By the Court, Potter, J.
An objection is taken by the counsel for the people to the hearing of this case, on the ground, first, that the writ of error is not in the proper form. That it should require the return of the judgment below, or a return of the proceedings on the indictment, if judgment be thereupon given. And, second, that there is no return of any record of judgment, in the case. He [361] claims, for this reason, that the writ should be quashed or set aside, and the conviction affirmed.
These objections are technical, and are without force. There is no prescribed form of a writ of error in such case by statute, and the books of forms have furnished no unvarying precedent. A form precisely like that used in this case was adopted to remove a case from the Supreme Court to the Court of Appeals, in The People v. Thoms, reported in 3 Parker’s Crim. Rep. 256, and is cited as a proper form in Waterman’s notes to Archbold’s Criminal Practice, (vol. 1, p. 719,) to which no objection was taken. And also in a new work on criminal law and forms, by Oolby, (at p. 409,) to remove a case from a court of sessions to the Supreme Court, the same form was adopted as in this. Besides, the writ, in terms, does command that the record and proceedings (which include the judgment, if any be given,) be certified to this court, and the answer of the court of sessions does set forth the indictment, the trial, the exceptions, and the findings of the j ury and the judgment of the court thereon. All that is complained of is fully before the court fqr review.
The plaintiff in error raises the objection that his declarations, or confession of guilt, admitted in evidence, though objected to, were not legally admissible, inasmuch as they were not voluntary. This I regard as the important point in the case. The complainant, Dudley Welch, residing in the town of Saratoga, lost a horse from his stable on the night of the 26th September, 1868; the stable door was opened by force, and the horse taken without the consent of the owner. About three months afterwards he found the horse at North Chatham, Columbia county, about thirty miles from Troy. The plaintiff in error was arrested on suspicion of being the person who took the horse, and the complainant was his uncle. On being arrested, the complainant, in the presence of the officer who held him in custody, attempted to learn from the plaintiff in error [362] where the horse was, and to get admissions from the prisoner as to his taking the horse. The prisoner at first denied all knowledge of the horse, and denied having taken him. The complainant then detailed to him certain circumstances which could be proved, tending to show his guilt. The complainant then told him, (prisoner,) in presence of the officer in whose custody he was, “ that the lest he (prisoner) could do, was to own it up ; that this would le letter for him.” This statement was also repeated to him by the officer who held him in charge. After these statements, made by the complainant and officer, the prisoner began to give information of his manner of taking the horse, and the place to which he took him; and then directed the complainant what roads to take, and the place where he would find the horse. The complainant followed these directions, and found his horse. On the trial, while the complainant was testifying to the conversation at the time of the arrest, the prisoner’s counsel asked the court to be permitted to ask the witness if, at the time of and prior to this conversation, the prisoner was not under arrest Charged with this crime, and if he did not say in substance to prisoner, “ that he had better own up, for it would be better for him,” which request was denied, and the prisoner’s counsel duly excepted. The same objection was made to the testimony of McNamara, the officer who arrested the prisoner, while he was testifying; and a like ruling by the court. This officer'then testified that before the prisoner made any confessions, and while he was under arrest, he said to him in substance, that it would be better for him to confess the matter, and told him the same after-wards, before he was taken before the magistrate. The prisoner’s counsel then moved the court to strike out all the testimony and confessions made by the prisoner, upon the ground that they were not voluntary, and were im- * proper, which the court denied, and the prisoner’s counsel excepted. Although the officer afterwards somewhat [363] varied the language he used to the prisoner, yet he then states it as the substance of what he said; “ if he had taken the horse it would be better for him to own up,” and yet, he also adds, that he again told him, that he “ thought the complainant would not be so hard on him if he could get his horse back.” This fully presents the point, as to whether this confession was voluntary. The rule seems to be well settled. ¡Nothing remains but to make the application.
If the declaration or admission is made before the accused is conscious of being charged with, or suspected of crime, they are admissible under all circumstances, however made or obtained; under oath, or without, upon a judicial proceeding, or otherwise. • But if made afterwards, the law at once becomes cautious and hesitating. The true inquiry then is, was it voluntary ? For unless it is entirely voluntary, it is held to be not admissible. This is the rule as collected from all the authorities, and as laid down in the Court of Appeals, by Selden, J., in the case of The People v. McMahon, (15 N. Y. Rep. 384.) This opinion, so tersely and clearly expressed, is so exactly to the point, that I have extracted from it. He says: “In order to apply this rule, it is necessary to know what is meant by the term voluntary. 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, by voluntary, is meant proceeding from the spontaneous suggestion of the party’s own mind, free from the influence of any extraneous disturbing cause. This was repeated in The People v. Wentz, (37 N. Y. Rep. 304.) After citing various cases 'supporting these propositions, [364] the learned judge says: “Ho dictum to the contrary can be found.”
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By the Court, Potter, J.
An objection is taken by the counsel for the people to the hearing of this case, on the ground, first, that the writ of error is not in the proper form. That it should require the return of the judgment below, or a return of the proceedings on the indictment, if judgment be thereupon given. And, second, that there is no return of any record of judgment, in the case. He [361] claims, for this reason, that the writ should be quashed or set aside, and the conviction affirmed.
These objections are technical, and are without force. There is no prescribed form of a writ of error in such case by statute, and the books of forms have furnished no unvarying precedent. A form precisely like that used in this case was adopted to remove a case from the Supreme Court to the Court of Appeals, in The People v. Thoms, reported in 3 Parker’s Crim. Rep. 256, and is cited as a proper form in Waterman’s notes to Archbold’s Criminal Practice, (vol. 1, p. 719,) to which no objection was taken. And also in a new work on criminal law and forms, by Oolby, (at p. 409,) to remove a case from a court of sessions to the Supreme Court, the same form was adopted as in this. Besides, the writ, in terms, does command that the record and proceedings (which include the judgment, if any be given,) be certified to this court, and the answer of the court of sessions does set forth the indictment, the trial, the exceptions, and the findings of the j ury and the judgment of the court thereon. All that is complained of is fully before the court fqr review.
The plaintiff in error raises the objection that his declarations, or confession of guilt, admitted in evidence, though objected to, were not legally admissible, inasmuch as they were not voluntary. This I regard as the important point in the case. The complainant, Dudley Welch, residing in the town of Saratoga, lost a horse from his stable on the night of the 26th September, 1868; the stable door was opened by force, and the horse taken without the consent of the owner. About three months afterwards he found the horse at North Chatham, Columbia county, about thirty miles from Troy. The plaintiff in error was arrested on suspicion of being the person who took the horse, and the complainant was his uncle. On being arrested, the complainant, in the presence of the officer who held him in custody, attempted to learn from the plaintiff in error [362] where the horse was, and to get admissions from the prisoner as to his taking the horse. The prisoner at first denied all knowledge of the horse, and denied having taken him. The complainant then detailed to him certain circumstances which could be proved, tending to show his guilt. The complainant then told him, (prisoner,) in presence of the officer in whose custody he was, “ that the lest he (prisoner) could do, was to own it up ; that this would le letter for him.” This statement was also repeated to him by the officer who held him in charge. After these statements, made by the complainant and officer, the prisoner began to give information of his manner of taking the horse, and the place to which he took him; and then directed the complainant what roads to take, and the place where he would find the horse. The complainant followed these directions, and found his horse. On the trial, while the complainant was testifying to the conversation at the time of the arrest, the prisoner’s counsel asked the court to be permitted to ask the witness if, at the time of and prior to this conversation, the prisoner was not under arrest Charged with this crime, and if he did not say in substance to prisoner, “ that he had better own up, for it would be better for him,” which request was denied, and the prisoner’s counsel duly excepted. The same objection was made to the testimony of McNamara, the officer who arrested the prisoner, while he was testifying; and a like ruling by the court. This officer'then testified that before the prisoner made any confessions, and while he was under arrest, he said to him in substance, that it would be better for him to confess the matter, and told him the same after-wards, before he was taken before the magistrate. The prisoner’s counsel then moved the court to strike out all the testimony and confessions made by the prisoner, upon the ground that they were not voluntary, and were im- * proper, which the court denied, and the prisoner’s counsel excepted. Although the officer afterwards somewhat [363] varied the language he used to the prisoner, yet he then states it as the substance of what he said; “ if he had taken the horse it would be better for him to own up,” and yet, he also adds, that he again told him, that he “ thought the complainant would not be so hard on him if he could get his horse back.” This fully presents the point, as to whether this confession was voluntary. The rule seems to be well settled. ¡Nothing remains but to make the application.
If the declaration or admission is made before the accused is conscious of being charged with, or suspected of crime, they are admissible under all circumstances, however made or obtained; under oath, or without, upon a judicial proceeding, or otherwise. • But if made afterwards, the law at once becomes cautious and hesitating. The true inquiry then is, was it voluntary ? For unless it is entirely voluntary, it is held to be not admissible. This is the rule as collected from all the authorities, and as laid down in the Court of Appeals, by Selden, J., in the case of The People v. McMahon, (15 N. Y. Rep. 384.) This opinion, so tersely and clearly expressed, is so exactly to the point, that I have extracted from it. He says: “In order to apply this rule, it is necessary to know what is meant by the term voluntary. 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, by voluntary, is meant proceeding from the spontaneous suggestion of the party’s own mind, free from the influence of any extraneous disturbing cause. This was repeated in The People v. Wentz, (37 N. Y. Rep. 304.) After citing various cases 'supporting these propositions, [364] the learned judge says: “Ho dictum to the contrary can be found.”
Applying that principle to this case, it will be seen that the accused, a weak minded man, was, at the time of the declarations proved, under arrest, in the custody of an officer; the accuser his uncle ; his custodian an officer concerned in the administration of justice; the accused naturally acting under an agitation of mind, was promised advantage if he confessed. It seems to me that this was a case clearly within the principle of the cases cited above, not a voluntary confession. Some inducement was held out, some extraneous influences did prevent the admission from being the spontaneous suggestions of his own mind, from such influences. If I am right in this, there was error committed on the trial. It is of no importance for us to see that there was probably other sufficient evidence in the case to have convicted the accused. I think there was. I have no doubt of his guilt, myself; but this was a question for the jury, not for us. He was entitled to a trial by the settled rules of law; a material error was committed against him; this entitles him to a reversal of the judgment.
There are two other complaints made of error. If they are such, they are not so clearly so as the one I have noticed. The admission of evidence of the accused taking a wagon on the same night from another person, is charged as error. I do not think, under the circumstances, that this was error. The taking a wagon to use with the stolen horse, if they, were used together, was evidence of a corroborating circumstance to the main charge, and could be used as evidence for that purpose, notwithstanding it was proof of another felony also, not charged in the indictment; and yet, there may be a case of another distinct felony committed at another time, and under other circumstances, which it would be error to admit in proof.
[365] [Wabren General Teem,
July 13, 1869.
The refusal of the learned judge to charge propositions, considered abstractly, would seem to be erroneous, but they must be regarded as based upon what had been proved in the case; and the refusal to charge as requested, was refused on the ground of having no basis in the evidence that authorized the requests made. One or two of the requests to charge, was, that the confessions of the prisoner, under the circumstances, were not voluntary. This, also, the judge refused; and if we are right in the first point we have reviewed, this was also error. I am therefore of opinion that the judgment of the court of sessions should be reversed.
Judgment reversed and prisoner discharged, absolutely.