People v. Doran

Raymond E. Jackson was a native of the city of Albany, and kept a soft drink and ice cream parlor on New Scotland avenue near Allen street in that city. On the night of November 6, 1926, he was murdered while being robbed of his money. The defendant, Charles J. Doran, has been tried and convicted of the murder.

As all of this is told by the defendant himself upon the stand, in his direct examination, we start the discussion of this case with these conceded facts.

On the trial, Damp and Many were witnesses for the prosecution. Damp testified that he owned the Buick coupe and a 32-calibre pistol which he kept in the pocket of the car. He corroborates the defendant’s testimony in saying that about a week previous to the 6th of November he, Doran and a man named Harrington drove out to Jackson’s store to look the place over, and planned to rob it on the night of the sixth. When that night came the three drove out to Jackson’s and Doran and Harrington went in to hold it up. He, Damp, having

Another witness was Frank Scheuer, who testified that on the mght of the murder he met Doran in Albany, who told him that he had just shot a fellow. And the next Mght, Sunday Mght, Doran met him m a restaurant and said: “ ‘ Did you read about the murder in the paper tMs morMng? ’ I told Mm ‘ Yes,’ and he said: * Well, that is the shooting I told you about last Mght.’ ” Again, from the lips of Arthur John Hall, in no way mixed up in these affairs, we have the story that he met Doran on the Mght of the murder some time after eleven o’clock in Albany and had a conversation in wMch Doran told him that there was a shooting affair on New Scotland avenue and to watch the papers the next day. Having read the papers, Hall said to Doran on Sunday, “ That man in New Scotland avenue died,”

In Jackson’s place on the night of the robbery, a gathering of young boys was being held in the basement of the place; it was their meeting room. One of these boys, Jack Shaddock, was coming in the front door of the ice cream parlor when he saw two strange men holding up Jackson, who cried out: “ Help, kid, I am being robbed.’’ One of the men forced the boy to lie down, face downward, and while in that position, he heard a shot, and the men run out. He identified Harrington, but could not see the face of the other man. Other persons in the neighborhood testified that the men in the holdup went off in a Buick car.

Doran confessed; he told the police officers and the district attorney all about the affair, and his own part in it. His confession was taken down in writing and admitted in evidence. His story does not materially vary from that of Damp’s except that he claimed that the shooting was unintentional — an accident. He said in reference to the young boy Shaddock coming in: “ And Chick [Harrington] was excited and started to run — he must have seen the kid coming in and I didn’t know what was running off — I was faced looking out the window and the gun was like that [Illus.] and I turned around and the first thing I know I got a shove like that [Illus.] and then the thing happened, so I forgot all about — I forgot all about Ted being in there alone with him, and I didn’t know what they were doing, and the first thing you know he came flying out at me.

“ Q. Who did ? A. Ted [Harrington], He came flying right across me and' caught me like that [Illus.] with the one hand, and the other hand went over my left shoulder and I had the gun in my hand and I couldn’t swear whether the gun went off or not, but it must have, because he was shot.”

To answer all this on the trial, the defendant sought

This in substance is the case for and against Doran, and on the testimony I do not see how any jury could have come to any other conclusion than that he was guilty of having killed Raymond E. Jackson on the night of November 6, while in the commission of the crime of robbery.

One of the chief grounds thrust upon our attention as calling for a reversal of this conviction is the admission of Doran’s confession. It is said that the court should have excluded it altogether from the case, as it was proved to have been made under the influence of fear produced by threats. (Code Crim. Pro. sect. 395.)

When the point in the trial was reached at which the prosecution sought to introduce the confession, the learned trial justice very fairly and in accordance with our procedure took testimony both for the prosecution and for the defense upon the question of whether or not the confession was voluntary or was the outcome of fear and violence. Upon this question there was a dispute of fact. Doran, called as a witness in his own behalf at this stage of the prosecution, testified that he did not know what he was saying because of the beatings which

Here was an issue of fact. Who was to decide it? The jury. They heard all the testimony, and the court left it to them to say, after a very full and complete charge, whether or not the confession was voluntarily made, and instructed them that if they concluded that it was not voluntary, but had been obtained under the influence of fear produced by threats, they should throw it out of the case altogether, and disregard it. The judge told them that the People must prove and they must find it to be a voluntary confession before it could be received as evidence. This is not only according to the practice in this State in the trial of criminal cases, but is also the law. When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury with the direction that they should reject the confession if upon the whole evidence they are satisfied it was not the voluntary act of the defendant. (Wilson v. U. S., 162 U. S. 613 , p. 624; Commonwealth v. Preece, 140 Mass. 276 ; Burdge v. State, 53 Ohio St. 512 ; People v. Howes, 81 Mich. 396 ; Thomas v. State, 84 Ga. 613 .)

This has been the practice in this State followed from an early day in a long line of cases. When the defendant raises the objection to the admission of the confession on the ground that it was not voluntarily made, it is the duty of the judge, if requested, to hear his evidence upon the question. It is error to refuse so to do. (People v. Fox, 121 N. Y. 449 , 453.) When, however, upon this preliminary examination, an issue of fact is raised by conflicting testimony, the confession may be admitted and the question left to the jury whether it were the

In People v. Kennedy ( 159 N. Y. 346 , p. 359) this court said: “ If the defendant supposed there was any conflict in the evidence as to the circumstances under which his statements were made, or as to whether they were voluntary or otherwise, he should have requested the submission of that question to the jury.” In People v. Rogers ( 192 N. Y. 331 , at p. 345), Judge Willard Bartlett, writing for the court, said: “ The prisoner has always the right to require of the judge a decision as to the competency of evidence which is offered against him, and even after the judge has decided the evidence to be competent, the prisoner has the right to ask the jury to disregard it and give no weight to it because of the circumstances under which the confessions were obtained.” And in People v. Brasch ( 193 N. Y. 46 , at p. 57) this court, speaking through Judge Hiscock, repeated: “ It was the duty of the court preliminarily to rule on the admission of evidence of the confessions. It was proper in case an issue of fact arose in regard to their character and the circumstances which surrounded them to submit such issue to the jury at the close of the entire case.” More emphatic stiL was this court in People v. Randazzio ( 194 N. Y. 147 , p. 156), when Judge Haight wrote: “ If there is no conflict in the evidence with reference to threats, the question of the admission of confessions is for the court, but if there is a conflict the question ultimately is for the jury.” To the same effect was the ruling in People v. Schermerhorn ( 203 N. Y. 57 , at p. 71), where Judge Werner said: " The question whether these statements were voluntarily made was fairly submitted to the jury and the verdict implies that these confessions were regarded as freely made.” The practice was again approved in People v. Trybus ( 219 N. Y. 18 , at p. 22); People v. Nunziato ( 233 N. Y. 394 , p. 397); and was applied in People v. Stielow ( 161 N. Y. Supp. 599 ).

It may be that a question of fact created by Doran’s testimony arose as to the voluntary nature of the conjfession. The jury, under proper instructions, and not 'the court, were the ones to determine this question of fact. No fault can be found with the very full and complete way in which the court instructed them upon this issue. In fact, no fault whatever is found with the judge’s very able charge. For the judge himself to have determined this question of fact and to have excluded the confession altogether would have been going very far indeed toward usurping the functions of a jury, bordering almost upon arbitrary action.

And especially would this have been so in this case where very strong and convincing evidence showed Doran’s testimony to have been false, and his confession to have been voluntarily made.

I will now present the reasons why the judge could not have taken the question from the jury and have decided it for himself without doing a grave injustice to the People, and exceeding his judicial powers.

Doran was not arrested until March 17, 1927. He was arrested in connection with holdups in Albany which he himself admits upon the stand and confessed to the assistant district attorney, John T. Delaney, that very night. Later it was learned after the arrest of Damp that Doran and Harrington were implicated in the killing of Jackson. ■ Doran denied it until he was confronted by Damp and by Harrington in the Watervliet police station on the 20th of March, three days after his arrest. When he learned that these men had confessed, he, it is said, owned up and said that he might as well tell the truth. On the night of the 20th, Damp, Harrington and Doran were taken to the Watervliet police station by the direc

Doran says he talked and made his confession after being beaten by the police; that he was taken into a little office which had been partially used for a gymnasium in the police station, and there assaulted by the officers; that he was knocked unconscious frequently, his teeth loosened, his face and lip cut and bleeding; that his clothes were stained with blood; and that under these conditions he answered questions according to answers put into his mouth by the police officers, and that his confession taken down by the stenographer, Myers, through questions put by Mr. Delaney was made while he was

To this testimony of Doran’s there are so many contradictions from the circumstances and from witnesses that a clear issue of the fact was presented for the jury.

First. His statement itself when read bears evidence of calm and composure, and the statement of facts which the police could not have known. It is not a “ Yes ” and “ No ” statement, but that of one who talked freely. The following indicates what I mean. “ Why, there was another fellow went around with him [Harrington]. I met the both of them; been around a little bit with both of them.

“ Q. Had he ever gone out on any jobs before this Jackson job? A. Is it necessary to tell that?

“ Q. Well, not if you don’t want to. A. I would rather not.”

Time and space do not permit quotations from this confession showing similar illustrations of Doran’s self-control, freedom of narrative speech and his own choice of language.

Second. To believe Doran, would make perjurers of Dr. Vander Veer, a well-known physician , of Albany, of William T. Whittemore, a newspaper man on the Sunday Telegram, of Officers Peacock, Coffey, Walsh and Geary, and not only brand the testimony of Assistant District Attorney John T. Delaney, and that of his stenographer, Frank Myers, as being absolutely false, but subject Delaney to charges of unprofessional conduct. That this rather harsh conclusion is not without foundation, let me more fully explain.

Doran says that the marks of the assault were visible on his person; that his lips were cut, and that he was beaten so badly about the face and body that he was rendered unconscious several times. He says that the stains of blood were upon bis clothing, and that these things would have been evident to the persons who saw

Whittemore, the newspaper man, saw Doran in jail a few days after his confession, saw no marks of violence whatever, and Doran told him that he had not been abused.

The officers all testified that Doran was not struck or beaten, or treated with violence, neither was he threatened. They did urge and persuade him to tell the truth, and questioned him about his doings. When he saw Harrington and Damp and learned of their confession, he decided to tell the truth.

Doran says that Assistant District Attorney John T. Delaney was with him in Watervliet all the time he was there; that Delaney left him alone in the room with Officer Peacock; that when he, Doran, came out, he was bleeding and had been violently and brutally assaulted and that he then sat down and submitted to the questioning of Mr. Delaney. If this were true, Delaney must have seen and known of his condition and have acquiesced in the violence. Delaney and Myers, the stenographer, both swore that there was no evidence of violence on Doran’s person; and that his statements were freely made.

If Doran’s story be true, the principal police officials of the Albany police force, a district attorney of repute and a physician of standing have deliberately falsified.

Third. Another reason for disbelieving Doran. He was seen in j ail in Albany within a very short time after his arrest by his sweetheart, Lucille Davis, and by members of his family. Not one of these persons testified to having seen any marks or evidence of violence upon his person.

Fifth, if Doran was making a false confession to having committed murder, and was doing it through fear of the police and as the result of their violence, he would have said that he had shot and killed Jackson.. There would have been no quibbling about it. In his confession he in narrative form tells how the shooting was accidental and not intentional. Part of this I have quoted above.

Sixth. The character of Doran as shown by his testimony upon the stand did not make him a creditable witness.

Seventh. The confession as made by Doran is in harmony with his own testimony in most every particular except as to the events' at the time of the shooting. And again he later in Albany corrected and added to his confession when it is conceded no violence was used.

In the face of this testimony in behalf of the prosecution how could the judge have ruled out the confession on the ground that it was made under the influence of fear produced by threats?

The officers frankly admit that on the night in the Watervliet station house when these confessions were being taken, Damp fainted and that they got him some whisky to stimulate him. Much has been made of this in the argument and in the discussion, as indicating that Damp must have fainted by reason of the violence used. Realization of the horrible deed which had been committed and that at last he had been discovered and was in the hands of the law must have had some effect even upon a hardened criminal. The onrush of the appreciation of guilt and its consequences have at times a tremendous debilitating effect. Peacock also admitted

Beviewing this case, therefore, as a whole, I think all the issues of fact were fairly left to the jury who heard all the testimony, saw all the witnesses, arrived at their conclusion apparently after a careful and discriminating consideration, and that we are not justified in disturbing their verdict because we may be of the opinion that the district attorney should have taken the defendant’s confession in Albany instead of in Watervliet, or because the police authorities in their zealousness to unravel the Jackson murder did not immediately arraign the defendant after his arrest. Delay in arraignment does not exclude a confession. (People v. Trybus, supra.) Neither does the fact that officers of the law questioned the defendant persistently in regard to his connection with the crime (People v. Rogers, 192 N. Y. 331 , p. 348), nor that they failed to warn him of his privileges or rights. (People v. Kennedy, 159 N. Y. 346 , 360; People v. Randazzio, 194 N. Y. 147 .) That the confession was sworn to is likewise no objection. (People v. Mondon, 103 N. Y. 211 , 219.)

Even when evidence has been procured through wrong acts upon the part of officials, it is not necessarily excluded. (Adams v. New York, 192 U. S. 585 .)

There is no question raised as to the power of the Legislature to restore the common-law rule. It is said, however, that the judge should have exercised his discretion by granting separate trials. . The determination of the trial judge will not be reversed by this court unless there has been an abuse in the exercise of his discretion. (People v. Stockham, 1 Parker’s Criminal Rep. 424; Webster v. People, 92 N. Y. 422 ; Knickerbocker Trust Co. v. O., C. & R. S. Ry. Co., 197 N. Y. 391 ; People ex rel. Flynn v. Woods, 218 N. Y. 124 ; Matter of Whitman, 225 N. Y. 21 .) Unless there were circumstances or facts which would make it unfair to try the defendant with Harrington, there would of course be no abuse of discretion. The only suggestion that can be made why the two men should have

Another question has been presented which we may as well deal with at this time, although it is not here in such form as to constitute an error reviewable by this court. It relates to the challenges of jurors. Section 360 of the Code of Criminal Procedure provides that “ when several defendants are tried together they cannot sever their challenges, but must join therein.” The number of peremptory challenges in a crime punishable with death is thirty. The court ruled in this case that the defendants must unite in their peremptory challenges. His ruling, as is quite evident, applied only to peremptory challenges. The discussion arose over a motion by the respective counsel that each defendant be granted thirty peremptory challenges. The court ruled, in accordance with the wording of this section, that he would not accept a peremptory challenge except upon the defendants uniting therein. No ruling was asked for or made on any

The matter of peremptory challenges rests entirely with the Legislature. (People v. Cosmo, 205 N. Y. 91 , 95, 97; People v. Dunn, 157 N. Y. 528 , 535; Hayes v. Missouri., 120 U. S. 68 , 69, 70.) If this were a question of challenges for cause, it would be another matter. The Legislature has no such discretionary power as to challenges for cause. The defendant, according to the due process of law, is entitled to a fair and impartial tribunal, including the jury. (Turney v. Ohio, 273 U. S. 510 .) The Legislature could not take from the court the power to exclude a juror who had declared himself to be biased and partial or was related to a party or had an interest in the cause.

However, this question does not arise in this case, as the ruling related only to peremptory challenges. The court followed strictly the wording of the statute which said that defendants when tried together cannot sever their challenges, but must join therein. We take it that the interpretation given by the trial justice was correct. If it were intended to give to each of the defendants thirty challenges, this would have been a very clumsy way to express it. If each could exercise a challenge independent of the other, there would be no such thing as joining in a challenge. We note that in the case of People v. Snyder and Gray, recently argued before us, the trial justice gave to each of the defendants thirty peremptory challenges, showing that there is some confusion in the application of this section. Until the Legislature modifies or changes the language of this section, we think it is wise to follow the plain meaning of the words used and give to all the defendants tried ' together for murder in the first degree only thirty challenges, as if there were but one defendant, and not multiply them according to the number of the defendants.

Neither would it do, on the other hand, to reduce the challenges by dividing the thirty among the defendants, giving in this case where there were two defendants only fifteen peremptory challenges each. The defendants under this section must unite in their challenges. Apparently this rule works no hardship as a jury was obtained after the exercise of only s'xteen peremptory challenges, in which the defendants joined. It will be a very easy matter for the Legislature to change the wording of this section if it were intended or is intended to give to each defendant thirty challenges to be exercised without joining therein the other defendants.

For the reasons here expressed the judgment of conviction of the defendant, appellant, should be affirmed.

(concurring). The identification of the defendant as one of the murderers of Jackson rests — apart from his confession — upon the testimony of Damp, an accomplice, and upon alleged admissions made to Many, a criminal who had on other occasions been engaged in hold-ups with Doran, and to Scheuer, an associate with criminals, if not one himself. There was also a conversation with one Hall on the night of the murder when Doran betrayed knowledge that there had been a shooting affray.

For the defense Doran testified to his presence at a theatre at the hour of the murder. He has a criminal record and was an interested witness. He also admits that a week before the murder he started with others to

Upon the case so made a question of fact was presented to the jury. We could not have set aside a verdict of guilty as against the weight of evidence. On the other hand, guilt is not so clear and certain that we may ignore substantial errors.

Conviction was certain, however, if a confession made by Doran was received and considered. It was logical, detailed and corroborated the evidence of the accomplice, Many. It showed Doran to be guilty of the crime as charged.

It is said, however, that it was procured by force and fear. This is disputed. Under such circumstances, the trial judge admitted it in evidence, telling the jury that if procured as the defendant claimed, they should wholly disregard it. Otherwise, they should give it such weight as in their opinion it deserved.

If this was error, the judgment should be reversed. It is said we do not know what was the conclusion of the jury. They may have rejected the confession entirely and yet convicted the defendant on the remaining testimony. That is no answer. We may disregard errors which do not affect the substantial rights of the parties, but we must be satisfied that these rights are not affected. The possibility that they may not be is insufficient.

The duty of the trial judge is clear. To him is addressed the preliminary question. If there is no dispute but that the confession was extorted by force or fear, he should reject it. So he should do if a verdict that it was freely made would be against the weight of evidence. It is only where a fair question of fact is presented that he should take the course taken in this case.

(dissenting). On March 17th, 1927, the defendant Doran was taken in custody by the police of the city of Albany. On March 19th Floyd Damp was taken in custody. Later in the same day Theodore Harrington was apprehended. All were lodged in police stations in the city of Albany. No warrant had previously been issued for the arrest of any of these men, no charge was pending against them. They were not arraigned before a magistrate till March 25th. The police, however, had some information which led them to believe that these

The police questioned Damp and Harrington the day they were arrested. Both at first made stout denial of any participation in or knowledge of the crime. Damp and Harrington were brought face to face. Harrington denied acquaintance, but Damp after continued questioning made a statement to the police and to Mr. John T. Delaney, the assistant district attorney of Albany county, in which he confessed that Doran and Harrington and he had planned and carried out a robbery in Jackson’s place of business and that during the commission of the felony Doran had shot Jackson.

At the direction of the assistant district attorney, the police of the city of Albany took Damp to the police station in the city of Watervliet. Then they took Harrington to the same police station. The assistant district attorney also went there to take a statement from Harrington, when Harrington should be ready to talk. Harrington still denied acquaintance with Damp. At the station house Damp fainted. Peacock, the assistant chief of police of Albany, went out with a man who happened to be in the Watervliet station house and obtained a bottle of whisky. Harrington was informed that Damp had fainted. Peacock gave some of the whisky to Damp, who had fainted after being questioned by the police, and some of the whisky to Harrington, who had not fainted but who was still being questioned by the police. It was near midnight on Saturday night. Harrington had been informed that Damp had made a confession which accused him and Doran of guilty participation in the Jackson murder. Still Harrington denied acquaintance with Damp. Then Peacock directed the other police officers to withdraw from the room and to leave Harrington and himself there alone. The room was a large cell, twelve feet by twenty feet. It was used at times by the Watervliet police as

After Harrington had made his statement to Mr. Delaney, Doran was brought from Albany to the police station at Watervliet. He was taken to the doorway of the room where Harrington was detained. Mr. Delaney testified: “ At the doorway I said: ‘ Harrington, is that the Doran that was with you at the Jackson affair? ’ and he said ' Yes,’ and I said, ' All right, take him out.’ ” Mr. Delaney did not question Doran at that time, as he might have done. He knew that Doran was not yet ready to admit complicity in the crime. He waited in the police station till Doran was ready; he waited till the small hours of the morning while Doran was detained by police officers in the same room in which Harrington had been induced to make his confession.

Perhaps at this point it may be well to quote verbatim from the record some of the questions put to Mr. Delaney and the answers he gave, instead of summarizing Mr. Delaney’s testimony: “ Q. And what direction did you give at that time, if any, regarding the defendant Doran? A. None. The police were doing their work. Q. The police were doing their work? A. Yes. Q. And you were simply there to — A. (Interrupting) I was taking it easy. Q. (Continuing) — to take the statements?

What was the “ work ” which the police did in that room? The jury might well refuse to accept Doran’s testimony that he was brutally beaten there. The assertion of a confirmed criminal, a man of evil character and associations, should not weigh heavily against the denial by officers of the law. The jury could not, however, reasonably disregard the testimony of Peacock himself that in that room in the Watervliet police station he put on a boxing glove while he was persuading Doran to confess. This record presents squarely the question whether a confession obtained under these circumstances is admissible in evidence against the accused.

Section 395 of the Code of Criminal Procedure provides that “ a confession of a defendant * * * can be given in evidence against him, unless made under the influence of fear produced by threats * * *.” When evidence is offered, the trial judge must decide whether or not it shall be admitted, but where the question of whether a confession is inadmissible because made under the influence of fear produced by threats depends upon the determination of a dispute of fact, the trial judge may under the practice prevailing in this jurisdiction admit the confession and then submit the question of fact to the jury under proper instructions. (People v. Kennedy, 159 N. Y. 346 ; People v. Brasch, 193 N. Y. 46 ; People v. Randazzio, 194 N. Y. 147 .) In this case the trial judge so ruled. It may be conceded that this ruling presents no reversible error if either the judge or jury cou d reasonably hold that the confessions were not made under the influence of fear produced by threats. It should require no argument to show that a trial judge may not admit in evidence a confession where reason and common

Doran, I have said, is a confirmed criminal, a man of bad character and evil associations. His testimony that he was brutally beaten by the police till he was bruised and sore is met by the denials of the police officers whom he accuses, and by Mr. Delaney, who has gained an honorable reputation by honorable public service. In part his testimony is also interentially contradicted by Dr. Vander Veer, an eminent physician of Albany, and perhaps by William T. Whittemore, a reporter of the Sunday Telegram. It is said that the court and jury could not find that the confessions were made under the influence of fear produced by threats without finding that the testimony of all these men was false. Not so do I view the testimony and the question presented to us. Against the assertion of a man like Doran, the jury might with entire confidence accept the denial of any one of these men. Indeed, the jury, in this case, would be justified in rejecting the testimony of Doran even where it is not contradicted, for willful falsehood so permeates that testimony that it is wholly unreliable. Doubtless the jury might reasonably find that Doran is not only a confirmed criminal unworthy of credence but that, like other criminals who rob unarmed men at the point of a pistol, he is at heart a coward and when on trial for his life would tell any story that might be helpful. The court and jury might not, however, disregard the logical inferences that must be drawn from the undisputed testimony, nor discard common sense in considering the effect of that testimony.

The significance that should be attributed to such directions may depend upon the other circumstances and upon the reason which may have inspired the district attorney to give such unusual, and at least technically

Doubtless the police and the assistant district attorney were actuated solely by their desire to bring just retribution upon men who they felt sure were guilty of a heinous crime. If they erred, it was through excess of zeal in the performance of their public duties, but the picture of what took place in the police station at Watervliet, even as drawn from the testimony of the People’s witnesses, and I have considered no other, is not one upon which this court should look with equanimity.

We give lip service to the rule that no accused may be compelled to incriminate himself. We point with pride to the proceedings in our public court rooms where the accused is scrupulously warned of his constitutional rights and given opportunity to consult counsel before he avows his guilt. Here the accused was tried before a just and learned judge, who in all respects conducted the trial in manner which calls for admiration; but the jury was permitted to receive in evidence a confession of guilt obtained when the accused was held in custody without counsel, and without arraignment on any charge,

We are often told that the courts should not by technical rules hamper the police in their constant warfare with the enemies of society. Doran, it is urged, is a guilty wretch who should not be given a new trial because the zeal of the police and the prosecuting officers have outrun their discretion. Such considerations must be given their due weight, but on the other side of the scale in this case are more weighty considerations. No one can suppose that the Legislature would, even if it had the power, amend the law so that the police might upon suspicion hold an accused without counsel and without arraignment before a judge until they had extorted a confession. No one can suppose that the law should permit a confession if extorted by threats to be received in evidence or made the basis of a finding of guilt. The courts should not hamper the police by technical rales nor reverse a just conviction because of technical error, but the courts cannot sanction disregard of the substantial rights of an accused. If Doran is guilty he can be convicted before another jury without introducing in evidence his alleged

The judgment should be reversed and a new trial ordered.

Pound, Kellogg and O’Brien, JJ., concur with Crane, J.; Andrews, J., concurs in memorandum in which Pound, Crane, Kellogg and O’Brien, JJ., concur; Lehman, J., dissents in opinion in which Cardozo, Ch. J., concurs.

Judgment affirmed.