author: Lewis, J. Rippey, J.

text:
    Pocket Books, Inc., Respondent, v. Joseph Meyers et al., Doing Business under the Firm Name of Avon Pocket-Size Books, et al., Appellants.
    Reargued November 29, 1943;
    decided January 20, 1944.

      Joseph M. Proskauer, J. Alvin Van Bergh and Louis P. Eisner for appellants.
    An injunction was improperly granted. (Atlas Mfg. Co. v. Street & Smith, 204 F. 398; Kipling v. Putnam’s Sons, 120 P. 631; Merriam v. Famous Shoe & Clothing Co., 47 P. 411; Merriam v. Texas Siftings Pud. Co., 49 P. 944; Merriam Co. v. Syndicate Co., 207 F. 515, 237 TJ. S. 618; Hebrew Pub. Co. v. Scharfstein, 288 N. Y. 374; Gotham Music Service v. D. & II. Music Pub. Co., 259 N. Y. 86; Diamond Expansion Bolt Co. v. U. S. Expansion Bolt Co., 177 App. Div. 554; Street & Smith Pub. Inc., v. Phantom Detective, Inc., 148 Mise. 897; McGraw-Hill Pub. Co. v. American Aviation Associates, Inc., 117 P. 2d 293; Oxford Book Co. v. College Entrance Book Co., 98 P. 2d 688; Munro v. Tousey, 129 N. Y. 38; Stokes v. Allen, 56 Hun 526.)

      Harold B. Medina, Douglas M. Black, Edward K. Hanlon and John W. Jordan for respondent.
    All of tbe essential elements, requisite to the granting of injunctive relief, were proven. (Fisher v. Star Co., 231 N. T. 414; Fischer v. Blank, 138 N. Y. 244; Day v. Webster, 23 App. Div. 601; Eastern Constr. Co. v. Eastern Engineering Co., 246 N. Y. 459; Hebrew Pub. Co. v. Scharfstein, 288 N. Y. 374; Maimer, Inc., v. Cruberth, 237 App. Div. 89, 262 N. Y. 484; Brillo Mfg. Co. v. Levine, 236 App. Div. 488; Long’s Hat Stores Corf, v .Long’s Clothes, Inc., 224 App. Div. 497; Burro%o v. Marcean, 124 App. Div. 665; Beckitt S Sons v. Kellogg, 28 App. Div. 111.)
   Lewis, J.

The plaintiff seeks injunctive relief to restrain alleged unfair competition by the defendants.

Since 1939 the plaintiff has published and sold more than 16,000,000 unabridged reprints of a wide variety of literary works. It ascribes its success to the peculiar styling or format of its reprints, their convenient pocket size, their low purchase price of twenty-five cents per copy, and other features which have met with favor from the buying public. The grievance now asserted by the plaintiff is that the defendants, in alleged disregard of the plaintiff’s rights and in an effort to induce the public to purchase reprints published by them in place of those published by the plaintiff, and with”intent deceptively to palm off their books upon the purchasing public as and for the plaintiff’s books, have published and sold reprints which simulate the plaintiff’s books. The plaintiff charges that the defendants’ acts amount to unfair competition.

In the circumstances shown by' this record does the alleged simulation of which the plaintiff complains constitute actionable wrong by the' defendants which warrants injunctive relief?

That question was resolved in favor of the defendants at Special Term where the plaintiff’s complaint was dismissed on the merits. At the Appellate Division the judgment was reversed on the law and facts, one justice dissenting, and certain findings of fact and conclusions of law made by Special Term were reversed and new findings made.

The judgment of reversal by the Appellate Division contained the following injunctive provisions: “ It is further hereby Ordered and Adjudged that the defendants and their, officers, employees and agents be and they hereby are restrained forever from directly or indirectly manufacturing, publishing, handling, distributing, selling or offering or advertising for sale, any books measuring approximately 6½ x 4 5/16 inches, and being so compact in size as to fit into the pocket of a coat or into a woman’s pocketbook, which have on the front cover the words ‘ Pocket ’ or ‘ Pocket Book ’ or * Pocket Books ’ alone or in combination with any other word or words, and which combine all or any number of the following elements: Lamination of cover, coloring of edges in reddish or any kindred tinge, printing a bleed border on the back cover in yellow, orange or any kindred tinge, and from publishing or selling any books of approximately such size without prominently displaying on the front cover thereof the words ‘ An Avon Book ’ or £ Avon Book Co.’, or Avon Book ’, o.r 1 Avon ’; * * ⅜.”

We agree with that portion of the opinion Per Curiam by the Appellate Division (265 App. Div. 17) which expresses the view that the plaintiff can claim no copyright or monopoly with respect to the use of the word “ pocket ” when used descriptively; nor to the size, coloring, lamination of cover, bleed ” border, or other elements which as a whole constitute the format of its reprints. We are also in accord with the statement that imitation in manufacture of any one of those elements, standing alone, would not afford adequate grounds for injunctive relief. But in stating the basis for the judgment which we now review the opinion continues * ⅜ ⅜ when all, or a number of these elements are so combined by the imitator that the casual intending purchaser is likely to be deceived and led to believe the goods are those of the plaintiff, to plaintiff’s damage, it is within the province of equity to interfere.” (265 App. Div. 17, 18.)

There can be no doubt that even though there may be an absolute right in the defendants to use the several elements employed by the plaintiff to produce its format, the defendants have no right to engage in the deception of passing off their own product for that of the plaintiff. In the present case, however, where we may review the facts found by the Appellate Division (State Const., art. 6, § 7; Civ. Prac. Act. § 605; Harrington v. Harrington, 290 N. Y. 126, 130), we think the weight of evidence establishes that the defendants exercised reasonable care to avoid such deception and to inform the public of the source of the twelve reprints they have published and offered for sale. The legend “ AVON pocket-size BOOKS ”, printed in bold black type on a light field, appears in several places on the cover of each reprint published by the defendants. It is displayed on the “ back bone ” or binding edge of the book, in some instances on the front cover and in each instance on the back cover. It appears also on the title page of each book and repeatedly on pages within the cover which carry advertising matter designed to promote the sale of the defendants ’ reprints. In addition the defendants have caused to be printed cm the back cover of each reprint, immediately above the legend “ AVON pocket-size BOOKS ”, an oval medallion x 1" — which portrays a bust of Shakespeare. This medallion, which has been adopted by the defendants, as a hall-mark and has been used by them consistently to identify their product, is readily distinguished from the plaintiff’s slightly smaller hall-mark — a bespectacled kangaroo reading a book — which is printed on the cover of its reprints for a like purpose.

In the absence of proof that the plaintiff has acquired the exclusive proprietary right to employ in the design of its format the descriptive word ‘ pocket ’ ’, the coloring and lamination of the cover, the ‘ ‘ bleed ’ ’ border and the other features, including the low price, which concededly have been factors in the success of plaintiff’s reprints, the defendants had the right in the publication and sale o'f their own reprints to use those elements, provided they adopted means adequately to identify their books and to inform the public that they were the defendants’ product. Stated otherwise, by employing in the design of their own format the several features used by the plaintiff — elements which had passed into the domain of things public and which gave to the defendants’ reprints an appearance similar to the plaintiff’s product — fairness in competition required of the defendants that their reprints convey to the purchasing public information which identified their product and reasonably distinguished it from that of the plaintiff. (Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 118-120; Saxlehner v. Wagner, 216 U. S. 375, 380, 381; Flagg Mfg. Co. v. Holwag, 178 Mass. 83, 90, 91; Gum, Inc., v. Gumakers of America, Inc., Circuit Court of Appeals, 3rd Circuit, decided June 30, 1943 [N. Y. L. J., 10/18/43].)

We find in the present record preponderant evidence that such, identifying information was provided by the defendants by giving reasonable prominence on the cover of their reprints and elsewhere within the books to the legend AVON pocket-size BOOKS ” and to the medallion adopted by the defendants as a hall-mark. Such identifying information, we think, serves adequately to escinde belief by a literate purchaser that the reprints are those of the plaintiff.

In Gotham Music Service, Inc., v. Denton & Haskins Music Pub. Co. (259 N. Y. 86) — where the plaintiff was denied the right to restrain the defendant from publishing an old song which the plaintiff had re-popularized after it had become publici juris — this court said, per Poukd, Ch. J, (p. 89), The demand is for the song and not the publisher.” So in the present case — where reprints of standard literary works are the subject of competition in trade — we think the weight of evidence establishes that the demand is for the intrinsic character of the reprints denoted by the title, the text, the popularity of the author’s writing, not for the producer.

We hold that the means adopted by the defendants to identify their reprints are adequate to avoid deception as to their source and enable the public to distinguish between the defendants ’ product and that of the plaintiff. Unfair competition has not been proven.

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

Rippey, J.

(dissenting). The evidence and findings in this case establish that plaintiff originated in 1938 a new style and format for reprints which was novel and distinctive and constituted a novel and not theretofore used combination of various features utilized in bookmaking and embodied it in publications which it designated as “ Pocket Books ” to be sold at a small price and of uniform and appropriate sizes to be easily carried in the ordinary coat pocket. Incorporated in the books were editoria] features both novel and distinctive. Large sums of money were spent by plaintiff in sales promotion and the development of its good will and business.' Success and popularity of the project were general and instantaneous and during the following four years over sixteen million copiés were sold some sixty thousand outlets. To capitalize on and take advantage of plaintiff’s good will and property, defendants deliberately, intentionally and fraudulently copied and appropriated to their own use the style and format of plaintiff’s hooks and began to issue and sell in the fall of 1941 books which were practically indistinguishable to the ordinary buyer from plaintiff’s reprints and which were designed to and did confuse and mislead the public into the belief that the books of defendant were in fact issued for sale by the plaintiff.

That the acts and practices of defendants found by the court below constitute unfair trade in business cannot be gainsaid. Not alone was -there found to be deliberate misappropriation of plaintiff’s good will and complete and intentional simulation and imitation of the books in size, distinctive markings and other characteristics but also open and obvious fraud and false pretense.

It is the province of courts of equity to intervene to prevent such acts and practices (Fischer v. Blank, 138 N. Y. 244). Courts of equity do not wink at efforts of an imitator to carry out such a dishonest plan. “ ⅜ * ⅜ the right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right to guard property already acquired. ⅜ * ⅝ ¾ is this right that furnishes the basis of the jurisdiction in the ordinary case of unfair competition ” (International News Service v. Associated Press, 248 U. S. 215, 236). “ The theory upon which a court of equity has long acted is that a resemblance in, or an imitation of the names, signs, or marks, under which another conducts a business, is a deception practiced upon the public and an injury to the proprietor, in the loss of custom and patronage; to redress which an action at law for damages is not a sufficiently satisfactory remedy. * # ⅜ A publication is the subject of property and there is no reason why, like every other kind of property, it should not be the subject of the law’s protection. To put out a colorable imitation of it, by which the public may be easily misled into supposing that it is the literary article they had in mind to obtain and read, is an act of deception, which injures the publisher.” (Munro v. Tousey, 129 N. Y. 38, 41). The test in actions to restrain unfair competition in business is whether the acts complained of are fair or unfair. person should be permitted to pass off as his own the thoughts and works of another. ’ ’ (Fisher v. Star Co., 231 N. Y. 414, 427, 433).

The right to relief in each case depends on its own peculiar facts. The test of unfair competition in a case like this is not found in elaborate descriptions of points of difference discoverable after careful comparison between the competing articles but rather in the resemblance which will deceive the average buyer into believing without elaborate comparison that the simulated article is the original which the buyer has in mind. I am not prepared to subscribe to the proposition that equity will not interfere to prevent such an obvious, deliberate and undeniable species of fraud and deception as is established in this case by the findings of the court

The judgment appealed from should be affirmed, with costs.

Ch. J., LoughraN, DesmoNd and Thacheb, JJ., concur with Lewis, J.; J., dissents in opinion in which Conway, J., concurs.

Judgment accordingly.


source: Caselaw Access Project

author: Desmond, J. Lehman, Ch. J.

license: Public Domain

text:
    The People of the State of New York ex rel. Edgar Kenny, Appellant, against William A. Adams, as Warden of the City Prison of the City of New York, Respondent.
    Argued November 16, 1943;
    decided January 20, 1944.

      Harold L. Allen for appellant.
    I. The relator has a constitutional right to immunity from this prosecution. (People v. Beale, 131 Mise. 96; Dunham v. Ottinger, 243 N. Y. 437; Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. S. 591; People ex rel. Ferguson v. Reardon, 197 N. Y. 236; People ex rel. Leioisohn v. O’Brien, 176 N. Y. 253; Boyd v. United States, 116 U. S. 616.) II. The relator’s books were surrendered under legal process accompanied by coercion and threats. (People y. Defore, 242 N. Y. 13; People v. Adams, 176 N. Y. 351.). III. The relator seasonably asserted his constitutional rights. (People ex rel. Taylor v. Forbes, 143 N. Y. 219; Gounselman v. Hitchcock, 142 U. S. 547; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; United States v. Hoyt, 53 F. 2d 881.)

      Frank 8. Kogan, District Attorney (Stanley K. Fuld and Richard G. Denser of counsel), for respondent.
    I. The Attorney-General’s acquisition of the relator’s books — the product of an improper seizure — did not accord him immunity from prosecution. Section 359 of the General Business Law accords immunity from prosecution only when evidence is compelled by legal process. (Dunham v. Ottinger, 243 N. T. 423; Matter of Doyle, 257 N. Y. 244; People v. Anhut, 162 App. Div. 517, 213 N. Y. 643; People v. Cahill, 126 App. Div. 391, 193 N. Y. 232; HéiTce v. United States, 227 U. S. 131; State v. Garchidi, 187 Wis. 438; People v. Defore, 242 N. Y. 13, 270 U. S. 657; People v. Gardner, 144 N. Y. 119; People v. Richter’s Jewelers, Inc., 291 N. Y. 161; People v. Adams, 176 N. Y. 351, 192 U. S. 585; People v. Mayen, 188 Cal. 237.) II. The relator’s books were not obtained by legal process. (Perry v. Lorillard Fire Ins. Co., 6 Lans. 201; Wolf v. McKinley, 65 Minn. 156; People v. Allen, 246 App. Div. 612; Matter of Phillips, 143 App. Div. 522; United States v. Price, 163 F. 904; State v. Gox, 87 Ohio St. 313; United States v. Sullivan, 274 U. S. 259; Matter of Wilman Agency, 178 Mise. 549, 264 App. Div. 850; Brown v. United States, 276 U. S. 134; Dean v. Kochendorfer, 237 Y. 384; People v. Belsky, 177 Mise. 125.)
   Desmond, J.

Relator, a stock broker, having been thrice indicted on various counts charging crimes of grand larceny and of conducting a “ bucket shop ”, sued out this writ of habeas corpus to test the validity of his detention in the City Prison, where he was awaiting trial on the indictments aforesaid. Relator’s petition sets out his claim that all the indictments áre based on data found by the prosecutor in relator’s books of account, which books, asserts relator, were taken from him by the Attorney-General under such circumstances as to confer immunity on relator, under the terms of section 359 of the General Business Law. The District Attorney, appearing for the respondent Prison Warden, maintains that relator has failed to bring himself within the immunity provisions of that statute, which is part of the so-called “ Martin Act ”. The issues raised by the petition and return were tried at Special Term. At the close of relator’s proof, Special Term dismissed the writ, holding that the books had hot passed from the possession of relator to that* of the Attorney-General in obedience to any subpoena bnt that they bad been turned over to tbe Attorney-General by relator to avoid immediate arrest. Tbe Appellate Division affirmed unanimously but granted relator leave to appeal to this' court.

According to tbe testimony relator, arriving one morning at bis place of business, was met there by two men who identified themselves as an Assistant Attorney-General of tbe State of New York and a New York City policeman. Tbe Assistant Attorney-General told relator that be bad a subpoena for relator’s books of account, banded relator a subpoena and demanded tbe books. That subpoena looms large in this case. Addressed to relator and signed- by tbe Assistant Attorney-General who presented it, it commanded relator to appear “ forthwith ’’-before tbe Attorney-General at tbe latter’s New York City office and to bring with him to that place bis books of account. Tbe subpoena contained also, among other things, a statement that for failure to attend at tbe time and place appointed, relator would “ be deemed guilty of a misdemeanor as provided in tbe General Business Law and other statutes of tbe State of New York.” Taking relator’s testimony as true for present purposes, it is plain that tbe Assistant Attorney-General presented tbe forthwith ’ ’ subpoena as warrant and justification for bis simultaneous oral demand for tbe immediate delivery up of tbe books. Relator, expressing bis reluctance to surrender bis records and bis concern as to bis legal rights, said that be wanted to talk to bis attorney. Failing in an effort to reach bis attorney by telephone, and then stating that be would not give up tbe books till be talked .to his attorney, relator was met by renewed demands for tbe books and by tbe Assistant Attorney-General’s threat that the police officer would arrest relator if be did not band oyer tbe books at once. Again relator telephoned to bis lawyer’s office. This time be reached bis legal adviser and by telephone described bis plight to tbe attorney who informed relator that “ they are not entitled to them (tbe books) ”, advised relator to assert bis constitutional rights, to refuse to surrender tbe books and to submit to arrest if necessary. After' this telephone talk matters were, at relator’s request, held in abeyance until tbe attorney reached tbe scene, a little later. Arriving, tbe lawyer again advised bis client to hold on to the hooks, but later, being told of the threat of arrest, examined the subpoena, noted that it read “ forthwith ” and then advised relator “ if they are going to arrest you, then give them to them.” Relator handed over the hooks to the Assistant Attorney-G-eneral, taking the latter’s receipt therefor. Relator’s attorney then telephoned to another Assistant Attorney-General who seems to have been the person actually in charge of these procedures and asked the latter to change the return time, fixed by the subpoena, so as to make it returnable at three o’clock that afternoon instead of forthwith.” This request was complied with. The Assistant Attorney-General present at relator’s office made appropriate changes in the subpoena, handed the subpoena back to relator and then left the office, taking the books with him. That afternoon, at the Attorney-General’s office, the Assistant Attorney-General who had authorized the change in time on the subpoena, held a hearing. Relator, sworn as a witness thereat, testified to his name, address, ownership of the business et cetera, but refused to answer other questions on the ground that answers might incriminate him. At the hearing there was no mention of the books but the next morning relator’s attorney served on the Attorney-General a letter demanding that the books be returned. The Assistant Attorney-General in a replying letter dated that same day, wrote that the books were being examined by accountants and that time was needed to complete the audit. The books never were returned and it is not now denied that they contain records of the same transactions between relator and certain of his customers, which are charged in the indictments to have been criminal. On the whole picture, we do not think there is justification for the lower courts’ holdings that the acts of the Attorney-General’s assistants were a mere trick or ruse to get relator’s books by a fraudulent use of a subpoena. We hold that the occurrences at relator’s office amounted to this: the Assistant Attorney-General used the “ forthwith ” subpoena, and relator acted on it, as lawful process calling for the immediate production and surrender of relator’s account books. On the same basis we relate the Assistant Attorney-General’s threat of arrest to the provisions of section 352 of the General Business Law which section (subdivisions 1 and 4) makes it a misdemeanor for a stockbroker, in the course of one of these “ Martin Act ” investigations, to refuse to attend or testify at a bearing wben subpoened, or to refuse to furnish to the Attorney-G-eneral “ such other data and information as he may deem relevant We are not in accord with the holding of the Special Term Justice that the episode at relator’s office shows only an unlawful seizure and not testimonial compulsion, nor do we think that relator’s claim of testimonial compulsion, and resulting immunity under the statute, is destroyed by the showing that, at the afternoon hearing at the office, there was no use of or reference to, relator’s books. We think the evidence, necessarily taken as true on the motion dismiss, bears out relator’s contention that he became entitled to immunity under the terms of the statute.

To succeed here, relator had to establish two things: first, that the methods by which his books were taken from him amounted not to an unlawful seizure (see People v. Richter’s Jewelers, Inc., 291 N. Y. 161) but to testimonial compulsion and second, that the procedures made use of by the Attorney-General’s assistants were such as lead to a grant of immunity under -section 359 of the General Business Law. As to testimonial compulsion, we think that People ex rel. Ferguson v. Reardon (197 N. Y. 236) is sufficient authority that relator was compelled “ to submit to an investigation of books and papers kept in his private business, for the purpose of furnishing evidence which might be used against him as a basis for criminal prosecution or suits to recover penalties ” (p. 242). In the Ferguson case there was no subpoena and no hearing but only a demand made at relator Ferguson’s office by an agent of the State Comptroller, for an examination of relator’s books to ascertain whether relator had paid taxes on stock transfers. The pertinent statute required that persons like relator Ferguson keep records as to such matters which records were to “be subject .to the inspection of the comptroller, or any of his representatives The statute there, like section 359 of the General Business Law, made it a misdemeanor to refuse such an inspection. An agent of the Comptroller, armed with a certificate of authority, came to Ferguson’s office, demanded access to the books and was refused such, access, whereupon Ferguson was proceeded against criminally. Judge Hiscock, holding that an inspection of Ferguson’s books would have compelled Ferguson to testify against himself, wrote: It seems to me that this kind of an inquisition and the attempt to secure from an individual evidence which may be used to convict him of a crime or to forfeit his property comes well within the principles which have been applied to the interpretation of the Constitution.” Some years later, in People v. Defore (242 N. Y. 13, 27) Judge Cardozo, while noting that the word “ witness ” is the keyword in the constitutional ban against self-incrimination, wrote that “ force accompanied by process aimed against a witness and compelling action on his part ” violated the constitutional privilege. The Ferguson case, wrote Judge Cardozo, “ went upon the theory that the inspection there permitted by a statute was in effect a proceeding for a discovery or an examination before trial.” No different label should, we think, be put upon those parts of the Martin Act ” which authorize the Attorney-Ceneral to demand any pertinent data or information from a stockbroker and make him guilty of a misdemeanor if he resists. So much for testimonial compulsion.

Answer to the next question, as to immunity, turns on the meaning, under these circumstances, of the immunity grant found in section 359 of the General Business Law. If that enactment makes it a strict requirement for immunity, that there be a demand for the books at the Attorney-General’s hearing, that relator assert his constitutional privilege at that hearing, that the officer conducting the hearing issue to relator at the hearing a direction that relator produce his books and that relator at the hearing comply with such direction,- then relator has not brought himself within the section. But we are not here, we think, cribbed and confined by so literal a reading. The purpose and effect of section 359 is unmistakable. (Dunham v. Ottinger, 243 N. Y. 423, 438.) So that the sweeping grant of inquisitorial power in the Martin Act ” should not fail for unconstitutionality, it was necessary that its authorization of testimonial compulsion be linked up with a corresponding and equally broad grant of immunity. (See People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253, 267; Boyd v. United States, 116 U. S. 616, 639.) We do no violence to section 359 when we read it as conferring a grant of - immunity sufficient to offset the deprivation of the privilege. Consider the situation here: an Assistant Attorney-General, armed with a “ forthwith ” subpoena signed by himself, but obviously acting under the direction of his superior and in touch with the latter by telephone, so uses the subpoena that the books are produced for his inspection, and removed to the place of hearing. If the return time of the subpoena had not been changed from “ forthwith ” to three o’clock that afternoon, and if relator and the Assistant Attorney-General had walked together the few city blocks from relator’s office to the Attorney-General’s office, what difference would it have made whether relator or the Assistant Attorney-General carried the books? What essential difference does it make that relator’s counsel delivered the written demand for the return of the books, to the hearing officer on the morning after the hearing, instead of handing it up at the hearing? We think any such differences are insubstantial and determinative of nothing when an alleged deprivation of fundamental constitutional rights is under scrutiny. (See People ex rel. Taylor v. Forbes, 143 N. Y. 219, 227.)

This is not a case where immunity results unexpectedly and unfortunately from an ill-advised action of a zealous but insufficiently informed peace officer. This is a case of duly authorized assistants to the Attorney-General, lawyers, seeking information deemed by them important and procuring it by the use of a subpoena. It is to be presumed that they knew the terms of the statutes and that they understood and weighed the consequences of their acts. Those consequences cannot now be escaped.

The orders should be reversed and the matter remitted for a new hearing, without costs.

Lehman, Ch. J.

(dissenting). The relator was arrested upon a bench warrant issued by the Court of General Sessions under three indictments charging him with keeping and conducting a bucket-shop,” with grand larceny and with hypothecation of customers’ securities and other kindred offenses. Claiming that under section 359 of the General Business Law he had received immunity from prosecution upon the charges contained in the indictments, the relator by a writ of habeas corpus challenges the right of the State to try him upon these charges. At the hearing upon the writ the relator produced evidence intended to establish his claim of immunity. When the attorney for the relator rested, the District Attorney stated: “ I do not concede the facts as testified to; I have witnesses here, and I do not waive the right to call these witnesses, but at this time I ask that the writ he dismissed on the ground that ’ ’ the relator “ has failed to make out a case which comes under the immunity section of the General Business Law, Section 359.” The Justice at Special Term granted the motion of the District Attorney, and the Appellate Division has unanimously affirmed the order of Special Term dismissing the writ. The question presented upon this appeal is whether the relator’s evidence, which we must assume to he true, establishes the claim to immunity as matter of law.

The relator and an employee of the relator were the only witnesses at the hearing. Judge DesmoNd in his opinion has given a summary of their testimony. I read the testimony differently and I prefer to quote verbatim those parts of the testimony which to me seem significant. That is not, however, the sole ground of our difference of opinion. The facts even as stated in the opinion of Judge DesmoNd would not, in my opinion, justify the conclusion that the relator had established immunity from prosecution under the indictment. The court is about to “ hold that the occurrences at relator’s office amounted to this: The Assistant Attorney-General used the ‘ forthwith ’ subpoena, and relator acted on it as lawful process calling for the immediate production and surrender of relator’s account books.” I find no support in the record for this conclusion. On the contrary it appears from the testimony, hereafter quoted verbatim, that not only was the relator accorded opportunity to consult counsel before he surrendered the books, but was advised by the Attorney-General that you are required by that subpoena to come to the Attorney-General’s office with your books ” and he was threatened with arrest only if he refused to comply with the requirements of the subpoena forthwith to “ come to the Attorney-General’s office with the books,” or if he did not deliver the books to the Assistant Attorney-General.

On the morning of October 17th, Mr. Loehr, an Assistant Attorney-General of the State, accompanied by a man in plain clothes, later identified as a police officer, came to the office of the relator and said to the relator: “ I have a subpoena for your books, we want your books ”, and at tbe same time be banded to tbe relator a subpcena wbicb commanded bim to “ appear and attend before John J. Bennett, Jr., Attorney General of tbe State of New York * * * forthwith * * * at New York State Building, 80 Centre Street, New York, N. Y., 4tb floor, to testify wbat yon * * * may know in regard to matters relating to tbe practices of.and others in tbe issuance, negotiation and sale of securities in and from tbe State of New York and bring witb you tbe following books and papers, wbicb tbe Attorney General deems relevant and material to tbe inquiry: Account and files of Ruby 0. Smith, Customers’ ledger, cash book, copy of bank record and cancelled checks and for failure to attend, you'will be deemed guilty of a misdemeanor as provided in tbe General Business Law and other statutes of tbe State of New York.” (Italics throughout this opinion are mine. These words are not italicized in tbe subpoena which was served.)

The relator testified that when the Assistant Attorney-General handed him the subpcena: “ I said, ‘ Well, I’m sorry, I do not know what this is about, or I do know wbat this is about, I do not know about the books; I’d like to talk to my attorney.’ And he said, ‘ Well, where do you keep your books? ’ So I said, 1 They are in tbe safe.’ And be said, ‘ All right, .open it up ’, and I said, ‘ All right,’ went over and opened the safe and he came along with me, and he said, ‘ I want your blotter, purchase and sales book ’ and named two or three of tbe ordinary brokerage books, so I said, ‘ Well, we don’t have all of those,’ and I reached in and got some, and be reached in and began to take some books out, and I said, There were a lot of books in here, that are very old, very old timers,’ and I took, finally took four or five books out and laid them on a desk, and he went right over to tbe safe, took two or three out, and said, ‘ What’s this, what’s this? ’ And I said, ‘ You can look at them, they haven’t anything to do witb it; they are old things that have been around here for a long while, but you can look at them.’ So I laid the books down on tbe desk, and I said, ‘ Well, now, I do not know whether you are entitled to these books, I do not want to give you these books, they are my books, they belong to me, and I’m not going to let you have them unless I

The Court: Unless you know wbat?
“ A. ‘ Unless I know what I’m doing; I’d like to talk to my attorneys.’ And he said, ‘ Well, we’ve got to have these books,’ and I said, ‘ Well, I do not know about that; wait a little while, and I’ll try to get my attorney on the telephone, and then I’ll tell yon whether I’ll give you the books or not.’ He said, ‘ Well, you’ve got to give us the books; you see the subpoena, and you see we’ve got to have the books,’ and I said, ‘ Well, it might be, but I won’t know; this is a legal matter, and I’m not a lawyer, and I’m not going to give you the books; you’ll use them against me.’ ”

I note here that while the relator had from the beginning tried to find an excuse for not giving up the books .. . saying at first that he did not know “ what this is about ” and that he wanted to see his lawyer and claiming thereafter that he did not have the books, nothing in his testimony until that point indicates even vaguely that he intended to refuse to produce the books because they might tend to incriminate him. I note, too, that no objection was made by Mr. Loehr when the relator said he wished to telephone to his attorney. In the testimony, at least up to this point, I find no words ascribed to the Assistant Attorney-General which unequivocally voice an unlawful demand that the relator should immediately deliver the books to him or to the police officer at the relator’s office, rather than a lawful demand that in obedience to the subpoena the relator should produce the books forthwith ” at an inquiry held by the Attorney-General at the place designated in the subpoena: Such words as “ Well, you’ve got to give us the books; you see the subpoena and you see we’ve got to have the boohs ” seem to me to give scant support indeed for the conclusion set forth in the prevailing opinion that “ the Assistant Attorney General presented the 1 forthwith ’ subpoena as warrant and justification for his simultaneous oral demand for the immediate delivery up of the books.”

Perhaps it is of little consequence whether at that time the relator was threatened with arrest if he refused to bring the books “ forthwith ” to the inquiry in obedience to the subpoena or was threatened with arrest if he did not deliver them immediately to the police officer, for concededly the relator was permitted to telephone to his attorney, and no effort was made to compel him either to deliver the books immediately to the police officer, or even to compel Mm to bring them forthwith to the inquiry, until after the attorney, in response to a telephone conversation, had arrived at the relator’s office and had advised the relator to give up the books.

I quote now the testimony of the relator in reply to questions of his attorney in regard to the telephone conversation which they had on the morning of October 17th': I said, ‘ There are two gentlemen from the attorney’s (sic) office here, and they want my books,’ and you Don’t give them to them, assert your Constitutional right, they are not entitled to them ’ and ‘ Well,’ I said, ‘ that is all right ’, but you Don’t give them to them unless they threaten to arrest you, unless they arrest you, let them arrest you ’, that is what you said. ‘ Well,’ I said, ‘ that is all right, but they have threatened to arrest me already/ and you said ‘ Let them,’ and I said, ‘ Well, that is all * * * You said, Assert your Constitutional right, and don’t give them to ” Perhaps it is not entirely without significance that the relator was advised by his attorney to assert your Constitutional right,” though it does not appear' that the attorney at that time had been informed that the books of the relator contained any evidence which would tend to incriminate him. At that time, too, the relator was advised as to the course he should take if threatened with arrest, though it does not appear why the attorney should suppose that an Assistant Attorney-General might threaten to arrest the relator, at least unless the relator refused to obey the subpoena.

Informed by the relator of the advice he had received from his attorney, the Assistant Attorney-General and the police officer consented to wait until the attorney arrived, though meanwhile they wrapped up the books. Again I quote from the relator’s testimony, the story of what occurred after relator’s attorney arrived and had been informed by the relator that “ they are going to arrest me, they are taking me along now.’ You said, ‘ Well, all right, it is up to you, if they are going to arrest you, then give them to them.’ And I said, ‘ Well, all right, if I’ve got to give them to them,’ and you said, All right; let me see that subpoena.’ And I had it in my hand, or my pocket, and I handed it to you, and you said, ‘ This is And I said, ‘ Yes, I know it.’ And you said, ‘ All right, if you are going to arrest him, you’ve got to take him, down to the Old Slip Station.’ You had a conversation with the police officer, and you said, ‘ Don’t take him to the Attorney General’s office, take him down to the Old Slip Station.’ And you talked a lot about Mr. Cordes, the detective, having had some difficulty over booking a prisoner, and he, the police officer said, ‘ Oh, I’ll book him all right,’ but then in the meantime you said, ‘ Well, all right,’ I said, ‘ Well; let him have — if they will let me stay.’ You said, ‘ Very well, all right; just a minute, I want to talk to Mr. McCall. I cannot go up, up with you now; I’ll call Mr. McCall and se.e whether I can have this changed to late this afternoon. ’ So you went over to my telephone and picked it up — no, Mr. Lohr said, you said to Mr. Lohr, J Whom do you represent? ’ or ‘ Whom are you from in the Attorney General’s office? ’ And Mr. Lohr said, ‘ Prom Mr. Ambrose And you said, ‘ Well, I know Mr. McCall; will you call him up? ’ Or he volunteered. At any rate, Mr. Lohr called up Mr. McCall and said, ‘ Mr. Allen would like to speak to you.’ He said, £ I’m down here at Edgar Kenny & Company,’ and you spoke to Mr. McCall on the phone and said, ‘ I cannot get up at five o’clock,’ you cannot wait down here. Q. That was a request for an adjournment, during which that conversation was had? A. Yes. Q. Upon my part? A. Yes. Q. And who was it, was Mr. Lohr standing at the telephone at that time? A. Yes. Q. Now, what was the conversation on my part that you heard in the presence of Mr. Lohr, as you recall? A. You Ambrose, I cannot get up there, they’ve got the books. I cannot get up there with Mr. Kenny and the books right now, and I’d like to make it later in the day, I’m busy right now.’ You Well, how about five. o’clock? I’m busy all afternoon.’ There must have been some conversation. At any rate you said, ‘ Three o’clock, will be all right.’ Then you turned to Mr. Lohr, and said, ‘ Mr. McCall said three o’clock is all right,’ and put Lohr on the phone, and he spoke to Mr. McCall, and said, ‘ You were talking to Mr. Allen; he doesn’t want to get up there right away.’ Q. Well, after that conversation — A. And then he said, 1 All right, I’ll make it three o’clock.’ Lohr took the subpoena and marked that ‘ forthwith ’ and marked ‘ Three o’clock,’ and you asked him to issue a short receipt. ’ ’ The subpoena was changed from “ forthwith ” to three o’clock in the afternoon.

Isolated fragments of the testimony, at best equivocal, which I have quoted, are construed as a direction for immediate delivery of the books under the threat of arrest. The statute does not prescribe process and penalties to compel such immediate delivery, and the subpoena did not command immediate delivery. The relator’s answers to questions put to him on his cross-examination make it perfectly plain that he understood that demand upon him for immediate delivery of the books was made, if at all, only as an alternative, if the relator refused to obey the command of your subpoena to bring the books to an inquiry at 80 Centre Street: Q. And didn’t they tell you that you had to go down to 80 Centre Street, and take your books with you? No, they said that ‘ if you give us the boohs, you don’t have to go along at this time.’ '* * * Q. Do you still say that the assistant Attorney General or the police officer did not tell you that you had to go down to the Attorney General’s office with the books? A. He said, ‘ We want the books,’ and You are required by that subpoena to come to the Attorney General’s office with your boohs/ and I read the subpoena, and he pointed out to me, * and it says, “ forthwith,” ’ and I said, ‘ Yes, I see that.’ And 1 said, 1 But, nevertheless,’ after I had talked to my attorney, I said, ‘ Well, you know what he said, I repeated to you what he said now, that you are not entitled to the books and don’t give them, and assert your constitutional and they replied, 1 We will arrest you.’ Q. That was all they told you, that you had to go down to the Attorney General’s office with the A. They said, ‘ We want both, of you are obliged to come to the Attorney General’s office with the boohs; now we will take the books.’ ”

Surely when the relator’s attorney advised the relator to submit to a threat of arrest he should have known that neither under the subpoena nor under the statute would a demand be justified for the production of the books at any place other than the office of the Attorney-General and should have known, too, that the relator would not be guilty of a misdemeanor unless he refused to give up the books at the direction of the officer holding an inquiry there.

Pursuant to the altered subpoena the relator and his attorney Mr. Allen appeared at the inquiry held at three p. m., in accordance with the request of the rslator’s attorney. The relator introduced the minutes of that inquiry in evidence. After relator answered a few preliminary questions, Ms attorney stated that the witness refuses to answer these questions and avails himself of his constitutional rights not to incriminate himself in these proceedings.” The witness then refused to answer further questions, and was not directed to do so. Again I quote from the record: ‘ By Mr. Allen: I want to say Mr. McCall that I would like at this time to reserve the right to withdraw my objection and to so advise my client at any suggested adjourned examination. By Mr. McCall: But right now you are advising him not to answer any further questions? A. Yes. Q. And you refuse to answer any further questions at this time? A. Yes. By Mr. Allen: I would like to have a short adjournment until Friday of this week in order that I can examine into the circumstances of this case and prepare myself with proper representation of my client’s interest. After making that examination and it has become possible I will give you a full, frank disclosure of the entire situation.” This ajournment was granted.

The next morning the following letter was delivered to Mr. McCall:

“ October 17, 1938.

Ambrose McCall, Esq.

Assistant Attorney General,

,gtete Building,

New York City, N. Y.

Dear Mr. McCall:

In line with my advice to my client, Mr. Edgar Kenny given at the hearing this afternoon to refuse to testify concerning the matter under inquiry, and advising him to assert his constitutional rights, will you please return the hooks for which your assistant receipted this morning.

In making this request, I want to reserve my right as on the record this afternoon," to produce the hooks in compliance with the subpoena on the adjourned date, if my further investigation into the circumstances should lead me to change my advice to my client.

Harold AlleN.”

and lie answered as follows:

“ JOHN J. BENNETT, JR.

Attorney General

October .18th, 1938

Harold Allen, Esq.,

70 Pine Street,

New York City.

Dear Mr. Allen:

I am in receipt of your letter of October 17th requesting the return of the books of Edgar Kenny & Company.

These books are presently being examined by accountants of the Attorney General’s office and I will have to request that you give me sufficient time to complete our audit.

Yours very truly,

John J. Bennett, Jr.

This relator did not protest, nor did he appear at tne adjourned hearing. Why should he? His attorney had built up his claim of immunity!

Freedom from compulsion to self-incrimination is one of the traditional, rights of free men recognized and developed by the common law and guaranteed by the Constitution of the State of New York: “ No person shall be # * # compelled in any criminal case to be a witness against himself (Art. I, § 6.) The freedom from testimonial compulsion so guaranteed by the Constitution may not be destroyed or abridged by the Legislature. Such freedom from testimonial compulsion extends throughout the field in which there is any peril of prosecution in a “ criminal case ” against the witness, but no further. Within the field where freedom from compulsion is guaranteed by the Constitution, it is the privilege of every he innocent or guilty, virtuous or refuse to give testimony or to produce evidence that might tend to implicate him in a crime. He has no such privilege where “ by some act of amnesty or indemnity or some valid resolution equivalent thereto, he has been relieved from the risk of prosecution for any felony or misdemeanor that his testimony may reveal.” (Matter of Doyle, 257 N. Y. 244, 250.) Submission by a person to testimonial compulsion exercised in violation of the Constitution by a public officer or even by a court or by the Legislature, does not in the absence of a statute confer upon the witness immunity from prosecution. Other, though perhaps less effective, remedy must be invoked for such violation. The Legislature may, however, “ force disclosure from unwilling lips ” where it grants “ immunity * ⅜ * so broad that the risk of prosecution is ended altogether ”, after such disclosure is forced. In that manner, and only in that manner may the scope of the privilege be abridged. (Matter of Boyle, supra, p. 251.)

The Legislature has provided that whenever the Attorney-General believes it to be in the public interest that an investigation be made ” of alleged fraudulent practices in respect to stocks, bonds and other securities ” he may make such investigations as he may deem necessary in connection with the matter. “ The attorney-general, his deputy or other officer designated by him is empowered to subpoena witness * * * and require the production of any books or papers which he deems relevant or material to the inquiry.” (General Business Law, § 352, subd. 2.) “ If a person subpoenaed to attend such inquiry fails to obey the command of a subpoena without reasonable cause * * * or to answer a question or to produce a book or paper when ordered so to do by the officer conducting such inquiry * * * he shall be guilty of a misdemeanor.” (§ 352, subd. 4.)

This court has said that where a statute under the process and penalties prescribed could compel a person to submit to an investigation of books and papers kept in his private business for the purpose of furnishing evidence which might be used against him as a basis for criminal prosecution or suits to recover penalties,” there is compulsion upon to become a witness against bimself though the investigation ” of such books authorized by the statute is made by an executive rather than a judicial officer authorized to hold a hearing. (People ex rel. Ferguson v. Reardon, 197 N. Y. 236.) Here, however, though there is statutory compulsion to obey the command of the subpoena to “ attend such inquiry,” yet since, under the statute, a person attending the inquiry does not become guilty of a misdemeanor by failing to answer a question or produce a book until “ ordered so to do by the officer conducting such inquiry ” the statute, under the process and penalties prescribed ” does not, until such order is given by the officer conducting the inquiry, compel a person to become a witness against himself. The explanation of the Ferguson decision in the subsequent opinion of this court in People v. Defore (242 N. Y. 13, 27), shows plainly that what was said and decided in the Ferguson case can have no application to this case.

The Legislature is, like the courts, under a duty to vindicate the rights of the individual guaranteed by the Constitution. It cannot and has not attempted to authorize the “ officer conducting such inquiry ” to compel a person to produce books which might be used against him in a criminal case. The Legislature has, however, recognized that the public interest may be promoted in some cases by granting to a reluctant witness, who claims his constitutional privilege, an immunity as broad as the privilege claimed: Such claims of privilege are at times advanced by a recalcitrant witness for the protection of others rather than the protection of the witness, and if. the person conducting the inquiry cannot grant immunity to a reluctant witness, it might, at times be impossible to obtain evidence required to bring to justice others who may have played more important parts in suspected crime than the witness. (Cf. People ex rel. Falk v. Sheriff of New York County, 258 Y. 437.) Accordingly, the Legislature in this and other statutes has given to a public prosecutor or to an officer exercising judicial or quasi-judicial functions a broad discretion whether or not he will grant 'immunity to a recalcitrant witness. The relator’s claim of immunity is valid only if he has shown that the officer authorized to grant immunity has done so in accordance with the statute and after opportunity for the exercise of his discretion.

The statute provides: “ Section 359. Immunity If any person shall ask to he excused from testifying or producing any book, paper or other document before the attorney-general or his deputy, or other officer designated by him, or before any court, or magistrate, or referee, upon any trial, investigation or proceeding initiated by the attorney general, district attorney, grand jury or court pursuant to the provisions of this article upon the ground or for the reason that the testimony or evidence, documentary or otherwise required of him may tend to incriminate him or to convict him of a crime or to subject him to a penalty or forfeiture, and shall notwithstanding be directed by the court, referee, magistrate or officer conducting the inquiry to testify or to produce such book, paper or document, he must none the less comply with such direction but in such event he shall not thereafter be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, pursuant thereto and no testimony so given or produced shall be received against him upon any criminal action, suit or proceeding, investigation, inquisition or inquiry.”

Here concededly the books were delivered to an Assistant Attorney-General at the relator’s office and not at the ‘ inquiry ’ ’ at which the relator had been commanded by the subpoena to attend and to bring with him books and papers. Concededly Ambrose Y. McCall, Esq., was the Assistant Attorney-General in charge of the Bureau of Securities in the office of the Attorney-General; concededly he was the “ deputy or other officer ” designated by the Attorney-General in accordance with the statute to hold the inquiry; concededly Mr. McCall, informed by relator’s attorney that he could not “ get up there with Mr. Kenny and the books right now,” granted the attorney’s request to change the time of the hearing; concededly Mr. McCall was not informed that the relator had already been compelled to deliver the books though he had claimed his constitutional privilege; concededly when the relator at the hearing refused to answer questions on the ground that they might incriminate him he was not directed to answer them; concededly, before that time and without a direction from Mr. McCall the relator upon the advice of his attorney had delivered the books

The statute authorizes assistants of the Attorney-General to seek hy the use of a subpoena information deemed hy them to he important upon an investigation held hy the Attorney-General or an officer designated hy him. An assistant of the Attorney-General acting under statutory authority served the subpoena. The same statute which authorizes assistants of the Attorney-General to seek such information in that manner provides that if the person served with the subpoena refuses to produce the information on the ground that it would incriminate him, such person can he compelled to give testimony or produce testimony only hy the direction of the officer holding the inquiry, and only where the officer authorised to give such direction compels its production does the person producing the evidence obtain immunity. Under the provisions of the statute no person, though acting under the advice of counsel, can gain immunity except hy the unequivocal direction of the officer authorized to conduct the inquiry who alone can decide whether immunity is too high a price for the information which is sought. Mr. Ambrose V. McCall was the person so authorized here and the relator’s attorney knew that, yet he advised the relator to deliver up the hooks to the person serving the subpoena under threat of arrest made by them without waiting for the direction of Mr. McCall though both the relator and his counsel knew that the relator could not he arrested if the relator were willing to obey the command of the subpoena.

arrest which Ms counsel knew was unlawful. The belated request of counsel for the return of the books and reply of the officer holding the inquiry asking for time must be read in the light of. the statement, made by relator’s counsel the day before at the hearing, requesting an adjournment in order to examine the circumstances of the case and to determine whether or not to make a full, frank disclosure of the entire situation.” By this decision the only right wMch the court is vindicating is the right of counsel to endeavor to obtain immunity for a client.

Rippey, and Thacher, JJ., concur with J.; LehmaN, Ch. J., dissents in opinion in which Lewis, J., concurs.

Orders reversed, etc.


author: CoNway, J.

text:
    The People of the State of New York, Respondent, v. Joseph Cuozzo, Appellant.
    Argued October 13, 1943;
    decided January 20, 1944.

      George J. Skivington for appellant.
    I. The several confessions were each either untrue, impossible, unreliable, contradictory, discredited or unbelievable and must be rejected. II. The verdict is against the weight of evidence. {People v. Gashin, 259 N. Y. 434; People v. Crum, 272 N. Y. 348; People v. Weiss, 290 N. Y. 160; People v. Mummiani, 258 N. Y. 394.) III. The judgment of conviction should be reversed and a new trial ordered. (People v. Joyce, 233 N. Y. 61.)

      Elliott A. Horton, District Attorney, for respondent.
    I. The defendant killed Lois Tryon after forming a decision to kill her and committed the act with deliberation and premeditation. {People v. Kennedy, 159 N. Y. 346; People v. Constantino, 153 N. Y. 24.) II. The defendant was legally responsible, was capable of making a valid confession, and the confessions were properly admitted in evidence. {People v. Moran, 249 N. Y. 179; People v. Egnor, 175 N. Y. 419; People v. Silverman, 181 N. Y. 235; People v. Farmer, 194 N. Y. 251; People v. Ferraro, 161 N. Y. 365; People v. Burgess, 153 N. Y. 561.) III. The People established the guilt of the defendant by the greater weight of evidence and beyond a reasonable doubt. {People v. Becker, 215 N. Y. 126; People v. Filippelli, 173 N. Y. 509; People v. Seidenshner, 210 N. Y. 341.) IV. The confessions may be considered as evidence of the crime charged, and there was sufficient evidence in addition to the confessions to sustain the judgment of conviction. {People v. Brasch, 193 N. Y. 46; People v. Roach, 215 N. Y. 592.)
   On April 6, 1939, Lois Tryon, a nineteen year old high school senior, left her home for an afternoon walk. She lived in a rural section of the town of York in Livingston County, and along the roads she traversed there were occasional farmhouses and barns. It was early spring in Central New York, the air was cold and the ground wet. Lois Tryon’s home was at the intersection of two roads, which ran northeast and southeast respectively, and these two roads with another road which ran north and south and which crossed the two roads just mentioned about a mile and a half from her home, made a roughly triangular pattern each side about a mile and a half long and with Lois home at the apex or most westerly point of the triangle. Starting out on her walk between 2:30 and 3 o’clock on the fateful afternoon, she made her way along the road which formed the left hand side of the triangle, till she came to a candy store in the little hamlet or settlement of Wadsworth at the intersection of that road with the north and south road. After buying a candy bar in á shop at that intersection, she turned the corner and started south along the north and south, or Leicester-York road. Along that road the young girl passed several buildings, one of which is the home of defendant and his family, another a barn which housed cattle belonging to defendant’s family. Prom undis-putable testimony it appears that between 4:30 and 5 o ’clock that afternoon, the girl reached the next corner of the triangle, called Teed Corners, that is, the place where the north-south road crosses the (Peoria) road which would take her back home. No witness saw her turn that corner into the Peoria road and, aside from the confessions which we shall describe, there is no proof that she ever made that turning or started back toward home. About parallel to the north-south (Leicester-York) road and three or four hundred feet west of it, run the main line tracks of the Delaware, Lackawanna and Western Railroad. Those tracks cross the Peoria road at grade so that, if Lois Tryon did turn right and walk in a northwesterly direction along the Peoria road toward her home, she must have come to the railroad tracks a minute or so after she made the turn at Teed Corners. It appears that there was a footpath running south alongside the railroad tracks from the Peoria road and that there were some houses farther ■ south which could be approached from that footpath, so that it is not impossible that the girl, if she ever reached the railroad crossing of the Peoria road, there turned south and walked along the tracks.

Lois Tryon never reached her home. The next morning two railroad workers found pieces of her mangled body scattered along and near the southbound or westerly railroad tracks a quarter-mile south of Teed Corners. It is satisfactorily established from undisputable physical facts that she was hit and killed by a fast passenger train which at about 7:05 that evening passed the place where her body was found. On her body were no marks indicating any assault by a human being — there is medical testimony negativing any sexual assault. The local peace officers and medical examiner conducted an investigation and questioned many persons (not including this defendant) but no important information was obtained and the investigation was closed.

Three and a half years later, on September 4,1942, defendant Joseph Cuozzo, who lived with his mother and brothers on a farm on the Leicester-York road a mile or so from the place where the girl’s body was found, was arrested by two deputy sheriffs of the county, on a charge having nothing to do with the death of Lois Tryon. Defendant, though twenty five years old in 1939, had the mentality of a child and was at best a mid-grade moron After his arraignment on the charge for which he was arrested on September 4, 1942, defendant, while having a meal that evening at a restaurant with the two deputy sheriffs, suddenly and for no apparent reason asked the deputy sheriffs whether they 44 had ever found out who killed the Tryon girl ”. The deputies at once reported to the sheriff this suspicious question and the sheriff immediately began to examine into the matter. Taking defendant to the barn on the Leicester-York road where defendant’s family kept their cattle, the sheriff there questioned defendant at length. Defendant, with little show of fear and none of sorrow, confessed that he had raped and killed Lois Tryon. That first oral confession ran like this: defendant said that on the afternoon in question, while riding in a truck with his brothers, on the York-Leicester road, from his home to the barn, he saw the Tryon girl walking south in that road, that when his brothers went into the barn to do their chores, he (defendant) followed the girl and caught up with her before she reached Teed Corners. We digress to say that the place where in his first confession he says he met the girl is important, since it afterwards appeared that other persons had seen her that afternoon, unaccompanied by defendant, at a place several hundred feet farther south on the York-Leicester road and just north of the Teed Corners intersection with the west bound or Peoria road. We note also at this point, for a better understanding of the numerous, and in many respects contradictory, confessions, that no one was ever found who had seen defendant with the Tryon girl, that afternoon or at any other time. The first confession continued thus: defendant said that, meeting the girl at a point north of the Teed Corners intersection, he walked along and talked with her, went with her around the corner into the Peoria road and then walked with her along that road to a point where there is an opening in the fence on the south side of the Peoria road, the opening leading into a field and being, it appears, more than a thousand feet west or northwest of the Teed Corners intersection. At that point, said defendant in his first confession, he asked for and got the girl’s consent to an act of sexual intimacy which act, said he, thereupon took place in the field near the fence opening. We think it proper to say here that we cannot and do not credit that statement as to consent. The District Attorney in his opening speech to the jury at the trial, said that Lois Tryon was “ highly respected in .the community ”. Whatever else there may be of truth in the confession, it is beyond all reasonable belief that she submitted herself to this defendant. Further in his first confession to the sheriff, defendant told the sheriff that after the sexual act, he and Lois Tryon walked north in the field, in a direction away from her home, toward the railroad tracks, climbed the low embankment on which the tracks ran, then walked south on a path along the tracks, that defendant, walking behind the girl, suddenly struck her several times on the head with an iron bar which he had found nearby, felling her; that he did not know why he did it ‘ his head bothered him that he placed her body on the rails, then went down the embankment and hid and waited till the 7:05 train went by, whereupon he climbed back up the embankment, viewed the dead and dismembered body, then went home to bed. The oral confession just summarized was the first of eleven extrajudicial confessions by defendant, seven of them oral and four of them written, all made within a month and furnished by defendant, apparently, without reserve or fear and with little appearance of sorrow, to all who would listen. In the first of the written confessions, made to the sheriff a few hours after the first oral admissions, defendant repeated his incredible story as to the girl’s consent. Later, however, he must have thought better of this, since in all the confessions after the first two, lie described in fullest detail a forcible rape. That was not tbe only change be made in bis story. In bis first few • confessions be stated explicitly that bis meeting with tbe girl was on tbe north-south road at a point well north of Teed Corners. Later be changed that materially by placing tbe meeting at a point well past tbe railroad tracks on tbe Peoria road, perhaps a quarter-mile from tbe place described in tbe earlier confessions. Tbe significance of that change is real. Defendant’s new fixation of tbe place of meeting was made after one of tbe investigators, an attorney, bad told defendant that defendant’s first locations of tbe place where be caught up with Lois Tryon were “ not right ”. Promptly and obligingly defendant changed tbe place. If be bad not so changed it, bis whole story would have collapsed since reliable witnesses bad appeared to say that they saw tbe girl alone, some time after she bad passed the' place first fixed by defendant as tbe exact place where be met Lois Tryon. We will not describe all the confessions in detail nor all tbe discrepancies therein. Tbe discrepancies are numerous and not inconsequential particularly in such a case as this where no person save himself, and no fact, describes defendant as tbe killer. In one of tbe confessions defendant referred to taking off tbe girl’s coat before assaulting her — be mentioned this in no other place. (Incidentally be described tbe girl’s coat as dark whereas it was light tan or brown in color.) In tbe first confession be did not say whether or not be had told anyone of bis crime (before be talked to tbe sheriff); in tbe second confession be said that be did not tell anyone and in tbe third be recounted that three or four days after tbe killing be confessed to bis mother (tbe mother on tbe stand denied this). In tbe fourth and subsequent confessions defendant said that after tbe forcible rape be and tbe girl “ walked nice ” together, a statement not only difficult of belief in itself but quite inconsistent with bis earlier descriptions of their movements after tbe (alleged) sexual act. In,two of tbe confessions, and in none of tbe others, be related that tbe girl threatened to tell her father — there is no mention of such a thing in tbe other confessions. In one of the confessions defendant told of tbe girl screaming after be bit her. There is nothing of that in tbe other confessions. Besides these internal differences (and there are others in the confessions) there is at least one sharp conflict between the admissions and the uncontroverted fact. In all the confessions defendant’s story was that after the alleged intimacies he and the girl walked a considerable distance through the fields which were rough from the previous fall’s plowing and muddy from the spring rains. Yet, when the body was found, the girl’s shoes and rubbers were lying apart from the mutilated remains, uninjured and clean of mud, between the tracks. There is nothing in any of the confessions to explain that.

Having examined those confessions with an eye to trustworthiness, we pass to a consideration' of an entirely different question connected with the confessions. Defendant did not take the stand. Section 395 of the Code of Criminal Procedure lays down the rule that a defendant’s confession “ is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.” Obviously that statute requires proof outside the confession, of the corpus delicti, which in case of murder or manslaughter, means the body of a crime, and • is divided into two component parts, the first of which is the death of the person, and the second is that the death is produced through criminal agency ” (People v. Benham, 160 N. Y. 402, 425; Ruloff v. People, 18 N. Y. 179, 192). Section 395 has been examined, explained and applied in a great many cases in this court. “ There must be evidence in addition to the confession to prove the corpus delicti, but when * * * the corpus delicti is proved by independent evidence, and the defendant has. voluntarily confessed his guilt, a case for the jury is made out, and a conviction based upon such testimony is warranted in law ” (People v. Roach, 215 N. Y. 592, 600). In that case the court noted (p. 601) that without regard to any of the confessions ” the fact that the deceased was. murdered was abundantly proven. “ The meaning of the Code is-that there must be some evidence of the corpus delicti besides the confession, the purpose being to require some proof of the death, and the violence which caused it, outside of and beyond the mere confession of the prisoner ” (People v. Deacons, 109 N. Y. 374, 378).

some few jurisdictions are satisfied if tlie confession be bolstered by any proof which tends to corroborate the truth of the confession, that is not the law in New York. (7 Wigmore on Evidence, 3rd ed., § 2071.) Any expressions in People v. Brasch or People v. Jaehne, supra, which seem to suggest the less stringent rule, must be read in the light of the statements in those very opinions that the records in those cases contained very strong circumstantial evidence outside the confessions, not of the truthfulness of the confessions in some detail or other, but of the commission of the crimes charged in the indictments. For recent cases in this court strictly applying the rule of section 395 see People v. Fitzgerald (288 N. Y. 58) and People v. Popoff (289 N. Y. 344). In the Popoff case a conviction for arson was reversed (see opinion at page 347 as to the fifth count) on the ground that testimony of a witness that he drove defendant to the city where the crime was said to have been committed and there saw defendant going to, and later coming from, the direction, of the building that was to be burned, was not sufficient additional proof of the body of the crime. At the risk, of repetition, but because we believe that the requirements of section 395 were not met here, we restate the rule in the words of Judge Fikch at page 378 of the Deacons opinion “ There must be some other evidence of the existence of the criminal fact to which the confession relates.” In the present case, as we shall show in the next paragraph, there was not additional proof of the “ criminal fact ” but only a naked confession supplemented by a showing by outside proof that some of the statements in the confessions were true. Such a corroboration of the partial truthfulness of the confessions might have its place in weighing the whole evidence to see if it made out a case beyond a reasonable doubt. But it does not satisfy the statutory command of section 395. In the Deacons case, where mention is made (at p. 382) of the separate proof showing the accuracy of the descriptions in the confessions of the interior of a certain house, that separate proof is not treated as additional proof of the corpus delicti-, the additional and entirely different proof of the corpus delicti is described and passed upon elsewhere in the Deacons opinion (p. 378).

In his brief on this appeal the District Attorney lists ten different items of evidence ontside the confessions each of which corroborates ” some statement or other in the confession, and he argues that this corroboration establishes that defendant is the killer. Such corroboration there may be, and it may make it seem “ possible and perhaps probable ” (People v. Gordon, 194 App. Div. 665, 667) that defendant is in truth guilty, yet corroboration of the truthfulness of a confession is no answer at all to the demand of section 395 for additional proof of the corpus delicti. The corroborative evidence listed by the prosecutor at this point in his argument, is as follows: defendant’s brother confirmed defendant’s confessional statement that defendant, while riding with his brothers on the truck, saw Lois Tryon walking on the highway; the girl’s mother confirmed defendant’s statement that the girl wore short stockings, a bandanna or kerchief on her head and underwear of a certain kind and color; the sheriff’s testimony showed that after defendant in his first confession had described the hole in the fence on the Peoria road, defendant showed the sheriff the very hole in the exact place-; defendant’s statements in the confessions as to the time the train passed, as to its headlights being lighted, as to its being on the south-bound tracks and as to the girl’s body being mangled, were all corroborated by trial witnesses; the prosecutor says that the statement in one confession that the girl threw away a paper candy wrapper is borne out by proof that she had bought a candy bar at the crossroads store in Wadsworth and that a partly eaten bar was found in her pocket after her death; finally, we are told, defendant’s description of the train carrying the body some distance beyond a trestle is confirmed by the testimony of witnesses as to where the body was actually found. It is at once evident that nearly all those statements made by defendant in the confessions and said to be “corroborated” by other witnesses are as to matters which were of common knowledge in the vicinity or as to details which defendant might have observed when he visited the scene on the morning after the death. Indeed, the only item to which that explanation would not apply would be the description of the girl’s underclothing. Nothing in the record gives us any clue as to how defendant found that out unless he was the killer. But that one mysterious and unexplained piece of special knowledge on his part, significant though it may he and important as it surely would he on the question of the weight to be given the confession, is not proof of a homicidal killing, and neither is any other of the listed items of “ corroboration ”, or all of them together.

It was, we assume, to those alleged corroborations of the veracity of the confessions that the Trial Justice referred when he told the jury in the charge that16 in addition to these confessions the people have introduced, as I have said, both direct and circumstantial evidence tending to corroborate the statements of the defendant as contained in the confessions.” The only direct ” evidence in the case (aside from the confessions) is direct evidence that the girl died of injuries. In that sense the phrase direct evidence ” may have been accurately used in the above quoted excerpt. But there certainly was no direct ” evidence (we hold there was no evidence at all) outside the confessions that the crime charged had been committed. Yet on that point the language of the charge was: ‘ Furthermore, you may not convict this defendant solely upon these confessions or any statements or admissions made in them. There must be proof in addition to such statements or confessions that the crime charged has been committed. The people have produced evidence in addition to these alleged confessions some of which is direct and some circumstantial ” (emphasis supplied). That was a fiat statement to the jury that the People had complied with section 395, and there is nothing else in the charge to offset it. Furthermore, the court, beyond informing the jury that there was, outside the confessions, both circumstantial and direct evidence of the commission of the crime, nowhere listed, described or identified that evidence. The effect of all this was to eliminate from the case altogether, any question either of fact or law as to compliance with section 395.

Since the jury found against defendant on both issues, we do not discuss the alleged insanity of defendant or the attempt to prove an alibi.

The judgment of conviction should be reversed and a new trial ordered,

CoNway, J.

(dissenting). About three o’clock on the afternoon of April 6, 1939, Lois Tryon, nineteen years of age, of robust health, and happy disposition, soon to graduate from high school, and living with her parents in a farming district of Livingston County, left her home to take a walk. Proceeding easterly along the Old State Eoad she passed the home of the Flynn family, and spoke to one of the Flynns saying that there was nothing better than walking for exercise. About a mile or a mile and a half to the east of the Flynn home, she came to the store of one Patanella. She entered the store, purchased a chocolate candy bar, and left the store about 4:00 or 4:30 and proceeded southerly on York Eoad. She was next seen by Frank Cuozzo, a brother of the defendant, when she passed the Cuozzo home. Frank Cuozzo is a member of a family which then consisted, in addition to his mother, of his their three children, his two brothers, of whom the defendant was one, and two of his sisters. As the young woman passed that home she was identified by Dominick Cuozzo, a brother of Frank and of the defendant. At that time the defendant was in the barn doing some chores. At about 4:30 or 4:45 Frank Cuozzo was driving his truck toward what is known as the Donnan barn. In the truck with Frank were his brother Dominick, the defendant, a brother-in-law and another man, four of the men being in the cab of the truck and the defendant being in the rear of it. Frank Cuozzo saw the young woman again as the truck was nearing the barn. She was still continuing in a southerly direction. When the truck reached the barn, the defendant and two of the men left it, and Frank Cuozzo and his brother-in-law drove away. Lois Tryon next was seen when passing the home of one Cleveland. She was next seen by three girls about 4:30 between 400 and 500 feet north of Teed’s Corners still walking south on the York Eoad. They waved to her and she waved in return; she was not again seen alive.

The following morning a portion of her dismembered body was.discovered by two railroad patrolmen some 1,300 or 1,400 feet south of Teed’s Corners. Parts of the body were strewn over a distance of a quarter of a mile.

More than three years later, on September 4, 1942, the defendant was arrested by two deputies sheriff. He was arrested, morals as his counsel describes it. After his arrest he was taken to the county seat at Geneseo and since it was too late for him to have dinner in the prison he was taken to a restaurant in that village. While at dinner the defendant “ spoke up and asked if we (the deputies sheriff) had ever found out who killed the Tryon girl.” That seemed significant to the arresting officers and he was immediately taken to the Livingston County J ail and in the late hours of the same night he was taken by the sheriff and two deputies to the Donnan barn on the Leicester-York road, to which reference has been heretofore made. There he was questioned and he confessed that he had attacked the deceased and thereafter had rendered her unconscious by striking her with a bar and then placed her upon the railroad tracks. The defendant made subsequent confessions some oral and some transcribed by a stenographer and subscribed by defendant. It is unnecessary to go into the details at length. In one which he subscribed after relating his attack on the deceased near the gap in the fence he walked along beside her until we reached the fence on the west side of the railroad tracks. I held the fence while she got over and then I got over. After getting over the fence we climbed up to the tracks. She turned and walked toward the south along the path ou the west side of the tracks. I walked right behind her as the path was narrow. After we had walked a short distance I saw a piece of iron bar lying alongside the tracks and stooped and picked it up. She did not see me do this. A short distance before we reached the trestle, I grabbed her right arm with my left hand and swung her around and hit her on the forehead just above the nose with the iron bar which I was holding in my right hand. I struck her with this bar either three or four times. She fell to the ground beside the track. There are four rails and she fell beside the west rail. After she fell to the ground she was quiet but was still breathing. It was getting dark at this time. I then dragged her body a little further south and placed her over the west rail with her back on the rail. I knew she was mad and I was mad too. I was scared that she was going to tell some one what had happened and then what would happen to me. I thought that if I knocked her uncen out and then placed her body on the track so that a train would run over and kill her that no one would find out what I had done. When I placed her body on the track I noticed that her stomach was going up and down a little and that is the' way I knew she was still breathing. She did not say anything or make any sound after I had placed her body on the track. I then went down the hank beside the track by a telephone pole and waited for a train to come by. I put her body on the west track because I knew that the nest train that went down would go over this track. I must have waited about 15 or 20 minutes before the train went by. It was a passenger train as I recall. When the train had gone by I went up the bank to the tracks. I saw the train had carried her body beyond the trestle. I was very scared and started for home at once. I ran and walked down the rail road tracks until I reached a point opposito-my-ho-me Goodwins lane and then went down the lane and into the road and to my house. My mother and two sisters were in the' house. I sat up a little while and then went to bed. I had had my supper before I started to the milk house with my brother Frank and the other boys.”

It seems to us that there are details in that confession which could not have been known to. anyone who had not lived through the episode, and could not have been learned from the lips of his neighbors.

There is another matter which the defendant could not well have so learned. Orders were given to make an inspection of all trains arriving at Hoboken on the morning of April 7, 1939. The only evidence that a train had struck a human being was found on the baggage ear of train 20. The baggage car was the head car, immediately behind the engine. The engine had been changed at Elmira and was not inspected. On the baggage car in between the spring and spring sections there were found small pieces of flesh and hair. Those were found on the front end at the southeast corner of the car. (It was headed east.) The hairs were examined one week after the accident and were later compared with a sample of the hair of the deceased and were found to be identical in color, in size, in texture, in pigmentation and (are) compatible.” Train No. 20 ran from Buffalo to Hoboken on April 6, 1939. It left Buffalo at about 6:30 p. m., and passed Teed’s Corners Crossing about 7 ;05 p. m, The defendant said he placed the body of deceased on the rail of the west track toward the Leicester Road. That is the rail over which the southeast corner of the baggage car passed as it headed east and the corner on which the flesh and hair were found.

It is true that the defendant amplified and made changes in his confessions as they were made by him from time to time. There is no testimony in this case that any confession was obtained improperly. There was no denial by the defendant of the truth of any of the confessions. It seems to us that whether the confessions were made, whether they were truthful confessions and whether the defendant had the capacity mentally to make the confessions was a question for the twelve men who sat upon the jury. (People v. Buchalter, 289 N. Y. 181, 230; People v. Peller, 291 N. Y. 438.) We cannot say as a matter of law 'that a man of his type would not be more egotistical in one confession than in another or even more boastful in some than the facts warranted. That is not unusual regardless of mental grade. He did not know what the autopsy would disclose. Moreover, it is not unusual .that after three and one half years more details would come to the top of a man’s mind in subsequent confessions than in the initial one.

The defendant was twenty-nine years of age with the mentality of one of nine and one-half years. There is, however, no question here of legal insanity. The defendant was committed by the court to the Rochester State Hospital and he was there for three months. The report of the Superintendent showed that he knew the difference between right and wrong and had no sense deception, false ideas or other evidence of psychotic symptoms. In addition the doctor at the psychiatric clinic at Attica State Prison who specialized in criminal psychology examined the defendant. That doctor said that the defendant was somewhat retarded mentally, classified as a mid-grade moron, but without any evidence of psychosis or insanity ” and that defendant had the capacity to make a valid confession. The defendant went with him to Teed’s Corners and made a full confession to him. The defendant called no doctors to testify that he was insane.

That the defendant had a fair trial is best attested by the language of his own counsel to the jury: At the outset I want to say in reference to Mr. Horton that I have never sat through the trial of a law suit where I have received the courteous, careful attention and aid that Mr. Horton has given me in this law suit. Whenever there was a paper that he had I have been furnished with a copy of it, and I can’t speak too highly of the manner in which he has presented this case as the District Attorney. My experience with district attorneys is far different. Mr. Horton has no love of the chase or the kill. He has presented his law suit in the fairest way that I have ever in my life time seen a district attorney present a case, and I can’t help but express my appreciation of it to him and to you.”

It seems to us that the jury properly inferred that the deceased came to her death by foul means entirely apart from any confession. Indeed it may be' said that the facts compelled that inference. Before the defendant confessed his guilt there was a presumption that he was not concerned in her death. That was the presumption of innocence to which he was entitled. There was no presumption that the death of the deceased had been “ caused in any particular way, whether by suicide, by the defendant himself through innocent misadventure, or by the act of some one else, undetected or unknown ” or by misadventure of the deceased upon the railroad track. (People v. Miller, 257 N. Y. 54, 61.) The jury could well find that the deceased had not committed suicide for the testimony showed that she was not unhappy nor worried nor ill nor despondent nor moody. On the contrary, as we have indicated {supra), the testimony was that she was a strong, robust, athletic, happy young girl of nineteen years. She was enjoying the Easter holidays. As she proceeded along she told one Flynn, that there was nothing better than walking for exercise. Three girls waved to her a short distance from Teed’s Corners where she was last seen and she waved in return. Apparently she was happy in her associations with girls of her age. The autopsy showed that she was a virgin. There was no semblance of support for a suicide theory.

The jury could have considered the possibility of accident on the assumption, although there was no evidence of it, that the deceased walked along the railroad track and was struck by a train. The difficulty with that hypothesis was that the deceased waved to the three girls at about 4:30 o’clock when she was approximately 450 feet north of Teed’s Corners. When her body was found, a considerable portion of it was 1,300 or 1,400 feet south of Teed’s Corners. The train that struck her, passed Teed’s Corners’ Crossing at about 7:05 p. m. That was two and one half hours later. Clearly it did not take two and one half hours to walk 2,000 feet. If the deceased had walked 1,400 feet from Teed’s Corners south along the railroad track and had stumbled and fallen, she must have lain there for two and one-half hours. But if she had lain there for that period of time, she would not have been struck by train No. 20 at 7:05 p. m. but by a train that passed over the same track and the same spot at approximately 5:19 p. m. It would have been bright daylight at that time in April and she would have been seen. At any rate she would not have been struck by train No. 20. In addition, a train passed that spot on the other track (west) at approximately 6:36 p. m.

The jury might properly infer, therefore, as it did, that the death of the deceased, since due neither to suicide nor her own misadventure, was the result of the criminal act of some person. They believed the defendant’s confession that he was that person but there was proof of someone’s crime without the confession.

That leaves but one question and that is whether the prosecution complied with the requirements of Code of Criminal Procedure, section 395, providing that a confession is not sufficient to warrant a conviction without additional proof that the crime charged has been committed.”

The majority opinion leans heavily upon People v. Deacons (109 N. Y. 374) but the decision and language in the opinion in that case have been explained in the later case of People v. Brasch (Hiscock, J.) (193 N. Y. 46, 62) as follows: “ In People v. Deacons (109 N. Y. 374) there was presented to the court for review a judgment of conviction in a murder case which was based largely on a confession of the defendant. In that case it was claimed that the finding of the body of the murdered person was not such additional proof as was required by the Code. The court said in answer to this contention, however: £ That is a mistaken construction. The crime charged was the murder of Mrs. Stone. That fact was conclusively proved by the finding of her dead body with the unmistakable marks of a murder committed. The meaning of the Code is that there must be some other evidence of the corpus delicti besides the confession, the purpose being to require some proof of the death and the violence which caused it, outside of and beyond the mere confession of the prisoner. In a case where the body is not found, and there is no proof of violence or of death except by the confession of the accused, that confession will not suffice. There must be some other evidence of the existence of the criminal fact to which the confession relates. The Code but repeats the pre-existing rule that “ there must be proof alkmde of the corpus delicti, although such proof need not be conclusive.” In that case it is true that the dead body of the victim did, as stated by the court, bear 1 unmistakable marks of a murder committed ’, whereas in this case the body bears no marks indicating whether the deceased got into the water through one agency or through another. But what was said by the court is broad enough to indicate that the dead body found under the circumstances disclosed in this case itself furnished some additional and corroborative evidence without such marks.”

In the Brasch case the defendant had confessed that he had pushed his wife into the water where, after a brief struggle, she sank and was drowned. She was found in the water at a point indicated in the confession. The body contained no marks, however, which would indicate that a crime had been committed.' This court through Judge Hiscock said: “ The death of the deceased concededly has been sufficiently established ‘ by direct proof,’ her dead body having been found and fully identified. But it is insisted that the other essential fact, ‘ of killing by the has not been sufficiently established. In support of this general claim defendant’s counsel by exceptions to the charge as made and by requests to charge, which were refused, has presented and now argues the propositions, first, that the criminal agency of the defendant under the first section cannot be established even in part by his confession, and, secondly, that if such confession could be utilized at all for the purpose of establishing such criminal agency it is not corroborated or supplemented by 1 additional proof ’ within the meaning of the latter section quoted. This last proposition reduced to its most favorable form is that there is no proof in addition to his confession tending directly and specifically to prove the fact that defendant placed his hand on his wife and pushed her into the canal; that the dead body does not give any sign that the deceased was pushed into the canal by the defendant as distinguished from jumping or accidentally falling into the water, and that, therefore, it was error for the court to hold in effect that the finding of such body might be considered as a fact in corroboration of defendant’s confession and tending to establish that he was guilty of the crime charged.

“ This court already has so fully rejected the first proposition, that a defendant’s confession may not be at all considered in establishing the commission by him of the crime charged, that we need only refer to the cases on that point. (People v. Jaehne, 103 N. Y. 182, 199; People v. Beckwith, 108 N. Y. 67, 74.)

“ In like manner I think that both reason and authorities are opposed to the second proposition, that in this case the facts proved outside of the confessions, including the finding of the dead body, do not satisfy the requirements of the statute, even though such additional evidence does not amount to direct proof of defendant’s murderous act.

“ It is true that the additional evidence does not picture the defendant in the very act of pushing his wife into the water, and it does not describe any particular mark on her body decisively proving that she was pushed in rather than that she fell in. Very probably it does not so conclusively establish the crime charged that we should be willing to affirm a conviction based on it alone. But that is not the question before ns. It is not necessary that it should be sufficient to convict defendant independent of the confession. The question is whether there is any evidence in addition to the confession reasonably tending to prove the crime and thus corroborate the confession. And it is impossible to answer this question in the negative when we confront the practically undisputed facts which I have already sufficiently stated. It would shock common sense to say in the light of the confession that all of these circumstances do not in any degree tend to prove a crime, and that the requirements of the statute have not been satisfied, and that the defendant should be discharged because some other impossible evidence has not been produced.”

Very recently we approved the Jaehne case and the following charge as correctly stating the applicable doctrine: “ Full, direct and positive evidence of the corpus'delicti, that is, death as the result of the criminal agency of another as the means independent of the confession is not required. It is sufficient to warrant a conviction if corroborating circumstances are shown which, when considered in connection with the confession are sufficient to establish the defendant’s guilt in the minds of the jury beyond a reasonable doubt.” (People v. Conroy, 287 N. Y. 201, 202.)

Judgment should be affirmed.

Ch. J., Loughran, Rippey and Thachee, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lewis, J., concurs.

Judgment of conviction reversed, etc.