Woodruff, J.
The exhaustive examination and discussion of authorities by court and counsel, in Hendrickson v. The People (10 N. Y., 13), and McMahon v. The People (15 N. Y., 384), render it wholly unprofitable to go again though a review of the cases, in which the declarations of a [9]*9person made under oath may be received, or must be rejected, when offered as evidence on his trial for a crime.
In my judgment, we ought to regard the decision in the former of those cases decisive of the present. It is quite true that the very able opinion of the learned judge, who alone appears to have discussed the latter case, reiterates most distinctly the views expressed in his dissenting opinion in the former; but we are not warranted in inferring that the other judges intended either to overrule or weaken the effect of the former decision.
In the first case the prisoner had been examined as a witness before the coroner, who was conducting an inquiry into the cause of death, but without any charge having been made against the prisoner, and when he had not been apprised that suspicion rested upon him, except so far as the interrogatories addressed to him were calculated to suggest, that the death was caused by his agency.
In the latter case the prisoner was in actual custody, as a suspected party (without warrant), and was examined by the coroner while in such custody on oath.
In the former case the declarations were held admissible; in the latter they were held incompetent. The precise distinction by which the latter is distinguished, is that in the latter case the prisoner stood before the coroner as a party in fact charged with the crime, and was there subjected to examination on oath touching his own guilt or innocence. The coroner was in such case substantially in the place of an examining magistrate : and the fact that the prisoner was held under an arrest made without warrant, could not make his protection against such an inquisition less imperative.
The present ease in nowise differs from that of Hendrickson, save in this : Here, Teachout had been apprised distinctly before he was called as a witness, by one of the persons present, that “ it was charged that his wife had been poisoned and that he was the man that was going to be arrested for the crime.” He was also, before he was sworn, informed by the coroner “that there were rumors that his wife came to [10]*10her death by foul means, and that some of those rumors implicated him.”
He was, therefore, examined with full knowledge that he was suspected of having murdered his wife. Whereas, Hendrickson was not otherwise so informed than by the nature and subject of the questions put to him, which it is true were such that I think no intelligent person could fail to perceive that they indicated a distinct suspicion of his guilt.
It is proper, however, to state further, that in the present case, Teachout was further informed by the coroner, before he was sworn, that he was not obliged to testify unless he chose. He said he had no objection to telling all he knew. There is, therefore, in this case, no pretense- that the declarations in question were not voluntary, as that word is used in distinction from compulsory; or that they were not voluntary in every legal sense, if a person, under suspicion of having committed a crime, and conscious of that suspicion, can testify voluntarily.
The present case, therefore, presents the single question,. whether the law regards consciousness of being suspected of a crime as so disqualifying a person that his testimony, in other respects freely and voluntarily given before the coroner, cannot be used against him on his trial, on a charge of such crime subsequently made, it having been decided that if he be not conscious of such suspicion, such testimony may be used; and in both of the cases above referred to, the mere fact that the declarations are on oath, does not make any difference in the result.
The question is, therefore, reduced to this: Do statements or admissions of a person, which would otherwise be admissible in evidence to convict him of crime, become inadmissible when it appears that such person was, at the time, conscious that he was suspected of the crime ? The reasoning of the dissenting opinion in Hendrickson’s case, and of the prevailing opinion in McMahon’s case, go the entire length of affirming the proposition thus suggested".
It is true that the learned judge is constrained to admit [11]*11that the authorities do not affirm the inadmissibility of such admissions by a party under suspicion, unless they are made in some investigation into the crime itself. But the ground upon which exclusion is urged imports no such limitation, for the reasoning is, that “ the mental disturbance produced by a direct accusation, or even a consiousness of being suspected of crime,” renders such declarations unreliable. The principle of exclusion “has its foundation in the uncertain and dangerous nature of all evidence of guilt drawn from the statement of a party conscious of being suspected of crime.”
If that be the foundation of the rule, I perceive no reason for confining its application- to admissions or declarations made while under examination touching the crime itself, before any officer, under oath or otherwise. If the declarations, made under consciousness of suspicion, are, for that reason, unreliable, they must be unreliable whenever and wherever made, so long as it is manifest that a desire to ward off suspicion, and avoid the danger of which suspicion gives notice, must operate upon the mind. And equally when the suspected party encounters that suspicion while fully at large, among third parties, as when called as a witness, to state, if he sees fit, what he knows of the cause of the death. And if consciousness of suspicion renders proof of declarations unreliable, so also it should render proof of his acts unreliable, and they should be equally excluded. And yet it has not, I think, been doubted that proof of the acts of the party, under the very pressure of suspicion, is competent. If a party, on receiving information that he is suspected of a crime, flees, or conceals himself, or, by other acts, manifests an intent to elude pursuit or avoid investigation, this may be proved as some indication of conscious guilt; and yet it is consistent with innocence, and may be the mere result of fear, and the pressure of suspicious circumstances may lead the innocent man to resort to this as a measure of safety. This is quite as true as that suspicion will lead a man to false statements for the same purpose.
[12]*12There must he some limit to the rule excluding declarations, short of the test that they be made when under no consciousness that he is under suspicion. Else the whole conduct of the party, from the moment he is apprised, that he is suspected, must be declared too unreliable to be made the subject of any inference whatever.
That declarations, made under the influence of a charge of guilt, under actual arrest or under examination with such a charge impending, should be excluded, except where a careful obedience to the statutory precautions is observed, is a just concession to the considerations of charity and regard for human weakness, exhibited in the reasoning referred to. More than this would be carrying those considerations further than the public interests and a just regard for public safety will permit.
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Woodruff, J.
The exhaustive examination and discussion of authorities by court and counsel, in Hendrickson v. The People (10 N. Y., 13), and McMahon v. The People (15 N. Y., 384), render it wholly unprofitable to go again though a review of the cases, in which the declarations of a [9]*9person made under oath may be received, or must be rejected, when offered as evidence on his trial for a crime.
In my judgment, we ought to regard the decision in the former of those cases decisive of the present. It is quite true that the very able opinion of the learned judge, who alone appears to have discussed the latter case, reiterates most distinctly the views expressed in his dissenting opinion in the former; but we are not warranted in inferring that the other judges intended either to overrule or weaken the effect of the former decision.
In the first case the prisoner had been examined as a witness before the coroner, who was conducting an inquiry into the cause of death, but without any charge having been made against the prisoner, and when he had not been apprised that suspicion rested upon him, except so far as the interrogatories addressed to him were calculated to suggest, that the death was caused by his agency.
In the latter case the prisoner was in actual custody, as a suspected party (without warrant), and was examined by the coroner while in such custody on oath.
In the former case the declarations were held admissible; in the latter they were held incompetent. The precise distinction by which the latter is distinguished, is that in the latter case the prisoner stood before the coroner as a party in fact charged with the crime, and was there subjected to examination on oath touching his own guilt or innocence. The coroner was in such case substantially in the place of an examining magistrate : and the fact that the prisoner was held under an arrest made without warrant, could not make his protection against such an inquisition less imperative.
The present ease in nowise differs from that of Hendrickson, save in this : Here, Teachout had been apprised distinctly before he was called as a witness, by one of the persons present, that “ it was charged that his wife had been poisoned and that he was the man that was going to be arrested for the crime.” He was also, before he was sworn, informed by the coroner “that there were rumors that his wife came to [10]*10her death by foul means, and that some of those rumors implicated him.”
He was, therefore, examined with full knowledge that he was suspected of having murdered his wife. Whereas, Hendrickson was not otherwise so informed than by the nature and subject of the questions put to him, which it is true were such that I think no intelligent person could fail to perceive that they indicated a distinct suspicion of his guilt.
It is proper, however, to state further, that in the present case, Teachout was further informed by the coroner, before he was sworn, that he was not obliged to testify unless he chose. He said he had no objection to telling all he knew. There is, therefore, in this case, no pretense- that the declarations in question were not voluntary, as that word is used in distinction from compulsory; or that they were not voluntary in every legal sense, if a person, under suspicion of having committed a crime, and conscious of that suspicion, can testify voluntarily.
The present case, therefore, presents the single question,. whether the law regards consciousness of being suspected of a crime as so disqualifying a person that his testimony, in other respects freely and voluntarily given before the coroner, cannot be used against him on his trial, on a charge of such crime subsequently made, it having been decided that if he be not conscious of such suspicion, such testimony may be used; and in both of the cases above referred to, the mere fact that the declarations are on oath, does not make any difference in the result.
The question is, therefore, reduced to this: Do statements or admissions of a person, which would otherwise be admissible in evidence to convict him of crime, become inadmissible when it appears that such person was, at the time, conscious that he was suspected of the crime ? The reasoning of the dissenting opinion in Hendrickson’s case, and of the prevailing opinion in McMahon’s case, go the entire length of affirming the proposition thus suggested".
It is true that the learned judge is constrained to admit [11]*11that the authorities do not affirm the inadmissibility of such admissions by a party under suspicion, unless they are made in some investigation into the crime itself. But the ground upon which exclusion is urged imports no such limitation, for the reasoning is, that “ the mental disturbance produced by a direct accusation, or even a consiousness of being suspected of crime,” renders such declarations unreliable. The principle of exclusion “has its foundation in the uncertain and dangerous nature of all evidence of guilt drawn from the statement of a party conscious of being suspected of crime.”
If that be the foundation of the rule, I perceive no reason for confining its application- to admissions or declarations made while under examination touching the crime itself, before any officer, under oath or otherwise. If the declarations, made under consciousness of suspicion, are, for that reason, unreliable, they must be unreliable whenever and wherever made, so long as it is manifest that a desire to ward off suspicion, and avoid the danger of which suspicion gives notice, must operate upon the mind. And equally when the suspected party encounters that suspicion while fully at large, among third parties, as when called as a witness, to state, if he sees fit, what he knows of the cause of the death. And if consciousness of suspicion renders proof of declarations unreliable, so also it should render proof of his acts unreliable, and they should be equally excluded. And yet it has not, I think, been doubted that proof of the acts of the party, under the very pressure of suspicion, is competent. If a party, on receiving information that he is suspected of a crime, flees, or conceals himself, or, by other acts, manifests an intent to elude pursuit or avoid investigation, this may be proved as some indication of conscious guilt; and yet it is consistent with innocence, and may be the mere result of fear, and the pressure of suspicious circumstances may lead the innocent man to resort to this as a measure of safety. This is quite as true as that suspicion will lead a man to false statements for the same purpose.
[12]*12There must he some limit to the rule excluding declarations, short of the test that they be made when under no consciousness that he is under suspicion. Else the whole conduct of the party, from the moment he is apprised, that he is suspected, must be declared too unreliable to be made the subject of any inference whatever.
That declarations, made under the influence of a charge of guilt, under actual arrest or under examination with such a charge impending, should be excluded, except where a careful obedience to the statutory precautions is observed, is a just concession to the considerations of charity and regard for human weakness, exhibited in the reasoning referred to. More than this would be carrying those considerations further than the public interests and a just regard for public safety will permit.
. The declarations and the acts of the party should be received and weighed by the jury in the same spirit of charity, and with the same regard for human weakness, and with a careful discrimination; for it is plain that the like declarations and acts may have very unlike significance, when exhibited by persons of different temperament, dispositions, habits and history. Conduct, which in one may be justly regarded as strong evidence of guilt, may, in another, be the impulse of sudden alarm or excited nervous apprehensions, which may unfit one, who is perfectly innocent, to act or speak rationally.
The administration of justice should never lose sight of such considerations. Human frailties and human impulses are to be recognized in giving a construction to both acts and declarations, according to all the circumstances under which they are exhibited, and they furnish an appropriate argument to be addressed to those whose province it is to determine upon all the proofs, the question of guilt or innocence.
These views lead me to the conclusion that the case of Hendrickson v. The People should be regarded as settling the question raised in this case, and that no error in law was committed in permitting the declarations of the prisoner, [13]*13made before the coroner, to go to the jury for their consideration.
I find in one of the printed briefs handed to the court, a point made in behalf of the plaintiff in error, which was not argued orally, and yet should not, perhaps, be deemed" waived.
On the examination of one of the female witnesses, a neighbor, who occasionally visited the deceased during her sickness, she testified that the deceased complained a good deal of distress, and of a sore throat. This was followed by the following question, put on behalf of the people : “ Of what did she complain? ” This was objected to by the counsel for the prisoner, on the gound that it was not competent to prove complaints of the deceased, except when made to a physician in the course of medical treatment. The objection was overruled, and exception taken. The witness answered: “ She complained a great deal of distress in her stomach and bowels; said they felt sore and bad; limbs were numb.”
If the testimony was incompetent, it may not obviate the objection that nearly every other witness who was in attendance upon the deceased had been examined, and testified, without objection, to the like complaints, and in terms nearly identical with those used by this witness.
But I apprehend that the objection is groundless. The natural and impulsive utterances of a person suffering under extreme illness, made to those who are in attendance, or present in the performance of offices of kindness, for the purpose of giving relief or alleviation, are proper evidence of the actual pressure of the symptoms which the sufferer describes. The universal consent of all mankind accords to them some credence, as indications of the state of the sufferer, and they are acted upon in all ministrations for the relief of the distressed. It would be absurd to say that the cries of the patient for water should not be regarded as evidence of thirst, or that complants of pain, made in the usual and natural course, should not be accredited as proof of suffering
My conclusion is, that the judgment must be affirmed.