, swore defendant, was
wholly untrue and forced from him by kicks and punches. The ; officers denied that they had mistreated defendant, the assistant : district attorney showed that defendant did not complain to him of any beatings, and it appeared that no such complaint was voiced by defendant at the preliminary hearing before the magistrate, or on his admission to the city prison. However, it plainly appears that defendant did somehow sustain substantial physical injuries while in close custody of public officials. A jail record establishes that on December 10, 1946, defendant was examined by a jail physician whose written report says that he found “ contusions of left, anterior lower chest wall and numerous small bruises of scalp.” Those wounds were such as could have been caused by blows. No effort was made by the prosecution to show (aside from the denials by the policeman of any violence) how or where these injuries were in fact inflicted, nor did the prosecution call as ,a witness the physician who made the entry in the jail- records. This court said in
People
v.
Barbato
(254 N. Y. 170,176): “ The District Attorney on this evidence was called on to account for the defendant’s condition.” A similar duty was on the People in this case, and no sufficient accounting is in the present record.
Despite section 165 of the Code of Criminal Procedure, defendant was not arraigned in court until the morning of December 9th, forty-eight hours after the police officers had taken him from Coxsackie.
It is not claimed that defendant was the robber who actually fired the shots. The killer was William Cronholm who, after a separate trial, had been convicted of the crime in June, 1946. Cronholm appeared as a defense witness on the trial of this defendant and swore that defendant had nothing to do with this crime. Cronholm, arrested several months after the killing, had confessed to the police that he was the killer. Then, pressed by the police to name his associate, he had named this defendant. On the trial Cronholm insisted that he had so inculpated this defendant because he (Cronholm) did not know the full name of the man who was with him in the holdup, and because he was afraid to tell that to the police, lest they, disbelieving him, should continue to beat him. Cronholm told this jury that he had expected defendant would be able to establish an alibi, since, he said, defendant was not implicated in the holdup at all.
Although defendant, when first suspected of this crime, had denied even seeing Cronholm that night, he testified on the trial that he had met Cronholm and a woman friend of the latter at another barroom some hours before the holdup. Defendant, as well as Cronholm and the latter’s woman friend, said that Cronholm and the woman left that other tavern hours before this crime, and that defendant did not leave with them. A bartender and another woman testified that defendant stayed in that other barroom until closing time (four o’clock in the morning) and then walked home with the woman witness.
Admissions, freely and voluntarily made by a person charged with a crime, are not only acceptable, but convincing evidence of his guilt. But an involuntary “ confession ”, is, by its very nature, evidence of nothing. Common sense and simple justice have put into our Code of Criminal Procedure, section 395, which forbids the reception of a confession “ made under the influence of fear produced by threats ”. Application of that statute is frequently difficult. Many a criminal record which comes to us contains a confession, and conflicting testimony as to whether or not the confession was extorted from the defendant. If there is a fair question of fact as to this, the jury’s verdict is not interfered with. But a confession is not proof at all unless it be a free act. This court must see to it that a reasonable doubt on this score is resolved in favor of a defendant, and, in capital cases, we are commanded also to deal with the weight of evidence
(People
v.
Crum, 272 N.
Y. 348, 350). In most cases where police brutality in obtaining a confession is charged and denied, there are no separate criteria for settling the dispute. Then, though sometimes with reluctance and suspicion, we are bound to affirm (see Pound, J., in
People
v.
Barbato, supra,
254 N. Y. at p. 173). But in the case before us we have, unexplained by the People, wounds obviously suffered while in custody and reasonably ascribable to the alleged assaults. Add that undisputed fact to these other undisputed facts: that defendant stoutly avowed his innocence when under the protection of reformatory officials, that he was held incommunicado by the police for twenty hours before he said he was guilty, that his arraignment was illegally delayed, that he was nineteen years old, that he was forbidden to eominunieate
with parents, friends or counsel, that there is, outside this confession, no scintilla of proof of his guilt, and that the killer took the stand to say that this man was not his confederate. On the whole case, we must come to the same conclusion as did this court in
People
v.
Barboto (supra,
254 N. Y. at p. 177): “ * * * on the weight of evidence the physical facts corroborate defendant’s statement that injuries were inflicted by the police officers to procure a confession.”
Explaining the rule of justice and decency which excludes involuntary confessions, this court said in an early case: “ The principle upon which this rule is based is obvious. It is, that we cannot safely judge of the relation between the motives and the declarations of the accused, when to the natural ágitation consequent upon being charged with crime is superadded the disturbance produced by hopes or fears artificially excited. It is because it is in its nature unreliable, and not on account of any impropriety in the manner of obtaining it, that the evidence is excluded ”
(People
v.
McMahon,
15 N. Y. 384, 386). The rule was .clearly stated in England as long ago as 1783, in
WarichshalVs
case (1 Leach [4th ed.] 263, 264), as follows: “ It is a mistaken notion, that the evidence of confessions and facts which have been obtained from prisoners by promises or threats, is to be rejected from a regard to public faith; no such rule ever prevailed. * * * Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.”
If we examine this record in the spirit of the settled rule, if we give any real effect to section 395 of the Code of Criminal Procedure, we cannot allow the use of this confession, on this record. Obviously, we cannot first use it in weighing this man’s guilt, then move on to an examination of its trustworthiness and admissibility (see
Bram
v.
United States,
168 U. S. 532, 541).
“ Whether true or false, confessions obtained in violation of section 395 of the Code of Criminal Procedure are not sufficient to sustain a conviction ”
(People
v.
Barbato, supra,
254 N. Y. at p. 174).
Our decision that the reliability of the confession, and consequently, the guilt of defendant, were not proven beyond a reasonable doubt, makes unnecessary any inquiry into the alleged violation of defendant’s rights under the Federal Constitution (see
Malinski
v.
State of New York,
324 U. S. 401, and
Haley
v.
State of Ohio,
332 U. S. 596).
The conclusions stated herein may seem logically to lead to a dismissal of the indictment as well as a reversal of the judgment. However, it is the usual practice of this court to order a new trial in such situations. The judgment of conviction should be reversed and a new trial ordered.