People v. McGloin

We should be quite content to rest our decision of this case upon the opinion delivered at general term, were it not a matter affecting the existence of a human life, and therefore requiring the utmost care on the part of those having charge of the administration of the law, to see that no injustice be done to the accused. These considerations have seemed to' require that we should express our views fully on the material questions presented by this record, and state the reasons for the conclusions arrived at. It appears by the record, that the defendant, Michael B. McGloin, was indicted for murder in the first degree, in having caused the death of one Louis Hanier, on the morning of the 30th day of December, 1881. The indictment contained two counts, the first charging that the murder was committed while the said McGloin was engaged, with others, in the commission of the crime of burglary and felony, and the second, that the said crime of murder was committed with a deliberate and premeditated design to effect the death of said Louis Hanier. Upon the trial of this indictment at a court of general sessions in the city of Hew York, a statement proved to have been made and

The first of these objections proceeded upon the assumption that the officer, effecting the arrest, had threatened the prisoner, and that such threats had produced an emotion of fear in his mind, probably affecting the character of his confession. If the assumption is well founded, it will be fatal to the admissibility of the evidence, and also to the conviction, in part founded thereon. The facts, upon which this ground of objection rests, are as follows:

Upon making the arrest, the officer informed McGrloin that he “was charged with shooting Louis Hanier that he (the officer) was inspector of police, and “had been watching him” (the prisoner) “since the shooting, and saw him in company with a man named Healy, and saw him try to steal a barrel of whiskey the night before I arrested him.” “ I also told him about the pledging of the pistol” (referring to the pawning by McGrloin, the day after the murder, of a pistol, with which the crime was supposed to have been perpetrated). “ McGrloin said he would make a statement. I said to him, I would send for Coroner Herman to take it.” The coroner was then sent for, and came to police headquarters, where the defendant was

The question upon which the second ground of objection was based, prior to the adoption of the Code of Criminal Procedure, was the subject of some controversy and difference in the courts (Hendrickson v. People, 10 N. Y. 13 , 28 ; People v. McMahon, 15 Id. 384; People v. Wentz, supra; Teachout v. People, 41 N. Y. 7 ). The difficulty, in brief, seemed to be determining, whether the reason for the objection rested upon the theory that the evidence was given in obedience to the requirements of a subpoena, and was therefore compulsory and objectionable, as requiring'a prisoner to give evidence which might criminate himself, or whether it was based upon the presumption that a prisoner, giving evidence in relation to a crime, with the commission of which he is charged or suspected, gives it under such influences as to produce an apprehension of danger and mental disturbance, rendering it unjust to hold him responsible for what he says while subjected to such influences. It was said that such evidence is not voluntary, because the mind being confused and agitated by the apprehension of danger, cannot reason with coolness, and will naturally resort to falsehood to escape the consequences of the impending danger (Hendrickson v. People, supra ; People v. McMahon, supra).

The effect of these differences was to cause. the line which distinguished admissible from objectionable confessions, to fluctuate according to the theory which was followed, and deprived the law of that certainty

in Hendrickson v. People, supra, said, in relation to the objection that a confession was not taken conformable to the statute: “ But neither is the statute, nor were the common law rules, of which it . is declaratory, applicable to any examination except that of a person brought before a magistrate on a charge of crime. . All other examinations aye classified as extrajudicial.” The provisions of the Code of Criminal Procedure, regulating the mode of taking and authenticating the statements of prisoners accused of crime, contained in §§ 188 to 200, inclusive, refer in terms only to the judicial examinations therein provided for, regularly instituted before one of the magistrates described in § 147, for the examination of criminals. A coroner is not one of these magistrates.

The Code of Criminal Procedure for this State went into effect September, 1881, and contained the following provision: “ § 395. A confession of a defendant, whether in the course of judicial proceedings, or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but it is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.” The crime in this case was committed after the Code took effect, and is therefore, governed by its provisions. The admissibility of the evidence in controversy under this statute, there being no proof that the same was made either under the “influence of fear produced by threats,” or upon the stipulation referred to in the act, is beyond question. It is thus found that neither at common law, nor by the statute, was this evidence open to any of the grounds of objection raised.

One Frederick Banfield was called as a witness by

When it is considered that a mere conviction, not followed by a sentence, never worked a disability, it will be seen- that the construction contended for by the plaintiff in error [appellant], would deprive section 832 of the Code of Civil Procedure, as well as section 714 of the Penal-Code, of any meaning or effect whatsoever. One of the most familiar rules for the construction of statutes requires, not only that some effect should be given to all acts of the legislature if capable of such interpretation, but the effect must be given, if possible, to all the language employed (Matter of N. Y. & Brooklyn Bridge, 72 N. Y. 527 ). The language used in section 832 to describe the object intended to be accomplished, is that which has obtained invariable usage, not only in the reports, but with text writers, and is there used according to the signification given to it by legal writers. It was, therefore, an accurate legal description of such a disqualification to say, that it is produced by a conviction of felony. It is the depravity of nature, evidenced by the conviction, that creates the disability, and is the only cause of that disability. “It is the infamy of the crime, and not the nature of the punishment, which destroys competency” (1 Wharton’s Crim. Law, % 760).

While the terms “disqualified by a sentence for

Notwithstanding the admission of the confession of McGloin in evidence against him, it is still required by section 395 of the Code of Criminal Procedure, in order to warrant his conviction, “ that additional proof that the crime charged has been committed,” should be given. Without undertaking to state the evidence in detail, it will be sufficient to refer to the severalprominent facts, which the evidence, outside of the admissions contained in his confession, either proved or tended to prove. The proof showed, that previous

It was further proved by Frederick Banfield, that he saw McGloin about half-past ten o’clock of the morning of the said 30th of December, and had the following conversation with him :

“I asked him,” says Banfield, “if, on the night before, he was out. He said, ‘ Yes.’ I told him there was a man killed around Twenty-sixth street: I asked him if he was around Twenty-sixth street the night before; he said ‘yes.’ Then he said to me, ‘A man ain’t a tough until, he knocks his man out.’ ” This evidence, we think, not only tended to prove, aside from McGloin’s confession, that a burglary was committed upon the dwelling of Louis Hanier, on the morning of the 30th of December, 1881, but also tended to establish the fact, that Louis Hanier was unlawfully killed, in the course of the commission of such burglary, and that the defendant was a principal in the commission of both such crimes. We are, therefore, of the opinion that there was sufficient corroboration of the confession of the defendant, McGloin, to warrant his

The conclusions at which we have arrived, as to the competency of the evidence objected to, as well as the legal. effect of all the evidence of the case, render it unnecessary to examine at length the several exceptions taken to the charge of the recorder by the counsel for the plaintiff in error [appellant]. Three exceptions are brought to our attention by the brief of the counsel. The .first is an exception to the refusal of the recorder to charge as follows : “ That in order to convict under the first count of the indictment, the jury must be satisfied beyond reasonable doubt, 1st. That a burglary or larceny was committed by the prisoner : 2nd. That, while so engaged in the commission of either or both of said offenses, the prisoner killed the deceased. Before the jury can consider the proposition as to the killing whilst in the perpetration of a felony, they must find that there was evidence, exclusive of the confession of the prisoner : that the felony had been committed; that the prisoner’s alleged confession is not sufficient to warrant the jury in finding affirmatively that the offense of burglary or grand larceny, or both of said offenses, had been committed, without additional proof on the subject.” If there were any erroneous

All the judges concurred, except Rapallo, J., absent.