The opinion
Hogan, J.,
(dissenting.) The statute under consideration requires a person operating a motor vehicle, knowing that injury has been done to a person due to the
culpability
of the operator, to stop and give his name and residence, including street and street number and operator’s license number to the injured party, or to a police officer, or in the absence of a police officer to make a report to the nearest police station or judicial officer. A failure to comply with the statute is made a felony.
The indictment demurred to alleges that the defendant while operating a motor vehicle did run into and strike a carriage in
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which two ladies were riding, which said running into and striking was due to the
culpability
of the defendant, and which resulted in the death of one of the ladies and serious injuries to the second lady. A second count of the indictment states the same facts except that the running into and striking was an accident.
If the charge alleged in the first count of the indictment were established the defendant might be convicted of a homicide (Penal Law, section 1059), and he would also be'subject to indictment and conviction for a felony for the failure to furnish evidence which might tend to connect or identify him with the homicide by the statute here considered.
From the prevailing opinion I quote the following language,, “undoubtedly it (the statute) does require him (the operator) to make known a fact which will be a link in the chain of evidence to convict him of a crime, if in fact he has been guilty of any.”
For that reason stated, it is my judgment that the statute under consideration is in conflict with section 6 of article 1 of the Constitution, which provides that “ no person shall be compelled in any criminal case to be a witness against himself.”
In People ex rel. Lewisohn v. O’Brien ( 176 N. Y. 253, 264, 265 ) Judge Edward Bartlett, writing, quotes the language of Chief Justice Marshall in the Circuit Court of the United .States for the District of Virginia (June, 1807) in
Burr’s Trial
( 1 Burr’s Trial, 244 ), on the question whether a witness was privileged not to accuse himself, as follows:
“ If the question be of such a description, that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say, upon his oath, that his answer would criminate himself, the court can demand no other testimony of the fact. * * * According to their statement, (cotmsel for the United States) a witness can never refuse to answer
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any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony, which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule, that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself; and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing; but, all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares, that no man is compellable to accuse himself, would most obviously be infringed, by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any individual, the court can never know. It would seem then, that the court ought never to compel a witness to give an answer, which discloses a fact that would form a necessary and essential part of a crime, which is punishable by the laws.”
Judge Bartlett continued: “A clearer and more cogent statement of the rule it would be difficult to find.” This language adopted by this court would seem to cover the case at bar. The principle therein laid down it seems to me has been upheld in other cases. (People ex rel. Taylor v. Forbes, 143 N. Y. 219 ; Counselman v. Hitchcock, 142 U. S. 547 ; People v. Sharp, 107 N. Y. 427 , 5 N. Y. Crim. 569; People ex rel. Ferguson v. Reardon, 197 N. Y. 236 .)
While the defendant in the case at bar might waive a constitutional provision, and incriminate himself, the legislature is powerless to enact a law which will require him to waive such
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a provision involving his personal liberty as a condition precedent to operating a motor vehicle upon the highway. While the conduct of an operator of a vehicle, in the failure to stop and render aid to an injured party, is to be deplored, the remedy here sought to correct the evil is an infringement upon the rights of individuals protected by the Constitution. Such rights it is the duty of courts to preserve, though the legislation may seem desirable to meet certain cases. (Wright v. Hart, 182 N. Y. 330, 333 ; Matter of Sherrill v. O’Brien, 188 N. Y. 185, 198 ; Ives v. South Buffalo Railway Co., 201 N. Y. 271 .)
The judgment should be affirmed.
Werner, Willard Bartlett, Hiscock, Chase and Collin, JJ., concur with Cullen, Ch. J., Hogan, J., reads dissenting opinion.
Judgment accordingly.