author: Kellogg, J.

text:
    James Pendergast, Appellant, v. The Globe & Rutgers Fire Insurance Company of the City of New York, Respondent.
    Insurance (marine) — contract — policy insuring vessel “ lost or not lost” — insured may recover though vessel be lost before insurance was effected — effect of knowledge of loss by insured — complaint in action to recover on such a policy improperly dismissed where owner immediately attempted to give notice of loss.
    1. Under a contract of marine insurance expressly insuring a vessel “ lost or not lost,” the assured may have a recovery even though the vessel be lost before the contract was entered into and even though he had knowledge of the loss prior to the writing of the policy, provided his agents, negotiating the insurance, had no such knowledge and that he used diligence in communicating the fact of loss to the prospective insurer.
    2. The complaint, therefore, in an action to recover upon a contract of marine insurance covering a vessel “ lost or not lost,” is improperly dismissed, where it appears that plaintiff had chartered the vessel to another who agreed to insure it; that the charterer’s agent in another city applied to defendant for insurance and the next day, three hours after the vessel had sunk, a binder was issued; that the plaintiff did not know the name of the company from which the insurance was to be obtained and that upon being informed of the loss he made several efforts to get into telephone communication with the charterer to ascertain who had the insurance but was unable to reach him.

      Pendergast v. Globe & Rutgers Fire Ins. Co., 219 App. Div. 864, reversed.
    (Argued October 25, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 6, 1927, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court.

      Thomas C. Burke for appellant.
    The binder was a valid insurance against a prior total loss of the tug Globe. (Hooper v. Robinson, 98 U. S. 528; Snow v. Mercantile Mutual Ins. Co., 61 N. Y. 160; People v. Dimick, 107 N. Y. 13; General Int. Ins. Co. v. Ruggles, 12 Wheat. [25 U. S.] 408; 1 Phillips on Insurance, §§ 948, 949; Hallock v. Insurance Co., 26 N. J. L. 268; 27 N. J. L. 645; El Dia Ins. Co. v. Sinclair, 228 Fed. Rep. 833.) The plaintiff used due diligence in endeavoring to communicate intelligence of the loss of the tug to the New York office of her charterer. (Snow v. Mercantile Mutual Ins. Co., 61 N. Y. 160; Broad & Lackawanna Realty Co. v. Breitung, 239 N. Y. 154; Ciaramella v. Orr, 216 App. Div. 247.)

      Robert Kelly Prentice for respondent.
    Both plaintiff and his agents for procuring insurance had knowledge' that the tug was not an insurable risk before delivery of the binder; hence the acceptance of the binder and the claim thereunder is a fraud. (Goldstein v. New York Life Ins. Co., 176 App. Div. 813; 227 N. Y. 575; Clark v. Ins. Co. of N. A., 89 Maine, 26; Bentley v. Columbia Ins. Co., 17 N. Y. 421; Kerr v. Milwaukee Mechanics

      Ins. Co., 117 Fed. Rep. 442; Howard v. Albany Ins. Co., 3 Den. 301; People v. Dimick, 107 N. Y. 13; Gauntlett v. Sea Ins. Co., 127 Mich. 504; Mead v. Davison, 3 Ad. & El. 303 ; 1 Phillips on Insurance [3d ed.], 502; Merchants Ins. Co. v. Paige, 60 Ill. 448; Whitaker v. Ins. Co., 29 Barb. 312; Clement v. Phoenix Ins. Co., Fed. Cas. 2881.)
   Kellogg, J.

The plaintiff was the owner of the steam tug Globe. On the 20th .day of October, 1924, he chartered the tug to the Waterway Navigation Company through one Guidera, who represented that company at Buffalo, New York, where the plaintiff resided. The tug was then in inland waters in the vicinity of Buffalo. Guidera agreed to have the tug covered with marine insurance, and upon the following day assured the plaintiff that the insurance had been placed by the New York office of the navigation company. In point of fact the insurance had not then been written. However, on October 23, 1924, the New York office of the company did telephone B. T. Nolan Company, brokers of marine insurance, to place fire and marine insurance upon the tug. On Friday, October 24th, B. T. Nolan, of that company, applied to the defendant, at its New York office, for insurance. He was told that he must supply more information than he was able to reveal. On the following morning, Saturday, October 25, 1924, at about eleven o’clock, Nolan renewed his application at the defendant’s office. After some objection, the defendant issued a binder insuring the tug Globe, “ lost or not lost ” from noon of the previous day, October 24, 1924, for the term of one year, in the sum of $6,000. Meanwhile, on October 25th, before eight o’clock in the morning, at least three hours before the binder was issued by the defendant, the tug, while tied up at the Terminal Wharf in the Erie Basin at Buffalo, New York, had sunk to the bottom of the basin. The plaintiff was informed of the loss at about eight o’clock that morning. He did not know the name of the company in which, according to Guidera, the Waterway Navigation Company had caused the tug to be insured. Between eight o’clock and eleven o’clock that morning the plaintiff made several efforts to get into telephonic communication with the president of the navigation company in New York, to ascertain who had the insurance, but was unable to reach him.

Ordinarily, contracts of insurance are conditioned upon the existence of the subject of insurance at the time the policies are written. (Mead v. Phenix Ins. Co., 158 Mass. 124.) It is otherwise of marine insurance when the policy expressly insures a vessel “ lost or not lost.” (M’Lanahan v. Universal Ins. Co., 26 U. S. 170; Hooper v. Robinson, 98 U. S. 528; Snow v. Mercantile Mutual Ins. Co., 61 N. Y. 160.) In such cases the assured may have a recovery even though the vessel be lost before the contract was entered into. (Same cases.) Conversely, the insurer may recover a premium promised, where a vessel insured “ lost or not lost ” has safely completed the journey against the perils of which it was insured. (Bradford v. Symondson, L. R. 7 Q. B. D. 456.) Again, there may be recoveries by an insured owner, even if he had knowledge of the loss prior to the writing of the policy, provided the agents negotiating the insurance had no such knowledge. (M’Lanahan v. Universal Ins. Co.; Snow v. Mercantile Mutual Ins. Co., supra.) In the McLanahan case the owner was actually on board the vessel when it was lost at sea. A recovery upon “ a lost or not lost policy ” issued after the loss, through the procurement of an agent ignorant thereof, was there held to be permissible. However, it is incumbent upon the owner in all such cases to use diligence in communicating the fact of loss to the prospective insurer, so that the insurance may not be written, or otherwise the policies will be void because of concealment. (Same cases.)

In this case the plaintiff was not aware that the policy in question was about to be written. He had been informed and believed that insurance had been written before the loss, but was unaware of the name of the insuring company. Under the circumstances shown by the present record there was no call for him to proceed with extreme diligence. He knew of no situation which required information of loss promptly to be given in order that insurance might not be written. As the facts appear, he did all that a reasonably prudent man would have done. He made immediate attempts to telephone the charterer which, according to the plaintiff’s advices, had effected the insurance, to learn the name of the insurer, but his efforts were unavailing. Under the circumstances the complaint should not have been dismissed.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Cabdozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Judgment reversed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Randolph L. Brown, Suing in Behalf of Himself and Others, Appellant, v. Frederick A. Ward et al., Constituting the Board of Supervisors of the County of Cortland, et al., Respondents.
    Taxpayer’s action — counties — supervisors — bridges — power of board of supervisors to provide for construction of bridge — provision of Highway Law in regard thereto must be substantially complied with • — ■ tax levied for cost of constructing bridge void where proceedings leading to contract and contract itself were not in substantial compliance with statute — public officers without power to contract except as directed by statute.
    1. No power is vested in a board of supervisors to build bridges, or to ratify the acts of its committee in contracting for the erection of a bridge, except by complying substantially with the provision of section 262-a of the Highway Law which directs that the provision» of section 130 shall apply to the award, execution and fulfillment of contracts for bridge improvement by a board of supervisors. They contain plain and simple directions for the conduct of supervisors, and design that definite plans, specifications and estimates must be approved by such boards and that prospective bidders shall have reasonable access to them at a specified time and place so that the lowest bidder for a particular type of bridge may be ascertained.
    2. Where in a taxpayer’s action to have adjudged void a tax levied against a town by a board of supervisors for the cost of construction of a bridge and culvert, the uncontradicted evidence proves that for a reinforced concrete bridge, plans, specifications and estimate of expense were submitted for a steel truss bridge, that the board attempted to delegate to a committee the power to enter into a contract for the construction of undefined and unspecified bridge work, that the committee, in the absence of an estimate of expense, advertised for bids for a concrete bridge, the plans and specifications for which were to be submitted by the contractor without approval by the board of supervisors, but to be approved by the State Highway Commission, and that the committee entered into a contract for the construction of a concrete bridge and a smaller culvert without approval by the board of supervisors or without providing any reasonable basis for competition among bidders, it cannot be said that' the proceedings leading up to the contract and the contract itself were in substantial compliance with the statute. The tax was, therefore, void and its collection should be enjoined at the behest of property owners subject to a valid tax.
    3. Ratification by the board of supervisors of the committee’s acts is unavailing and a finding that all parties acted in good faith is not enough. Public officers have no power to contract, except in the manner which the statute directs, and substantial compliance therewith is requisite.

      Brown v. Ward, 218 App. Div. 643, reversed.
    (Argued October 26, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered January 13, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint.

      Frank H. Hiscock and O. U. Kellogg for appellant.
    The action of the board of supervisors in attempting to confer upon a committee of its members the power and authority, under section 262-a of the Highway Law, “ to advertise for bids and to enter into a contract in the name of the board of supervisors for a construction of such bridge work as might be necessary for the proper completion ” of the highway to be constructed was illegal, and the endeavor of the board of supervisors to cure this illegal attempt to confer powers upon the committee by subsequently ratifying its conduct was ineffectual. (Matter of Hardy v. Duffey, 101 Misc. Rep. 641; 182 App. Div. 903; Brady v. Mayor, 20 N. Y. 312; Bishop v. New York Times Co., 233 N. Y. 466.) Plaintiff is entitled to maintain this action and his complaint in that respect states a good cause of action. (Bush v. O’Brien, 164 N. Y. 205; Western New York Water Co. v. City of Buffalo, 242 N. Y. 202; Steele v. Village of Glen Park,- 193 N. Y. 348; Guenther v. Patch, 76 Misc. Rep. 649; Elmhurst v. City of New York, 213 N. Y. 87; Rumsey v. City of Buffalo, 97 N. Y. 114; County of Monroe v. City of Rochester, 154 N. Y. 570; Ellwood v. City of Rochester, 122 N. Y. 229; Scott v. Onderdonk, 14 N. Y. 1.)

      Clayton R. Lusk and Charles H. Gardner for respondents.
    There was a substantial compliance with the provisions of section 262-a of the Highway Law. (Kent Constr. Co., Inc., v. New York, 212 App. Div. 197; Fleming v. Village of Suspension Bridge, 92 N. Y. 368; People ex rel. Keene v. Queens County Supervisors, 142 N. Y. 271; Edwards v. City of Watertown, 24 Hun, 426; People ex rel. Vaughn v. Supervisors, 52 Hun, 446; 119 N. Y. 636; Kramrath v. City of Albany, 53 Hun, 206; 127 N. Y. 575; Robert v. Supervisors, 3 App. Div. 366; 158 N. Y. 673; People v. Meach, 14 Abb. Pr. [N. S.] 429; Renting v. Titusville, 175 Penn. St. 512; Crawford County v. Walter, 89 Ill. App. 7; Hitchcock v. Galveston, 96 U. S. 341.) If the board of supervisors did not have power to delegate to the highway committee the authority to receive bids and construct the bridge work specifically contained on the State plans for such highway, they cured the defect by expressly ratifying the acts of the highway committee. (Peterson v. Mayor, etc., 17 N. Y. 449; Moore v. Mayor, 73 N. Y. 238; Kramrath v. City of Albany, 127 N. Y. 575; Albany City Nat. Bank v. City of Albany, 92 N. Y. 363; Vermeule v. City of Corning, 186 App. Div. 206; 230 N. Y. 585; Squire v. Cartwright, 67 Hun, 218; People ex rel. Griffiths v. Board of Supervisors of Oneida County, 143 App. Div. 722.) A taxpayer’s action does not exist here under section 51 of the General Municipal Law. (Altschul v. Ludwig, 216 N. Y. 459; Western New York Water Co. v. City of Buffalo, 242 N. Y.' 202; Bush v. Coler, 60 App. Div. 56; 170 N. Y. 587; Ayers v. Lawrence, 59 N. Y. 192; Shoemaker v. Buffalo Steam Roller Co., 165 App. Div. 836; Kramrath v. City of Albany, 127 N. Y. 575; Moore v. Mayor, etc., 73 N. Y. 238; Cobb v. Ramsdell, 59 Hun, 627; Edwards v. Ford, 22 App. Div. 277; Lawson v. Lincoln, 86 App. Div. 217; McCord v. Lauterbach, 91 App. Div. 315.)
   O’Brien, J.

Plaintiffs, taxpayers in the town of Taylor, Cortland county, seek a judgment adjudicating as illegal and void a tax of $20,116.98 levied against the town by the board of supervisors for the cost of construction by the county of a concrete bridge across the Otselic river and for the repair of an adjacent culvert known as the Martin Wire bridge. These improvements are wholly within the town of Taylor. In the construction and in the distribution of the cost between the town and the county the board assumed to act pursuant to authority conferred upon it by the provisions of section 262-a of the Highway Law (Cons. Laws, ch. 25). The taxpayers urge that the contract for this public improvement is so fundamentally illegal that it is not susceptible of ratification by the board of supervisors.

The new findings as made by the Appellate Division and the evidence which is claimed to support them demand a brief recitation. Upon motion of the supervisor of Taylor, the board by resolution of December 26, 1923, directed the county superintendent of highways to prepare maps, plans and specifications for a bridge across the Otselic river and for the extension of the Martin Wire culvert and submit them to the board. The superintendent submitted plans and specifications for a steel truss bridge over the Otselic but none for the Martin Wire culvert. At the same time he recited from memoranda concerning an existing steel truss bridge in the town of Willet an oral estimate of $20,000 for the Otselic steel bridge and for the culvert. He arrived at this sum by allowing $17,027.50 for the large steel bridge, $1,500 or $1,600 for the culvert and $1,382.50 for plans and cleaning of channel. His report on the Otselic bridge related solely to a steel structure and in no way referred to a concrete bridge. By resolution of October 6, 1924, the board approved the plan for a steel truss bridge, similar to the one in the town of Willet, and assumed to delegate to the highway committee authority to advertise for bids and to enter into a contract in the name of the board for the construction of such bridge work as might be necessary for the proper completion of the Cincinnatus-Taylor-Pitcher Part LI Federal Aid State highway No. 8161 in the town of Taylor, in accordance with the maps, plans and specifications specifically contained on page 4 of the plans of such highway theretofore prepared by the State Commission of Highways and theretofore approved by the board of supervisors on the 25th day of April, 1923, and the 10th day of September, 1923.” The maps, plans and specifications of this highway defined the location as well as the length and breadth of a new bridge to be built over the Otselic river and the location and extension of the Martin Wire bridge, but did not describe in any way the type, material or form of construction of these proposed bridges. The resolution assuming to delegate to the highway committee the power to advertise for bids and to enter into a construction contract did not ordain whether the bridge should be constructed of steel or concrete. The committee advertised for bids for both steel and concrete, but the advertisement included the statement that plans and specifications of the steel truss bridge might be obtained from the county superintendent of highways and that plans and specifications “to be submitted by contractors ” for a reinforced concrete structure which shall have the same carrying capacity, water way clearance and depth of roadway as the steel truss bridge “ must have the approval of the department of highways of the State of New York and will be considered by the committee in making the awards.” The board never approved plans or specifications for a concrete bridge but left that function to the State Highway Commission. On October 21, 1924, the highway committee of the board of supervisors entered into a contract for the construction of a reinforced concrete bridge across the Otselic and for the lengthening of the Martin Wire bridge for the sum of $12,000 plus some additional price for the large bridge and $30 per cubic yard for lengthening the smaller one. The superintendent later entered into an oral contract for backfilling the highway at an expense of $708.

The uncontradicted evidence proves, therefore, beyond the shadow of a doubt that for a reinforced concrete bridge across the Otselic, plans, specifications and estimate of expense were submitted for a steel truss bridge, that the board attempted to delegate to a committee the power to enter into a contract for the construction of undefined and unspecified bridge work, that the committee in the absence of an estimate of expense advertised for bids for a concrete bridge the plans and specifications of which were to be submitted by the contractor without approval by the board of supervisors but to be approved by the State Highway Commission and that the committee entered into a contract for the construction of a concrete bridge and a smaller culvert without approval by the board of supervisors or without providing any reasonable basis for competition among bidders. Any new finding by the Appellate Division contrary to such evidence is wholly unsupported. Ratification by the board of the committee’s acts is unavailing, unless the board itself was authorized in the first instance to do the things performed by the committee. No power was vested in the board to build these bridges or to ratify the acts of its committee except by complying substantially with the provisions of section 262-a, Highway Law. The ultimate issue in the case is whether the proceedings leading up to the contract and the contract itself were in substantial compliance with this statute.

Section 262-a requires submission to and approval by the board of supervisors of plans, specifications and estimate of expense in relation to a particular type of bridge expressly proposed to be built. No compliance was had with this provision. Plans, specifications and estimates for a steel bridge have no relation to a concrete bridge even when the board is aware of its necessary length, breadth and location. As well submit for a stone structure when a brick one of equal dimensions is to be built. Section 262-a directs that the provisions of section 130, Highway Law, shall apply to the award, execution and fulfillment of contracts for bridge improvement by a board of supervisors. These statutory enactments have been utterly ignored. Subdivision 1 of section 130 commands that the advertisement for proposals shall state where the maps, plans, specifications and estimate may be seen. These documents so enumerated can mean nothing except documents relating to a definitely described bridge and not to some other bridge casually mentioned. No attention was paid to this law. The notice stated that such plans and specifications for a concrete bridge. as might be approved by the State Highway Commission could be submitted by contractors, thus admitting on its face that none had been approved by the board of supervisors. Subdivision 2 of the same section requires the bidder to specify the gross sum as well as the amount to be charged for each item specified in the estimate. There was no estimate for a concrete bridge and so bidders could not obey this law. Subdivision 3 of section 130 says that the contract shall be awarded to the lowest responsible bidder and that he shall be deemed to be the one who specifically states the lowest gross sum, including all the items specified in the estimate. No bidder could comply with this requirement because the board had never taken any action respecting a concrete bridge. The lowest bidder is intended to be selected on the basis of definite plans and specifications. Identity of the lowest bidder might not, therefore, be ascertained and we cannot discover any evidence tending to support a finding that the contract was economical. It may or may not have been reasonable in price. How can any one know? The fact that the board of supervisors had at one time approved the plans of the State Highway Commission for the highway upon which these bridges have been built and that the State Commission provided for bridges at the points where they have been built and that pamphlets issued by it described generally the requirements for steel bridges and concrete bridges will not help to sustain this judgment. We cannot disregard the obvious intent of sections 262-a and 130 of the Highway Law. They contain plain and simple directions for the conduct of supervisors. They design that definite plans, specifications and estimates must be approved by such boards and that prospective bidders shall have reasonable access to them at a specified time and place so that the lowest bidder for a particular type of bridge may be ascertained. The courts below have found as a fact that all parties acted in good faith. This is not enough. Public officers have no power to contract except in the manner which the statute directs. Courts ought not to insist in every instance upon literal obedience to the law. Substantial compliance will be sufficient. Here we cannot avoid perceiving the most patent disregard of simple and necessary statutory requirements.

Appellants have argued also that the apportionment of the expense at the ratio of ninety-nine as to the town to one as to the county' is so inequitable as to require correction. Discussion of this question is unnecessary in view of our decision that the contract is invalid. Since the expenses which form foundation for the tax were incurred in violation of law, the tax is void and its collection must be enjoined at the behest of property owner's subject to a valid tax. The Legislature might in the first instance have authorized the supervisors of Cortland county to build these bridges as they did build them. It could have imposed any part of the expense upon the county or any part upon the town. The power of dispensation still resides where it originally existed. We cannot validate the tax.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment accordingly.


author: Crane, J. Andrews, J. Lehman, J.

text:
    The People of the State of New York, Respondent, v. Charles J. Doran, Appellant.
    Crimes — murder in first degree — trial — challenges — sufficiency of evidence to warrant conviction — confessions — preliminary question for trial court as to admissibility — fair question of fact as to whether confession is voluntary may be left to jury — trial court not justified in taking issue of fact as to voluntary confession from jury where evidence that it was voluntary is strong and convincing — exercise of discretion by trial judge in denying separate • trials not interfered with on appeal, unless abused — mere fact that separate confessions had been made did not require granting of separate trials — several defendants tried together must unite in peremptory challenges — statute gives to all defendants tried jointly for murder in first degree but thirty peremptory challenges.
    1. Upon review of the record of the trial of an indictment charging the defendant with the crime of murder in the first degree, held, the evidence to be sufficient to sustain a verdict of conviction.
    2. Where upon trial of such an indictment, reception of an alleged confession in evidence is objected to on the ground that it was procured by force and fear, the preliminary question is addressed to the trial judge. 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. When there is a conflict of evidence as to whether the 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.
    2. Upon a review of the testimony offered by the prosecution and by the defense upon the question of whether or not a confession of murder was voluntary or was the outcome of fear and violence, held, that a fair question of fact was presented which it was the duty of the jury, under proper instructions, and not of the court, to determine.
    3. The facts that the police authorities did not immediately arraign the defendant after his arrest, that he was taken to another city than that in which the crime was committed, though within the same county, to be questioned by the authorities, and that a police officer admitted that while questioning defendant he had a boxing glove in his hand, though he denied that he ever struck or threatened to strike the defendant, together with testimony of defendant that he had been beaten by the police, may have created an issue of fact, but where very strong and convincing evidence showed defendant’s testimony to be false and the confession to have been voluntarily made, the trial court would not have been justified in excluding the admission or of taking the issue of a voluntary confession from the jury.
    4. The defendant and another having been jointly indicted, the exercise of discretion by the trial judge, under section 391 of the Code of Criminal Procedure, in denying a demand for separate trials, will not be interfered with by this court unless there has been an abuse of discretion. The fact that each had made a confession which would naturally be offered in evidence against him is not sufficient, in and of itself, to require the granting of separate trials.
    5. Under section 360 of the Code of Criminal Procedure, providing that “ when several defendants are tried together, they cannot sever their challenges but must join therein,” a ruling that the defendants must unite in their peremptory challenges is proper. The plain meaning of the words used gives to all the defendants tried together for murder in the first degree only thirty peremptory challenges as if there were but one defendant.
    (Argued October 11, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Supreme Court, rendered May 9, 1927, at a Trial Term for the county of Albany upon a verdict convicting the defendant of the crime of murder 'in the first degree.

      Ransom H. Gillett for appellant.
    The defendant was entitled to a separate trial. (Code Crim. Pro. ’§ 391.) Defendant was rightfully entitled to thirty peremptory challenges and it was error to deny him that right. (Code Crim. Pro. § 373; People v. N. Y. S. R. R. Co., 29 N. Y. 418; People v. Keating, 16 N. Y. Supp. 748; People v. Lambia, 140 N. Y. 87; Commonwealth v. Evans, 212 Penn. St. 369.) It was reversible error to admit in evidence sworn statements of defendant Harrington. (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; People v. Ferola, 215 N. Y. 289.) The People failed to prove the guilt of the defendant Doran beyond a reasonable doubt. (Brown v. Pierce, 74 U. S. 205.)

      Charles J. Herrick, District Attorney, for respondent.
    The denial of the motion for a separate trial was not reversible error. (Code Crim. Pro. §§ 292, 391; Joyce on Indictments, ch. 28; Young v. The King, 3 Term Rep. 106; Rex v. Noble, 15 Howell’s S. T. 731; 9 Harg. S. T. 1; People v. Howell, 4 Johns. 300; People v. Vermilyea, 7 Cow. 369; Ormsby v. People, 2 Thomp. & Cook, 157; Middleton v. Whitridge, 213 N. Y. 499; Smith v. Western Pac. Ry. Co., 203 N. Y. 499; People v. Dunn, 157 N. Y. 528; Stokes v. People, 53 N. Y. 164.) The limitation of thirty peremptory challenges to the defendants jointly was not reversible error. (People v. Thayers, 1 Park. Cr. Rep. 596.) The Legislature has the power to determine the number of peremptory challenges and the manner in which they shall be exercised. (Cancemi v. People, 18 N. Y. 128; Hayes v. Missouri, 120 U. S. 68; People v. Dunn, 157 N. Y. 528; Walter v. People, 32 N. Y. 147; People v. Keating, 61 Hun, 260.) The objections that the confessions of Harrington should not have been received in evidence because Harrington was being detained under illegal arrest and his confessions were extorted from him by violence and by a promise of immunity present no ground for reversal. (People v. Garfalo, 207 N. Y. 141; People v. Rogers, 192 N. Y. 350; People v. Giro, 197 N. Y. 152; People v. Ferola, 215 N. Y. 291; People v. Randazzio, 194 N. Y. 147; People v. Cascia, 191 App. Div. 376, Kelly v. People, 55 N. Y. 565; People v. Trybus, 219 N. Y. 18; People v. McGloin, 91 N. Y. 241.)
   Crane, J.

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.

Doran swore on the trial that he was twenty-three years of age, unmarried and a resident of Albany; that he had been and was a taxi driver, a friend and pal of another taxi driver named George Many, and of a man named Floyd Damp. These three had made it a business, so he testifies, of holding up and robbing citizens of Albany. No better description of him can be given than he gave of himself in his own words on direct examination by his own counsel. It was about the fourth day I was working there, the first week I worked (at the Cadillac Taxi) that we went out on a holdup * * * why Slim, Duke, Damp and Many and myself went out on different holdups several times. Damp had a Buick car with him.” Even after the murder on the night of November 6, 1926, he testifies: Q. And did you continue that practice of driving cars for them? A. Why yes, I drove on a few holdups since.” One of these holdups, so he tells us in his testimony on the stand, was to be the place on New Scotland avenue. Just prior to the night of November 6, he drove with the others to look the place over and hold it up, but at the time there were too many people about to commit the crime. They separated, making an appointment for Saturday night, November 6th, the night of the holdup and 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 parked Ms car, followed to see what would happen. The 32-calibre pistol had been taken by Doran and an automatic gun had been given by Doran to Harrmgton. TMs automatic had been borrowed from Many. WMle the two men were in Jackson’s place, Damp, who was on the outside near the door, heard a shot, and Doran and Harrington ran out. All tMee got in the Buick car and drove off. Doran said to him: “ Step on it Md, I had to shoot him.” George Many testified that on the next Mght, November 7, he met Doran on the streets of Albany and asked him why he had shot Jackson, and Doran said that he had to do it, as Jackson was reacMng for a gun. He further swore: And I asked Doran how much he got and Doran said eighty dollars. I said: ‘ It was worth eighty thousand.’ I asked Doran if there was anybody in the store at the time he robbed Jackson. Doran said a Md came in. Doran said he made the Md lie down on the floor. Jackson reached for a gun wMch laid on the counter. ‘ I shot Jackson and ran out. ’ I asked Doran if he thought the Md would recogmze him. Doran said: ‘ I do not think so; I had my collar way up and my cap well pulled down.’ ”

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,” but Doran made no reply. Doran on the stand admits the substance of this conversation with Hall.

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 to deny his confession and to prove an alibi. The alibi consisted of the defendant’s test mony that at the time of the shooting he was' in a movie with his sweetheart, one Lucille Davis, a senior in the State College for Teachers. He attempted to support the alibi by her testimony, but she proved to be a doubtful witness. She admitted that she bed to Dr. Brubacher, the president of the State College for Teachers, and Dean Pierce, the head of the Women’s College, in telling them that she was married to Doran. The doctor also denies that she ever told him that she was with Doran on the night of the murder. She had testified that while she had never told the police or any one in authority of Doran being at the movies with her, yet she had told it to Dr. Brubacher. This, I say, he denies.

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 he had received from the police officers. Numerous witnesses, hereafter referred to, contradicted him and showed that the confession was made both to the officers and to the assistant district attorney voluntarily, and after Doran had been confronted both by Harrington and by Damp, who had confessed.

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 voluntary statement of the defendant. If not, they must disregard the confession and throw it out as no-evidence.

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).

By sections 419 and 420 of our Code of Criminal Procedure questions of fact are to be decided by the jury, and the court if requested must inform the jury that they are the exclusive judges of all questions of fact.

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 direction of the assistant district attorney, John T. Delaney, who had charge of the case. Much point is made of the fact that these men were taken from Albany to Watervliet to be questioned by the authorities. Mr. Delaney swears that it was done according to his instructions to the police. He was the district attorney for the county, not for the city of Albany alone. Watervliet is within the county. He swears that he instructed the police officer, Peacock, to take these defendants out to Watervliet. When he attempted to state why he gave these instructions, the testimony was excluded on the objection of the defendant’s counsel. He did not want the reason, although he now insists that the reason was an improper one. A reason may perhaps be found which explains if it does not justify. We all know the effects of gang psychology. Men are brave and falsely heroic when surrounded by the atmosphere of their gang and criminal associates. There is pride in crime as well as pride in virtue, and many a criminal, as we well know, takes pride in posing as a hero in the eyes and under the influence of his companions. When left alone or removed from the familiar atmosphere of such surroundings, the heroic does not appear quite so glowing, and the truth begins to demand utterance. No doubt the district attorney considered that these men would talk more freely in Watervliet than in Albany.

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 in that condition. He did not know what he was saying.

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 him. Within a few days after the 20th, the night of the confession, he was examined by Dr. Vander Veer. Doran swears that he told Dr. Vander Veer that his stomach was sore from the beating he had received. Dr. Vander Veer flatly contradicts him. He found no marks or indications of violence whatever on the defendant. Dr. Vander Veer swears the defendant said nothing to him about having been beaten, and that the tenderness in his stomach was due to disease.

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.

Fourth. In his confession Doran had told about Scheuer and Hall and his meeting with them on or about the night of the murder. From this confession the police got Scheuer and Hall, who would not tell the police about the talk with Doran until they were brought to see Doran and he advised Scheuer to tell.

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 that at one time while talking to Doran in the gymnasium he had a boxing glove on his hand. For this reason it is said Doran must be believed and the confession thrown out. Peacock himself frankly tells of the incident. He denies, however, that he ever struck or threatened to strike Doran. This surely was a foolish thing for Peacock to do, but it was to be considered by the jury with all the other testimony in determining the truth or falsity of Doran’s statement about the use of violence. It, together with his testimony, may have created an issue of fact, but it would not have justified the trial court in excluding the admission or of taking the issue of a voluntary confession from the jury. (People v. Trybus, 219 N. Y. 18, p. 22.)

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.)

The defendant and Harrington were jointly indicted and were jointly tried. They had demanded separate trials, but the judge, exercising the discretion given to him by section 391 of the Code of Criminal Procedure, as amended by the Laws of 1926, chapter 461, decided that they should be tried together. Prior to this amendment, the defendants charged with a felony were to have separate trials if they so demanded; it was their right. The common law had been that where two or more defendants were jointly indicted they were, to be tried jointly or separately in the discretion of the court. (People v. Vermilyea, 7 Cowen, 108; Rex v. Noble, 15 Howell’s St. Trials, 731; U. S. v. Marchant & Colson, 25 U. S. 480.) The Revised Statutes in 1829 (2 R. S. [1st ed. 1829] pt. IV, ch. 2) changed the common-law rule by providing that when two or more persons shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately. This remained the law through the Revised Statutes and the Code of Criminal Procedure (Laws of 1881, chap. 504, sect. 391) until the amendment of July 1, 1926. Section 391 now reads: Defendants, jointly indicted, may be tried separately or jointly in the discretion of the court.”

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 been tried separately is that each had made a confession and that the confession would naturally be offered in evidence as against the person confessing. This in and of itself is not sufficient to make out an abuse of discretion in denying separate trials. The judge in this case was very careful in all his rulings, and in his charge to the jury to guard the rights of each defendant and to direct that the confession of the one was not evidence against the other. Besides, how far these defendants would go, if at all, in denying their confessions was not known until the trial was under progress. The mere fact that confessions had been made did not require the granting of separate trials. (2 Bishop’s New Criminal Procedure, sects. 1018, 1019; Wharton’s Crim. Procedure [10th ed.], vol. 1, sects. 360, 361; People v. Hotz, 261 Ill. 239; Ball v. U. S., 163 U. S. 662, p. 672; Emery v. State, 78 N. W. Rep. [Wis.] 145.) There was here no question of antogonistic defenses as the testimony of Harrington at the trial was in behalf of and not opposed to the testimony of Doran himself. We find here no abuse of discretion.

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 challenge for cause. The jury was obtained by the defendants uniting and exercising only sixteen peremptory challenges, so that there is in fact no ruling to review. (People v. Larubia, 140 N. Y. 87.)

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. This was the rule applied in civil cases under similar wording. (Downey v. Finucane, 205 N. Y. 251, 265.) This is also the method followed under similar statutes in State v. Rachman (68 N. J. Law, 120); Hamlin v. State (67 Md. 333); U. S. v. Hall (44 Fed. Rep. 883); State v. Wolf (112 Iowa, 458); State v. Dipley (242 Mo. 461). (See the cases fully reviewed in Am. & Eng. Anno. Cases [Vol. 31, 1914A, p. 860].)

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.

Andrews, J.

(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 hold up Jackson’s store, but gave up the idea because a number of people were present, and he also admits that he and his associates planned the robbery on the night it occurred, but says that he failed to join them. His alibi was corroborated by the testimony of his fiancee, but her credibility was much weakened on cross-examination.

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.

So the ultimate matter for our decision is whether a finding that this confession was freely made would be against the weight of the evidence. On the whole, we do not think so. There are suspicious circumstances connected with the examination by the police and the district attorney. We have often been disturbed by charges of force used in murder cases to obtain confessions. While on the one hand such charges have become a standardized defense, on the other at times there may have been a basis behind them. We certainly do not wish to revert to the rack and thumbscrew. If we are satisfied that confessions have been improperly obtained, we should not hesitate to reverse even if the guilt of the accused otherwise seems clear, and we should speak in no uncertain terms in rebuke of such proceedings. The difficulty is that it seldom happens that we can say with any degree of certainty that the charges made by the defendant are satisfactorily proved. That is the trouble in the case before us. Judge Crane has pointed out the evidence for the People, tending to show that Doran is lying. There is so much of it that we cannot reject it. Therefore, coming to the conclusion that the trial judge should not have excluded the confession but should have submitted it to the jury as he did and concurring as we do in the prevailing opinion we must affirm this judgment.

Lehman, J.

(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 three men had participated in the murder on November 6th, 1926, of Raymond E. Jackson.

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 a kind of gymnasium. It contained athletic paraphernalia, including boxing gloves. Harrington and Peacock were alone in the room for five minutes. During those five minutes Harrington was induced to abandon his previous denials and to make a statement to Mr. Delaney in which he admitted that Damp, Doran and he had joined together in robbing Jackson, and were guilty of murder. Only Harrington and Peacock know what was said or done during the five minutes they were alone in the room in the Watervliet police station. Their testimony • on the witness stand is wide apart. We are not called upon to decide between them. In spite of Harrington’s confession of guilt which was admitted in evidence, the jury has acquitted Harrington.

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? A. That is it. Q. And you don’t know what happened to those fellows in that room, of course? A. No.” When the police had finished “ doing their work ” Doran made a statement to Mr. Delaney confessing that he had killed Jackson.

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 sense dictate that from the undisputed facts the contrary inference must be drawn, or allow the jury to pass upon a question of fact which is illusory and unsubstantial. In this case I believe that such error clearly exists. In my brief statement of facts I have tried to exclude all facts which are disputed or from which conflicting inferences might be drawn.

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.

However depraved Doran may be, he yet is entitled, when charged with murder, to a fair trial conducted in accordance with those safeguards and guaranties which by law and tradition are regarded as necessary for the protection of the accused. The police take this man in custody without warrant. For over a week they hold him without formal charge against him and without arraignment before a magistrate. This court has pointed out that the practice of detectives to take in custody and hold in durance persons merely suspected of crime in order to obtain statements from them before formal complaint and arraignment, and before they can see friends and counsel, is without legal sanction.” Though such circumstances do not per se make the reception of the statements in evidence illegal as matter of law, they are properly to be considered by the jury in determining the voluntariness of the statements.” (People v. Trybus, 219 N. Y. 18.) The records in many other cases that have been reviewed by us since that case have shown us that the police have often disregarded the admonition of the court and disregarded the express provisions of section 165 of the Code of Criminal Procedure. In this case the police officers admit that they knew that they were acting without right. They then, at the direction of the assistant district attorney, take these men to the police station in Watervliet. Certainly no claim can be made that the district attorney may lawfully direct the police of one city to take men held in custody without warrants, against whom no formal charge was then pending, to another city in the same county. That surely is a circumstance which may at least be considered when other circumstances tend to show that a confession there made was extorted by fear produced by threats.

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 unlawful directions. The assistant district attorney was precluded upon objection by defendant’s counsel from testifying to the operation of his mind. He was not asked for facts upon which an inference of the reason for the direction might with some confidence be based. Even so, Judge Crane has drawn an inference which he deems sound and acceptable. I shall not attempt to demonstrate that such inference is without reasonable basis. Whatever may have been the reason why Doran and Harrington were held in Albany and removed to Watervliet before they were taken before a magistrate, the fact remains that in a cell in the police station in Watervliet the police did their work ” and induced these men to make a statement of their own guilt of murder to an assistant district attorney waiting through the night to take such a statement after the police had successfully finished their work.

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, cowering in a cell in the police station where inducement to avow guilt was afforded by a police officer wearing a boxing glove, and we are asked to assume that there were no threats and no violence because the defendants, while still confined in the same manner, made no complaint to a physician and to a reporter who questioned them thereafter in the presence of one of the police officers. I may assume that the entire testimony of actual violence given by these defendants is untrue. I am willing to draw every reasonable inference against the accused, but the evidence which I have set forth reasonably allows, in my opinion, only the inference that the confession was produced by fear induced by threats implied if not expressed, and that this fear continued to operate during the succeeding days when the police held the accused in custody t without taking them before a magistrate as required by law.

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 confession. The courts may not approve the punishment even of the guilty, if guilt is established, by means which are destructive of the fundamental rights of the accused. We have long ago abolished the rack and thumbscrew as a means of extorting confession; the courts cannot sanction the introduction of the boxing glove in their place.

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.