Davies, C. J.—The
prisoner was tried • on the civil side of the supreme court, at a circuit held in the county of Broome, in March 1867, and convicted of the crime of arson, and the general term denied a new trial, and the defendant was sentenced to the state prison. He now brings a writ of error to this court.
It is claimed, that the court, upon the trial, erred, in allowing the people to prove the confessions made by the prisoner to the witness, Martin, who, at the time, was a policeman. It is also urged, that the court erred in permitting the same witness to testify to another conversation .with’ the prisoner, in which conversation, the prisoner requested the witness to go and request the [347]*347prisoner’s father to visit him at the jail. It is also claimed, that the court erred in permitting the witness to testify as to what occurred when the father and the counsel of the prisoner were present; and it is also claimed, that the court erred in permitting the people to give evidence of a distinct and different felony committed by the prisoner, other than that charged in the indictment, and for which he was upon trial.
The witness did not have the prisoner in his charge, but went into the room occupied by him in the jail. He testified, that, as he *went into the room, he made the remark that he (the prisoner) was in a bad fix, and had got caught at last, or something like that; and that the witness then asked him to tel i who the others were, and in the course of the conversation with the prisoner, he asked the witness, if he had got Delany; that he told him, no. The prisoner then asked him, if he had got Delany and David Gray; and the witness asked the prisoner, if they knew anything about it, and he said, they did. The witness then asked the prisoner, what was the first fire he was interested in. He said, the first fire that he had anything to do with was his father’s barn, and that the next was Pugsby’s barn, near by; and he said, that he and David Gray set that on fire. The witness testified, that he made no promise to the prisoner, nor held out to him any induce-
ments whatever to make the confession.
The confessions of the prisoner were wholly voluntary, and made uninfluenced by any threat, menace, promise or other influence. It is no ground of objection, that they were made to a policeman. He had nof arrested the prisoner, and did not have him in his cus tody, at the time of this conversation.
Selden, J., in the case of People v. McMahon (15 N. Y. 384), very clearly states the principle which should govern in the admission of the confessions of persons charged with crime; he says: “The first distinction [348]*348which the law makes is, between a statement or declaration made before, and one made after, the accused was conscious of being charged with or suspected of the crime. If before, it is. admissible in all cases, whether made under oath, or without oath, upon a judicial proceeding, or otherwise, but if made after-wards, the law becomes at once cautious and hesitating. The inquiry then is, was it voluntary ? For, unless entirely voluntary, it is held not to be admissible.” He then proceeds to define what is meant by the term voluntary ; he says: “The word is evidently not, in all cases, used in contradistinction to compulsory, because a confession obtained by either threats or promises from any one having authority over the accused, or concerned in the administration of justice, *is uniformly held to be inadmissible. However slight the threat, or small the inducement thus held out, the statement will be excluded, as not voluntary. It is plain, therefore, that, in such cases, at least, ‘ voluntary’ is meant proceeding from the spontaneous suggestions of the party’s own mind, free from 'the influence of any extraneous disturbing cause.” And the learned judge states the reason of this exclusion to be, that where the law rejects a disclosure, made under oath, by a person charged with crime, it does so, not because any right or privilege of .the person has been violated, but because it is deemed unsafe to rely upon it as evidence of guilt. And this is strongly to be inferred from that class of cases, in which it has been held, that although a confession has been obtained by stratagem, by fraud, by violation of confidence, or even of an oath, still, if reliable, the law will avail itself of it. And he cites in support of this principle, Barley’s Case (cited in Phillips on Ev. 427, as having been decided in Easter term, 1818, mentioned also by Roscoe & Starkie, who say, the conviction was after-wards approved of by the judges), where the prisoner [349]*349was told, untruly, and as an artifice, when in jail, that his accomplices were in custody. Upon hearing this, which was said to induce a confession, he confessed. The confession was admitted in evidence.
In Rex v. Darrington (2 Car. & Payne 148), the prisoner, while in jail, having written a letter to his father, asked the turnkey to put it into the post, which he promised to do; but, instead of this, the turnkey delivered it to the magistrate. The letter was offered in evidence and objected to, but admitted. So, in Rex v. Shaw (6 Car. & Payne 372), where the person to whom the confession was made had taken an oath that he would not reveal it, this was held to be no objection to the evidence.
A confession is admissible, although it is elicited by questions put to the prisoner, by a magistrate, constable or other person. The leading authority on this point is Wilde’s Case (1 Moo. C. C. 452). The person having the prisoner (a boy about fourteen) in charge, told him to kneel down and *tell the truth in the presence of the Almighty. He did so, and confessed to pushing the children, with whose murder he was charged, into the pit. At a meeting of all the judges, in .1835, four only absent, they held, that the confession was strictly admissible.2 In Thornton’s Case (1 Moo. O. O. 27, Trinity term, 1824), which came before the judge, a confession was held admissible, made by a boy, only fourteen years old, to a chief officer of police, by whose direction he had been apprehended, without a warrant, and obtained in answer to questions put to him by the officer, and at a time when the boy had been without food for nearly an entire day. Seven of the judges held the confession' rightly received, for the reason, that no threat or promise had been used; three judges were of a contrary opinion. In Gibney’s Case (Jebb’s O. O. 15, before the twelve judges of Ireland), [350]*350decided in 1824, a confession was unanimously held admissible, which was elicited by questions put to the prisoner by two constables, in whose custody the prisoner then was, on his way to jail. One asked him: “Did you kill the child?” The other: “Were you not a terrible- man to do such a thing?” Both these questions were asked, before the confession was made. The constables told him several times, before he confessed, what a terrible offence he had committed, that it was a terrible thing for a man to murder his own child. (For other cases of a similar character, see Joy on Confession, p. 34, et passim, Law Library, vol. 40.)
So also, a confession is admissible, although it is elicited in answer to a question which assumes the prisoner’s guilt, or is obtained by artifice or deception. In Thornton’s Case (1 Moo. C. O.
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Davies, C. J.—The
prisoner was tried • on the civil side of the supreme court, at a circuit held in the county of Broome, in March 1867, and convicted of the crime of arson, and the general term denied a new trial, and the defendant was sentenced to the state prison. He now brings a writ of error to this court.
It is claimed, that the court, upon the trial, erred, in allowing the people to prove the confessions made by the prisoner to the witness, Martin, who, at the time, was a policeman. It is also urged, that the court erred in permitting the same witness to testify to another conversation .with’ the prisoner, in which conversation, the prisoner requested the witness to go and request the [347]*347prisoner’s father to visit him at the jail. It is also claimed, that the court erred in permitting the witness to testify as to what occurred when the father and the counsel of the prisoner were present; and it is also claimed, that the court erred in permitting the people to give evidence of a distinct and different felony committed by the prisoner, other than that charged in the indictment, and for which he was upon trial.
The witness did not have the prisoner in his charge, but went into the room occupied by him in the jail. He testified, that, as he *went into the room, he made the remark that he (the prisoner) was in a bad fix, and had got caught at last, or something like that; and that the witness then asked him to tel i who the others were, and in the course of the conversation with the prisoner, he asked the witness, if he had got Delany; that he told him, no. The prisoner then asked him, if he had got Delany and David Gray; and the witness asked the prisoner, if they knew anything about it, and he said, they did. The witness then asked the prisoner, what was the first fire he was interested in. He said, the first fire that he had anything to do with was his father’s barn, and that the next was Pugsby’s barn, near by; and he said, that he and David Gray set that on fire. The witness testified, that he made no promise to the prisoner, nor held out to him any induce-
ments whatever to make the confession.
The confessions of the prisoner were wholly voluntary, and made uninfluenced by any threat, menace, promise or other influence. It is no ground of objection, that they were made to a policeman. He had nof arrested the prisoner, and did not have him in his cus tody, at the time of this conversation.
Selden, J., in the case of People v. McMahon (15 N. Y. 384), very clearly states the principle which should govern in the admission of the confessions of persons charged with crime; he says: “The first distinction [348]*348which the law makes is, between a statement or declaration made before, and one made after, the accused was conscious of being charged with or suspected of the crime. If before, it is. admissible in all cases, whether made under oath, or without oath, upon a judicial proceeding, or otherwise, but if made after-wards, the law becomes at once cautious and hesitating. The inquiry then is, was it voluntary ? For, unless entirely voluntary, it is held not to be admissible.” He then proceeds to define what is meant by the term voluntary ; he says: “The word is evidently not, in all cases, used in contradistinction to compulsory, because a confession obtained by either threats or promises from any one having authority over the accused, or concerned in the administration of justice, *is uniformly held to be inadmissible. However slight the threat, or small the inducement thus held out, the statement will be excluded, as not voluntary. It is plain, therefore, that, in such cases, at least, ‘ voluntary’ is meant proceeding from the spontaneous suggestions of the party’s own mind, free from 'the influence of any extraneous disturbing cause.” And the learned judge states the reason of this exclusion to be, that where the law rejects a disclosure, made under oath, by a person charged with crime, it does so, not because any right or privilege of .the person has been violated, but because it is deemed unsafe to rely upon it as evidence of guilt. And this is strongly to be inferred from that class of cases, in which it has been held, that although a confession has been obtained by stratagem, by fraud, by violation of confidence, or even of an oath, still, if reliable, the law will avail itself of it. And he cites in support of this principle, Barley’s Case (cited in Phillips on Ev. 427, as having been decided in Easter term, 1818, mentioned also by Roscoe & Starkie, who say, the conviction was after-wards approved of by the judges), where the prisoner [349]*349was told, untruly, and as an artifice, when in jail, that his accomplices were in custody. Upon hearing this, which was said to induce a confession, he confessed. The confession was admitted in evidence.
In Rex v. Darrington (2 Car. & Payne 148), the prisoner, while in jail, having written a letter to his father, asked the turnkey to put it into the post, which he promised to do; but, instead of this, the turnkey delivered it to the magistrate. The letter was offered in evidence and objected to, but admitted. So, in Rex v. Shaw (6 Car. & Payne 372), where the person to whom the confession was made had taken an oath that he would not reveal it, this was held to be no objection to the evidence.
A confession is admissible, although it is elicited by questions put to the prisoner, by a magistrate, constable or other person. The leading authority on this point is Wilde’s Case (1 Moo. C. C. 452). The person having the prisoner (a boy about fourteen) in charge, told him to kneel down and *tell the truth in the presence of the Almighty. He did so, and confessed to pushing the children, with whose murder he was charged, into the pit. At a meeting of all the judges, in .1835, four only absent, they held, that the confession was strictly admissible.2 In Thornton’s Case (1 Moo. O. O. 27, Trinity term, 1824), which came before the judge, a confession was held admissible, made by a boy, only fourteen years old, to a chief officer of police, by whose direction he had been apprehended, without a warrant, and obtained in answer to questions put to him by the officer, and at a time when the boy had been without food for nearly an entire day. Seven of the judges held the confession' rightly received, for the reason, that no threat or promise had been used; three judges were of a contrary opinion. In Gibney’s Case (Jebb’s O. O. 15, before the twelve judges of Ireland), [350]*350decided in 1824, a confession was unanimously held admissible, which was elicited by questions put to the prisoner by two constables, in whose custody the prisoner then was, on his way to jail. One asked him: “Did you kill the child?” The other: “Were you not a terrible- man to do such a thing?” Both these questions were asked, before the confession was made. The constables told him several times, before he confessed, what a terrible offence he had committed, that it was a terrible thing for a man to murder his own child. (For other cases of a similar character, see Joy on Confession, p. 34, et passim, Law Library, vol. 40.)
So also, a confession is admissible, although it is elicited in answer to a question which assumes the prisoner’s guilt, or is obtained by artifice or deception. In Thornton’s Case (1 Moo. C. O. 28), a chief officer of police, by whose directions the prisoner had been apprehended, said to the prisoner in custody, that, “from the falsehoods he had told, and the prevarications he had made, there was no doubt but that he set the premises on fireand, after questioning him, whether any person had been concerned with him, added, “ he would not have told so many falsehoods, if he had not been concerned in it;” and again asked, “ whether any person had induced him to do it.” The *prisoner then made a confession. Seven out of the ten judges held that the confession was rightly received. Lord Denman, C. J., in Arnold’s Case (8 Car. & Payne 622), says, that the true test of the admissibility or inadmissibility of a confession is, whether any inducement was held out to the prisoner to confess himself, untruly, guilty.3
Applying these principles to the confessions made by this prisoner, we see that none of them were overlooked [351]*351or misapplied in the admission of them. The utmost that can be said of any remark made by the officers was, that it assumed the prisoner’s guilt. This, we have seen, furnishes no ground for the rejection of the confession. There being no inducement, promise, threat or menace used to obtain the confession, or influence its being made, it is very clear, upon principle and authority, that it was properly admitted.
We do not see that any rule of evidence was violated in admitting the answer of the witness, that Becker, the counsel of the prisoner, was present in the jail with him, at the same time the witness and the father of the prisoner were present. I do not understand the witness as detailing anything the prisoner said to his counsel, and he must certainly have been asked that, or attempted to give that, before the principle could be invoked, that such statement was a privileged, communication. Such privilege has no application to anything that was given in evidence or offered to be given in evidence upon this trial. Besides, any statement made by the prisoner to Becker, his counsel, in the presence and hearing of the prisoner’s father and of the witness, could not partake of the character of a privileged communication.
Neither is there any foundation for the objection now urged, that the judge upon the trial admitted evidence of a distinct felony, not charged in the indictment, to wit, that the prisoner burned his father’s barn. When the witness was asked about a further conversation with the prisoner, he testified: “I then asked him, what was the first fire he was interested in.” This was objected to, received and excepted to.- The witness answered: “He said, the first fire was his father’s barn, that he had anything to do with, and that he *and Jerome Dean”—here the witness was stopped, and did not further answer the question. When the witness was again asked directly, what the [352]*352prisoner said about he and Dean setting the fire, it was objected to, on the ground that the question related to another offence, and one for which he was not on trial. The court sustained the objection, and excluded the evidence. It is thus seen, that the moment the attention of the court was called to the ground of the objection, the evidence was excluded. And if the counsel for the prisoner had thought the former answer given in part was obnoxious to the same objection, it was his duty to have moved the court to strike out that testimony, and if the same had been refused, have taken an exception.
On a careful consideration of all the exceptions taken upon the trial, we think them untenable, and that the judgment of the supreme court must be affirmed.
Grover, J.
The question whether the motion for a new trial, on the ground of newly-discovered evidence, should have been granted, is not reviewable in this court. Although the indictment was removed into the supreme court and tried at the circuit, that does not enlarge the powers of this court. Questions of law only can be examined here. (Delaware & Hudson Canal Co., 29 N. Y. 635.) This motion was addressed to the sound discretion of the court, and its determination by the supreme court is final.
None of the exceptions to the charge w'ere well taken. It is entirely obvious, that the testimony of Wentz, that the defendant was at the store, from seven o’clock in the evening of the night of the fire, until the alarm was given, and the testimony of the witnesses, that he was passing the streets to the engine-house, where he arrived some little time before the alarm, and where they testify he was, at the time of the alarm, could not all have been true. It was in direct conflict, and one or the other must have been false, either through mistake or by intention. Although the judge applied the former.qualification to the testimony of the [353]*353first witness, and the latter to the testimony of the people’s witnesses, no question *of law was thereby presented. The remarks of the judge that the testimony of Young did not corroborate that of Wentz, as he swore he did not see the defendant after six o’clock on the evening in question, was a mere statement of the judge’s recollection of the testimony, and was not the subject of an exception. Besides, upon the defendant’s counsel insisting that Young had testified differently, the judge submitted the entire question to the jury. This would have cured the error, if one had been committed.
Upon the return of the jury to the bar, and announcing that they were unable to agree upon a verdict, it was discretionary with the court, either to discharge or send them back for further deliberation. It was proper for the court to inform them, that it could see no good reason why they should not agree.
The exception to the testimony of the witness Martin, presents the question whether the confessions of the defendant to him were voluntary. The defendant had been arrested, and was confined in jail, when the principal confession was alleged to have been made. The witness was a police-officer, and went into the room where the defendant was confined, and told him he was in a bad fix, and had got caught at last, and asked him, who the others were, and then the defendant made the confession. It is clear, that there was nothing like a promise, or any appeal to any hope of favor, presented to induce a confession. Nor was there anything like a threat made, in case the defendant did not confess—nothing calculated to interfere with the free, voluntary action of the defendant’s mind. This is all the law requires to render the confession admissible. The inquiry always is, was the confession made under circumstances making it reliable for truth? and if so, it is admissible, irrespective of the means by which it [354]*354was obtained. (People v. McMahon, 15 N. Y. 384, and cases cited.)
The remaining exception necessary to examine, as claimed by defendant’s counsel, presents the question whether, upon the trial of a party indicted for a particular crime, it is competent for the People to prove him guilty of another crime of the same or of a different kind. This question admits of no discussion. It is entirely certain, *tbat such proof is inadmissible Cases may occur where, in order to show the guilt of the party of the offence for which he is upon trial, it may be necessary to give evidence that may tend to show him guilty of another offence of like character. Upon a trial for forgery, to establish the scienter, it may be necessary to prove that the defendant had in his possession, or had uttered, other false and forged instruments. This is not to prove him guilty of another crime, but proof to show him guilty of that upon trial.
The real inquiry in this case is, whether the exception presents the question. The case states: “I then asked him, what was the first fire he was interested in.” Pie said: “The first fire was his father’s barn, that he had anything to do with, and, that he and Jerome Dean—” Objected to, on the ground, that it is giving evidence of another offence. No decision of the court appears to have been made. The prosecuting attorney at once proposed a different question. This fails to show that any evidence tending to show the party-guilty of another offence, was given, after the ground of the objection was stated. At another part of the examination of the same witness, he stated: “ lie told me how he and Dean set the fire.” The prosecuting counsel asked how was that. The defendant’s counsel objected, upon the ground above stated. The court decided, that it was not admissible as independent testimony, and if admissible at all, it was only so as [355]*355part of a conversation already related. That he thought the evidence was admissible, but, as a matter of prudence, he would reject it. Here, it is manifest, that the illegal evidence was not admitted, and did not go to the jury, although, at the moment, the learned judge appears to have entertained the erroneous idea, that it was competent for a party to prove, by the admissions of his adversary, facts which were not competent to prove by other evidence, where a part of the conversation, in which such admissions were made, is admissible, yet he did not act .upon such idea. The evidence was excluded, although the jury may possibly have been misled by this idea, and thus induced to give some importance to what had been before proven to have been *said by the defendant in relation to the ° fire at his father’s barn, yet it does not affirmatively appear that they were so misled. It therefore follows, that the exception is not available, upon the ground that the exceptions do not show that evidence was received-of another offence, against the objection of the defendant properly made. The judgment must be affirmed.
Judgment affirmed.