#### The People of the State of New York, Respondent, *v.*Emerson Colburn, Appellant.

Second Department,

May 8, 1914.

Crime — sodomy — conviction for sodomy under indictment charging-murder — claim of defendant, jointly indicted, to constitutional privilege as witness—rulings of court examined — evidence.

Under an indictment for murder in the first degree, charging in the first count that the defendants, in the commission of the crime of sodomy, committed murder, and in the second count charging murder, the defendants may be found guilty of the crime of sodomy, although there was no separate count in the indictment charging said crime.

Evidence examined, and *held,*sufficient to sustain a conviction for the crime of sodomy.

Where, after the defendant and another were jointly indicted for murder, the former obtained a separate trial, and the latter when called as a witness was informed that his evidence might be used against him, but that he might assert his constitutional privilege, and he testified, nevertheless, to facts tending to exculpate himself, there was no error; and, even if there were error, it would not avail the defendant.

Appeal by the defendant, Emerson Colburn, from a judgment of the Supreme Court, rendered against him on the 13th day of April, 1910, also from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 2d day of April, 1910, disallowing a demurrer to the indictment, and also from an order of a justice of the Supreme Court, entered in the office of the clerk of the county of Kings on the 6th day of June, 1910, denying the defendant’s motion to inspect the minutes of the grand jury.

The indictment reads as follows:

“ The Grand Jury of the County of Kings, by this indictment, accuse Emerson Colburn and James Hagaman of the crime of murder in the first degree, committed as follows:

“On the 2nd day of January, 1910, at the Borough of Brooklyn, of the City of New York, in the County of Kings, the said Emerson Colburn and James Hagaman, in and upon one John C. Vickers, feloniously and wilfully did make an assault *652and him, the said John 0. Vickers, did then and there wilfully and feloniously carnally know by the anus of him the said John 0. Vickers, while in the commission of the felony aforesaid, and being then and there engaged in the commission of such felony, the said Emerson Colburn and James Hagaman did then and there on the day and year aforesaid, at the Borough, City and County aforesaid, wilfully and feloniously and of their malice aforethought, mortally choke, smother and suffocate him, the said John C. Vickers, by forcibly covering his head, face, nose and mouth with their hands, and with certain pillows, sheets, coverlets and bed-clothing then and there being found, by forcibly pressing and burying the head, face, nose and mouth of him, the said John 0. Vickers, in and under said pillows, sheets, coverlets and bed-clothing, and by forcibly placing and pressing the head, face, nose and mouth of the said John C. Vickers upon and against said pillows, sheets, coverlets and bed-clothing, and by holding their hands over the mouth and nose of him, the said John 0. Vickers, thereby forcibly closing and obstructing the air passages leading through the nose and mouth into the lungs and vital parts of him, the- said John 0. Vickers, and thereby preventing him from breathing and inhaling air into his lungs, body and vital parts, by reason whereof he, the said John 0. Vickers, then and there on the said day and year aforesaid, at the Borough of Brooklyn, City and County aforesaid, became and was mortally choked, smothered and suffocated, of which said mortal choking, smothering and suffocation, he, the said John 0. Vickers, on the day and year aforesaid at the Borough, City •and County aforesaid did die.

“And so the Grand Jury aforesaid do say that they, the said Emerson Colburn and James Hagaman, him the said John C. Vickers, in the manner and form and by the means aforesaid, on the day and year aforesaid, at the Borough, City and County foresaid, wilfully and feloniously and of their malice aforethought, did kill and murder against the form of the Statute in such case made and provided.

“ Second Count.

“And the Grand Jury of the County of Kings by this indictment further accuse Emerson Colburn and James Haga*653man of the crime of murder in the first degree, committed as follows:

“ And the said Emerson Colburn and James Hagaman, late of the Borough of Brooklyn of the City of New York, in the County aforesaid, on the 2nd day of January, in the year of our Lord one thousand nine hundred and ten, at the Borough, City and County aforesaid, with force and arms in and upon one John C. Vickers, wilfully and feloniously, and of their malice aforethought, did make an assault.

“And they, the said Emerson Colburn and James Hagaman, did then and there wilfully, feloniously and of their malice aforethought, mortally choke, smother and suffocate him,- the said John 0. Vickers, by forcibly covering his head, face, nose and mouth with their hands, and with certain pillows, sheets, coverlets and bedclothing, then and there being found, and by forcibly pressing and burying the head, face, nose and mouth of him, the said John C. Vickers in and under the said pillows, sheets, coverlets and bed-clothing, and by-forcibly placing and pressing the head, face, nose and mouth of the said John C. Vickers upon and against said pillows, sheets, coverlets and bed-clothing, and by holding their hands over the mouth and nose of him, the said John C. Vickers, thereby forcibly closing and obstructing the air passages leading through the nose and mouth into the lungs and vital parts of him, the said John 0. Vickers, and thereby preventing him from breathing and inhaling air into his lungs, body and vital parts by reason whereof he, the said John C. Vickers then and there on the said day and year aforesaid, at the Borough, City and County aforesaid, became and was mortally choked, smothered and suffocated, of which said mortal choking, smothering and suffocation, he, the said John 0. Vickers on the day and year aforesaid, at the Borough, City and County aforesaid did die.

“And so the G-rand Jury aforesaid do say, that they, the said Emerson Colburn and James Hagaman, him the said John 0. Vickers, in the manner and form and by the means aforesaid, on the day and year aforesaid, at the Borough, City and County aforesaid, wilfully and feloniously and of their malice aforethought, did kill and murder against the form of the Statute in such case made and provided.”

*654
      *Hector McGowan Curren,*for the appellant.

*Harry G. Anderson, Assistant District Attorney [Edward A. Freshman, Assistant District Attorney,*and *James C. Cropsey, District Attorney,*with him on the brief], for the respondent.

Jenks, P. J.:

The defendant appeals from a judgment of conviction for sodomy. It is contended that the evidence did not justify the yerdict, and that there are errors of law grave enough to upset the judgment. The evidence for the People is that the act was done in the rented room of the defendant, and that the alleged catamite died at or about the very time of the commission of the crime. There was none other who could give oral testimony of the surrounding circumstances prior and up to the said death save the witness Hagaman, who was indicted with the defendant. Thus, not only the inherent nature of the crime, the circumstances of the commission thereof, but the peculiar feature of the immediate death of the catamite, made it not strange that the evidence relied upon by the People was of that kind termed circumstantial.

But there is no question as to the conflict of evidence, and we have but to consider the sufficiency thereof. We cannot say that it did not justify the verdict.

The defendant and Hagaman were indicted for murder in the first degree. The defendant demanded and was afforded a separate trial on the indictment, which consists of two counts. The first count charges that the defendants did feloniously and willfully assault (a certain person named), continues in the language of the statute against sodomy (Penal Law, § 690), and charges in sufficient words that the defendants when in the commission of such felony committed murder. The second count but charges murder. The learned court instructed the jury that under this indictment they could find the defendant guilty of the crime of sodomy. The appellant contends that as there is no separate count for sodomy, and as that crime is not one of the degrees of homicide, this instruction was error. We think that the point is not well taken. *(People*v. *Miller,*143 App. Div. 251; affd. on opinion below, 202 N. Y. 618.)

*655The questions addressed to the People’s witness, Dr. Wads-worth, included in folios 342-348, read with the statement of that witness at folio 404, did not tend to elicit the commission of another crime not charged in the indictment. The defendant was on trial for murder, and the testimony related to the acts of sodomy as relevant to the death or to the killing of the catamite. This testimony is revolting, and we do not need to discuss it in detail.

We cannot perceive error in the dealings with Hagaman when he was called as a witness by the People. He was, as we have said, indicted with the defendant, but the latter demanded and secured a separate trial. At the outset Hagaman was asked whether he was the man who had been indicted with the defendant and answered: “I claim my right to refuse to answer questions on the ground that I am also a defendant and they might tend to incriminate me.” Counsel for the defendant thereupon moved that the witness be excused from further testifying, but the learned court directed the assistant district attorney to proceed, ruling that the witness had the right “to answer or not as he sees fit.” Thereupon the witness was asked whether he killed (naming the alleged catamite), and answered that he did not. Counsel for the defendant objected, and the court then said: “Pie has a right to refuse. I will tell you that anything you say here may be used against you. You are under indictment for this felony also. You have an absolute right to refuse to answer any question which may be asked you. Having said that, what more can I say ? ” The learned counsel for the defendant protested that the witness was asserting his right in a general way. The court replied: “ He can say, *‘*I refuse to answer ’ to every question put to him. * * * He has a right to assert his privilege at any stage. You [evidently referring to the assistant district attorney] can go on and ask your questions. He has answered that question.” During the colloquy that followed the court said: “If he proclaims his right, I shall sustain it. I give him the warning now that every thing he says • here may be used against him personally, anything which he says may be used against him. * * * He has a right to refuse to answer any question he sees fit. * * * He has a constitu*656tional right to refuse to answer any question. ” And in response to the statement of defendant’s counsel that Hagaman could refuse to answer any question put to him, the court said: *“*That is true. That is his constitutional privilege. The Constitution preserves to you that privilege and right not to incriminate yourself and to refuse to answer any question on the subject-matter of this inquiry.” The assistant district attorney immediately asked, *“*Now, Mr. Hagaman, were you in the room — ” The counsel for the defendant interposed, *“*Objected to. The witness has asserted his privilege. The Court: I will leave it to him.” Thereupon, without protest or objection or assertion of privilege on his part, the witness proceeded to give testimony which, so far as he was concerned, tended to exculpate him. We find no error in this procedure. Hagaman was a witness, not a defendant on trial. The assertion of his ‘ ‘ privilege ” neither relieved him from being called as a witness nor from being questioned. His rights were fully protected by the rulings of the court. (Whart. Crim. Ev. [10th ed. Hilton] §§ 464, 465, and note citing cases; Wigm. Ev. § 2268, citing *inter alia People*v. *Abbot,*19 Wend. 195; Abb. Tr. Brief, Crim. Causes [2d ed.], 321.) If error had been committed in the course permitted it could not avail this defendant. (Wigm. Ev. §§ 2196, 2270; *Cloyes*v. *Thayer,*3 Hill, 564; *People*v. *Brown,*72 N. Y. 573, citing *Cloyes*v. *Thayer, supra.)*

The judgment and orders must be affirmed.

Burr, Thomas, Carr and Rich, JJ., concurred.

Judgment of conviction and orders affirmed.