# The People v. . Mondon

> New York Court of Appeals · October 5, 1886 · 103 N.Y. 211

URL: https://www.frixlaw.com/law-library/cases/9867940

## Case

- **Full name:** The People of the State of New York v. . Frank Mondon
- **Court:** New York Court of Appeals
- **Decided:** October 5, 1886
- **Citations:** 103 N.Y. 211; 4 N.Y. Crim. 552; 2 N.Y. St. Rep. 713; 58 Sickels 211; 8 N.E. 496; 1886 N.Y. LEXIS 1050
- **Precedential status:** Published
- **Opinion:** Dissent by Earl
- **Judges:** Rapallo, Earl
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9867940

## Opinion text

Earl, J. (dissenting).
There was no difference of opinion m the Supreme Court and there has been none here, as to any of the questions involved upon this appeal, except as to the reception in evidence of the defendant’s statement made at the coroner’s inquest; and we all agree that this conviction should be affirmed, unless that evidence was incompetent.
The defendant was under oath when he made these statements, and under arrest without warrant, and had been informed that he was charged with the murder of Wishart; and hence the claim is made that the case of People v. McMahon, 15 N. Y. 384 , is a precise authority for the exclusion of the evidence.
In that case it appeared that the defendant was arrested by a constable, without warrant, upon suspicion of being the murderer of his wife, and was taken before the coroner who was' holding an inquest on her body; and he was there sworn-and examined as a witness; and it was held that his evidence thus given was not admissible on his trial for the murder.
But that case was criticised and distinguished in the case of People v. Teachout, ( 41 N. Y. 7 ), where it was held that statements made by the defendant under oath, at a coroner’s inquest upon the body of the person murdered, were admissible against him upon his trial for the murder, although he knew at the time he was sworn that it was suspected that the deceased was *563 poisoned, and that he himself would probably be arrested for the crime, and was informed by the coroner that the rumors implicated him and that he had a right to refuse to testify.
In both cases the prisoner was charged with the crime, and gave evidence knowing that he was so charged. In the latter case the defendant was not under arrest, but was informed before he gave 1ns evidence that he was going to be arrested for the crime. The fact that the prisoner was not under arrest does not distinguish that case from the former case. There can certainly be no difference in the evidential value of statements made under oath by one under arrest and charged with crime • and similar statements made by one charged with crime after he has been informed that he is going to be arrested.
The reasoning of all the cases on the subject shows that there can be no difference in principle or in law between such statements, and no ground for their exclusion in the one case which does not apply to the other.
The only circumstance, therefore, which distinguishes the latter case from the former is that in the latter case it appeared that the coroner, before the defendant was sworn, informed him that he was not obliged to testify unless he chose, and that the defendant said he had no objection to telling all he knew.
For aught that appears in this case, the defendant was informed, by the coroner or some one else, of his right to refuse to testify; that he perfectly understood his rights and in every sense voluntarily took the oath and made his statement The district attorney had no occasion to prove these facts, as neither his attention nor the attention of the court was called to the absence of such proof or the necessity to make it.
It does not appear how the defendant happened to come before the coroner nor what information he had as to his rights before he was sworn. When evidence of these statements was offered at the trial, the only ground of objection stated in any case was that they were immaterial. The only ground of exclusion was that the defendant had not been informed, before he was sworn, of his right to refuse to be sworn and to testify; and that ground of objection should have been specially stated, as, if it had been, it might have been obviated by proof We *564 must now assume that that ground did not exist or was waived. Such is the rule in civil cases, and it has been also applied in criminal cases. People v. Murphy, 63 N. Y. 590 .
If we could see that the evidence was of vital and controlling importance in this case, or if we entertained any doubt of the defendant’s guilt, we might be disinclined to this view of the case. But a careful reading of the evidence leaves upon our minds no reasonable doubt of his guilt; and the statements made by him before the coroner could have had neither an irn- . portant nor a controlling influence upon the minds of the jury.
: The relations between Wishart and the defendant, showing .a motive for the murder, and threats to kill him, were fully proved by other witnesses. His statements tended, if believed, ;to exculpate him; and the most material of them became important only as they were by other evidence shown to be ¡ untrue. There was much evidence of false statements made by him, when not under oath, after the disappearance of Wis- i hart, of a character similar to those made before the coroner, - and there was evidence, apparently reliable, that he confessed ; the murder.
Under such circumstances, assuming that the law remains now as it was when the cases above referred to were decided, • we see no reason for holding that any error was committed by i the reception of the statements in evidence; and for this we 'invoke the latter case as authority.
But this case is of such serious importance that we are •.unwilling to rest our decision entirely upon a ground which • might seem to be narrow and technical, and therefore we proceed further.
Radical changes have been introduced into the law of evi- ■ dence since the decision in the McMahon case. A prisoner . may testify in his own behalf, and section 395 of the Code of Criminal Procedure provides as follows: “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 is not sufficient to warrant his con *565 viction, without additional proof that the crime charged has heen committed.”
This language is plain and broad, and makes every confession competent no matter how made or how obtained, with the exceptions mentioned. The defendant’s statements were made in a judicial proceeding, and this section is ample warrant for their reception in evidence upon his trial.
Confessions of prisoners, in judicial proceedings and to ‘ private persons, may be made or obtained under such circumstances as to deprive them of much value as evidence, but they may always be proved unless excluded by the exceptions mentioned; and then their weight, under proper ins tractions from the court, must be determined by the jury.
There is nothing in the previous history or condition of the law as to confessions which limits the meaning of this section or restricts the import of its general phraseology. That law ■ was in a very unsatisfactory condition and many of its rules • rested upon no philosophical or reasonable basis. The general rale was that the confessions of a prisoner in reference to the crime for which he was put upon trial, whenever and wherever made, were admissible in evidence against him, and were the most effectual and satisfactory proofs of guilt.
To this rule, however, there were exceptions. If the confessions were obtained or induced by threats or promises, they were excluded. The threats or promises might be quite slight,. insignificant and indirect, and yet the cases are numerous where they were held sufficient to render confessions obtained by them incompetent as evidence.
" There was a difference of opinion among learned judges as to whether the threats and promises, to be effectual for the exclusion of the confessions, must have proceeded from the prosecutor or some public officer having the prisoner in custody or some authority over him, and not from a private person having no connection with the prosecution. If the confessions, however, were made after the threats or promises might be supposed to have ceased to have any influence upon the mind of the prisoner, they could be received in evidence. So, while it was necessary to the admissibility of a confession that it should. *566 have been voluntarily made, that it is that it should have been made without the appliances of hope or fear, from persons having authority, yet it was not necessary that it should have been the prisoner’s own spontaneous act. It might be obtained or induced by spiritual exhortations; by promises of secresy, even confirmed by an oath, by causing the intoxication of the prisoner; by trick, deception or artifice; by illegal arrest; by promises of some collateral benefit; and yet none of these practices made the confession incompetent or required its exclusion.
These rules were uncertain, difficult of application, and gave the courts much trouble, and the section of the Code above quoted was framed so as to furnish a-general and simple rule easily understood and certain in its application. It applies to all confessions whether made in a judicial proceeding or to private persons, and its language is just as broad, comprehensive and sweeping in reference to one class as the other. The two classes of confessions were known in the law before that section was enacted. Judicial confessions were defined to be such as were made before a magistrate or in court, in the due course of legal proceedings, and all other confessions'made to private persons were defined to be extra-judicial. 1 Greenl. Ev. %% 216, 21?.
Within the meaning of the Code, and the law as it before existed, these were confessions made in a judicial proceeding. The law as to judicial confessions was, before the Code, in as much confusion and uncertainty (and needed reformation as much) as the law in reference to extra-juducial confessions, and this may be shown by reference to a few reported cases.
In People v. Hendrickson ( 10 N. Y. 13 ) the subject of judicial confessions was much investigated and discussed. In that case the prisoner’s wife died from poisoning, and a coroner’s inquest was held to ascertain the cause of her death. The prisoner was sworn and examined as a witness at the inquest, and there made certain statements as to his movements on the night of his wife’s death and the circumstances attending it. He was subsequently indicted for her murder; and upon his trial the Statements he made at the inquest were offered in evidence *567 against him. They were objected to as inadmissible, but were held to be competent evidence, upon the ground that the prisoner had not, when he made them, been charged with the murder. But it is clear that he was suspected of the murder and knew that he was so suspected.
Judge Selden wrote a dissenting opinion, holding that the .statements were incompetent, upon the ground that such statements, made by one suspected of guilt and conscious thereof, were too unreliable to be received as evidence. The learned judge seems to have been unconscious that his reasoning would exclude all confessions of a prisoner made after being charged with the crime, and even after he was conscious that he was suspected of the crime. But one judge concurred in the view that the statements were not competent evidence.
When the McMahon case came before the same court, more than three years later, the judges comprising the court had been so far changed that only three of those remained who had taken part in the decision of the Hendrickson case; and Seldes, J., being one of these, wrote the opinion in which four of his associates concurred, and the same line of reasoning which had failed to convince in the Hendrickson case prevailed. The statements of the prisoner made at the coroner’s inquest were held incompetent, because at the time he made them he was charged with the crime. The ground of the decision was that a judicial oath, administered when the mind is agitated and disturbed by a criminal charge, may prevent free and voluntary mental action, and that thus the statements cannot berelied upon as evidence of guilt.
But what difference in reason can there be between the value of statements as evidence when made by a person charged with crime and when made by one who knows that he is suspected of firime and is conscious of guilt? Why should such statements, when made under the sanction of an oath voluntarily taken be excluded, when they would be received if made under precisely the same circumstances not upon oath?
When the Teachout case came to be decided, more than twelve years after the McMahon case, the composition of the court had been entirely changed, no one of the judges remain *568 ing who had participated in the decision of the prior cases. In. that case the prisoner was not under arrest when he made his-statements under oath before the coroner’s jury; but he was informed that he was suspected of the crime and that he would be-arrested for it, and the coroner told him that he had a right to-refuse to testify; and the statements were held competent evidence. What difference could it make with the value and reliability of the statements, as evidence, that the prisoner was. not under arrest when he made them, while he was informed that he was suspected and was to be arrested? Upon the-, reasoning of Selden, J. in both of the prior cases, it was wholly immaterial that he was informed that he had the right to refuse to testify.
In the Hendrickson case, the learned judge said: “A statement made under oath before a coroner’s jury, while the party is under arrest upon suspicion of guilt, is equally voluntary as if made as a witness in a case with which he has no connection;” and “It is certain that the statements of an accused person, made under oath, are never excluded on account of any supposed violation of the immunity of the party from self crimination.”
In the McMahon case, he said: “The statement, although" made under oath and upon a judicial examination as to the-crime, may still be admitted, if at the time it was made the-person was not himself resting under any charge, or suspicion of having committed the crime.” “ That the idea of immunity or privilege does not lie at the basis of this rule of exclusion is. proved by the fact that the evidence is equally inadmissibb although the person voluntarily consents to .be sworn.”
In the Teachout case, the reasoning of Judge Selden in the-two prior cases was emphatically repudiated; but without distinctly overruling the McMahon case the court found á distinction which was regarded as of no importance by Judge Selden.
It is, indeed, quite difficult to perceive what difference in reason or in principle can be caused by the fact that the person was informed of his privilege not to testify, a fact which most persons know and which they must all be presumed to know; and it is even more difficult to understand how the statements- *569 of a person are in their nature more trustworthy and reliable after he has been so informed than they would be without such information.
The McMahon case was, several years later, regarded by a learned judge as overruled by the Teachout case. People v. Montgomery, 18 Abb. N
But even if that judge was in error it may well be doubted whether the rule laid down in the McMahon Case survived the legislation and the public policy thereby announced, which allowed prisoners to testify in their own behalf.
As we have seen, the statements were there excluded because such statements, made under an oath voluntarily taken by a prisoner charged with crime, are in their nature too unreliable to be received as evidence. That ground of exclusion was utterly repudiated "by the legislation referred to. If the sworn statements of a person before a coroner’s jury, after he was charged with crime, were too unreliable to be received as evidence, much more would his sworn statements be unreliable, made upon his trial after indictment, when the question of his life or death was under investigation and to be immediately determined. It cannot be supposed that the legislature meant to make that evidence, which in its nature was so infirm and worthless that it would be unsafe for a jury to rely upon it as a basis for their judgment. It would be quite an absurd spectacle to see a court exclude the sworn statements of a prisoner made before a coroner’s jury, and at the same time receive his sworn statements made upon his trial for the crime.
Such was the state of the law as to judicial confessions when the section of the Code referred to was framed. The rule as finally settled, in order to make statements made by the prisoner under oath at a coroner’s inquest (after he was charged with the crime) competent evidence against him upon his subsequent trial, required that it should be shown that he was advised of his right not to be sworn before he made the statements. If not so advised his statements so made were incompetent. But if the public prosecutor believed that the person was guilty, and fully intended to arrest and indict him, he had *570 only to conceal from him his belief and intention and omit to charge him with the crime and then, although he was conscious of his own guilt and thus under the embarrassment created by such consciousness, he could examine him to any extent and procure from him, while he was unadvised and unaware of his peril, damaging statements to be used against him upon his trial. A rule so absurd in its operation is of little use for the protection of persons charged with crime, and the court should not be astute to preserve it.
It must be conceded that the law makers intended to make and did make a radical change, by the section referred to, in the law in reference to extrajudicial confessions; and it is not unreasonable to suppose that they intended an equally sweeping change in the law in reference to judicial confessions. They evidently meant to abolish all the fine distinctions which before existed, and establish a plain and simple rule; and they wrote in the section all the exceptions which they intended to preserve, and no court should interpolate more. If it had been intended that judicial confessions should not be received in evidence against the person making them, unless he had been advised of his privilege not to make them, that exception, it is fair to presume, would have been made in the section. That section, too, it may be observed, is in the line of all modern legislation upon the subject of evidence, the tendency of which is to permit all relevant and material evidence to be placed before the triers of fact, there to receive the consideration it deserves.
It cannot well be claimed that these statements were not a confession within the meaning of the section. It is true that they were not a confession of crime but rather exculpatory; a denial of the crime. But such statements have always, in all the books, been classed under the head of confessions. Whatever one says about the crime with which he is charged which tends to connect him therewith or makes evidence against him in reference thereto, whether he so intends it or not, has always been treated as a confession.
In the Hendrickson case, Judge Parker said: “The law seems to be that the rule as to confessions applies not only to direct confessions, but to every other declaration tending to *571 implicate the person in the crime charged, even though in terms it is an accusation of another or a refusal to confess.”
If the section of the Code referred only to formal or actual confessions of guilt, it would leave much the larger part of judicial statements made by prisoners entirely unprovided for.
The constitutional guarantee that “No person shall be compelled in any criminal case to be a witness against himself,” was not violated in this case. Statements of prisoners made under oath have never been excluded on that ground On the contrary, that ground of exclusion was expressly repudiated by Judge Selden in the McMahon case. The defendant had been in this country for more than two years. All persons within the jurisdiction of the State are supposed to know its laws; and in the enforcement of this rule no distinction is made between foreigners and natives. 1 Story Eg. Jur. § 111, Best Ev. 48, 452.
We must assume that he knew that it was his privilege to decline to be sworn, and that he voluntarily took the oath and made the statements. It was not claimed upon the trial that he was ignorant of his privilege, or that he was under any compulsion when he took the oath. He was therefore in no sense compelled to be a witness against himself.
The view we have taken of section 895 of the Code is sanctioned by the case of People v. McGloin ( 91 N. Y. 24 ; 1 E Y Orim. 154).
If the reasoning of Judge Selden in the Hendrickson and McMahon cases was sound, the confessions there received should have been excluded; but they were held competent evidence both at common law and under the section referred to.
We are, therefore, of opinion that no error was committed in the reception of the statements of the prisoner in evidence and that the judgment should be affirmed.
Huger, Ch. J., concurs, Miller, J., not voting.
Judgment reversed
Note.—As to confessions see People v. McGloin, 1 N. Y. Crim Rep. 105, 154; People v. McCallam, 3 Id. 189, People v. Kelly, Id, 414, People v. Jaehne, 4 Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9867940. Public record. Not legal advice.