People v. Quinn — 123 A.D. 682

Majority

p. 682

The People of the State of New York, Respondent, v. Martin Quinn, Appellant.

Second Department,

January 10, 1908.

Headnote

Evidence — crime —- when declarations of accomplice inadmissible.

In a prosecution for burglary declarations by an accomplice, made after his arrest and while on the way to the police station; are inadmissible to show that the defendant participated in the crime. -

Appeal by the defendant, .Martin Quinn, from a judgment of the County Court of the comity of Kings; rendered on .the 15th day of April, 1907, convicting him of the crime of burglary in the third degree,, and also from, an order entered in. the. office of the clerk of the county of Kings on the 11th day of May, 1907, denying the. defendant’s motion for a new trial made upon the minutes.

Martin T. Manton, for the appellant.

Peter P. Smith [John F. Clarke with him on the brief], for the respondent.

The defendant appellant and Savage were indicted for burglary. It appears from the record that Savage had pleaded guilty. At the trial of the appellant a witness for the People, Officer Langdon,.who had arrested Savage in the house burglarized, was permitted, over objection and exception, to testify that Savage, in the absence of the defendant, told the witness that the defendant took part in the crime. This confession, or at least the important part thereof, was made by Savage after his arrest and when he was on his way to the police station house in the custody of Langdon. I think that this ruling was reversible error. When the confession (or its important part), incriminating the defendant was made, the burglary had ended. (People v. Hüter, 184 N. Y. 237 .) The rule is declared in Green-leaf on Evidence (Vol. 1 [15th ed.], § 233), where, after discussion, the author says: “In tine, the declarations of a conspirator or accomplice are receivable against his fellows only when they are either in themselves acts, or accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.” (See, also, Commonwealth v. Thompson, 99 Mass. 444 ; State v. Stair, 87 Mo. 268 , citing State v. Duncan, 64 id. 266; Abb. Tr. Brief, Crim. Causes, 314.)

The judgment of conviction is reversed and anew trial is ordered.

Woodward, Gaynor, Rich and Milder, JJ., concurred.

Judgment of the County Court of Kings county reversed and new trial ordered.