People v. Bowman

Upon the trial of the defendant upon an indictment charging him with having on the 9th day of July, 1912, offered to one of the supervisors of Niagara county a sum of money with intent to influence his vote upon the question of the selection of an architect for the construction of a county building then pending before such board of supervisors, the district attorney called many witnesses to prove that at a meeting of such board on the 5th day of September, 1912, and while such board was in executive session, Supervisor Krueger stated that the defendant, on the 9th day of July, 1912, had offered him upwards of $500 to vote for a certain architect, whereupon a supervisor asked defendant if he had heard the charges made by Supervisor Krueger, and that the defendant replied that he had heard the charges; that,he was then asked whether they were true, and the defendant replied to the effect that he had had the conversation with Supervisor Krueger on July 9, 1912, as stated by Supervisor Krueger, but that there was nothing to the talk; that it did not amount to anything; and other statements of defendant relative to his alleged conversation with Supervisor Krueger on July 9, 1912. All of the testimony as to the statements of the defendant on September 5, 1912, at the meeting of the board of supervisors, was seasonably objected to by the defendant upon the ground that it was incompetent, privileged, that they were given and made by defendant under compulsion, that such statements were testimony given by defendant upon the investigation or proceeding of the board to ascertain whether bribery had been committed, and that no criminal prosecution could be founded thereon, and that defendant by giving such testimony had thereby been granted immunity from prosecution. These objections were all overruled, and evidence of such statements received, to which defendant excepted. This application for a certificate admitting defendant to bail pending an appeal is made upon the ground that the admission of the testimony referred to over defendant’s objection presents such a prejudicial error that there is a reasonable doubt as to whether the conviction should stand.

The evidence was received upon the theory that the statement of the defendant was an admission of certain facts. Its admissibility was attacked upon two grounds: First, that it was a confession, and its receipt in evidence is prohibited by section 395 of the Criminal Code, for the reason that it was made under the influence of fear produced by circumstances equivalent to threats; and, second, that the statement was testimony given under compulsion during an investigation by the board of supervisors of the subject of bribery, and that the giving of such testimony granted immunity to defendant under section 381 of the Penal Daw (Consol. Daws 1909, c. 40).

[1] Treating the statement as a confession, its admissibility is to be determined by the inquiry: Was it a voluntary confession, or was

[2] To entitle defendant to the immunity provided for by section 381 of the Penal Law, the defendant must have been compelled to testify upon a hearing, proceeding, or investigation by the board of supervisors. While it is true that such board has authority, -under section 27 of the County Law (Consol. Laws 1909, c. 11), to examine any officer of the county or town in relation to the discharge of his official duties, and compel by subpoena the attendance of such officer to so testify, yet it cannot be said that defendant was compelled to testify and be a witness against himself. He was not compelled to make the statement. He did not testify. It is only testimony so given that must not be used against a defendant. It is the testimony that has been obtained under compulsion that must be rejected. People v. Sharp, 107 N. Y. 427 , 14 N. E. 319 , 1 Am. St. Rep. 851 . It is not enough that the statement might have been obtained under compulsion upon oath, and then become testimony. The question is: Was it so obtained ? It cannot be claimed that the defendant was compelled to testify in answer to the inquiries propounded to him. In fact, he did not testify. No compulsion was exercised in the slightest degree. It is only where a person has been compelled ,tp give testimony damaging to himself that such testimony must be excluded. People ex rel., etc., v. Davy, 105 App. Div. 603 , 94 N. Y. Supp. 1037 ; People v. Kennedy, 159 N. Y. 346 , 54 N. E. 51 , 70 Am. St. Rep. 557 ; People v. Chapleau, 121 N. Y. 266 , 24 N. E. 469 ; People v. Mondon, 103 N. Y. 211 , 8 N. E. 496 , 57 Am. Rep. 709 ; Teach-out v. People, 41 N. Y. 7 ; People v. McMahon, 15 N. Y. 384 ; Hendrickson v. People, 10 N. Y. 13 , 61 Am. Dec. 721 .

These conclusions make it impossible to certify that there is a reasonable doubt whether the conviction should stand, and the application is denied.