#### The People of the State of New York, Plaintiff, *v.*Clifford H. Bowman, Defendant.

(Supreme Court, Niagara Trial Term,

December, 1912.)

Criminal procedure — indictment — certificate of reasonable doubt — evidence — Penal Law, § 381.

Where, on the trial of an indictment charging defendant with having offered a supervisor money to influence his vote on the question of the selection of an architect for the construction of a county building, many witnesses for the prosecution testify that while said board was in executive session a member stated that on the day alleged in the indictment defendant had offered him over $500 to vote for a certain architect and that defendant, in response to inquiry, replied in effect that he had had the conversation, as stated by the member, but there was nothing to the talk and it did not amount to anything, an application for a certificate of reasonable doubt on the ground that defendant’s statement was a confession made under the influence of fear produced by circumstances equivalent to threats and its reception was prohibited by section 395 of the Code of Criminal Procedure will be denied.

As defendant’s statement was not compulsorily given as testimony upon a hearing, proceeding or investigation by the board of supervisors, but voluntary, he was not entitled to immunity under section 381 of the Penal Law, and his statement was competent on his trial as an admission of certain facts.

Application by defendant for a certificate of reasonable doubt..

Sw W. Dempsey, for defendant.

F. ¡M¡. Aclcerson, district attorney, opposed.

Brown, J.

Upon the trial of the defendant upon an indictment charging him with having on the ninth day of July, 1912, offered to one of the supervisors of ¡Niagara county a sum of money with intent to influence his vote upon the question of the selection of an architect for the construction of a county building then pending before *426such board of supervisors, the district attorney called many witnesses to prove that at a meeting of such board on the fifth day of September, 1912, and while such board was in executive session, Supervisor Krueger stated that the defendant on the ninth day of July, 1912, had offered him upwards of five hundred dollars to vote for a certain architect, whereupon a supervisor asked defendant if he had heard the charges made by Supervisor Krueger, and that the defendant replied that he had heard the charges; "that he was then asked whether they were true. The defendant replied to the effect that he had had the conversation with Supervisor Krueger on July 9, 1912, as stated by Supervisor Krueger, but that there was nothing to the talk; that it did not amount to- anything and other statements of defendant relative to his alleged conversation with Supervisor Krueger on July 9, 1912. All of the testimony as to the statements of the defendant on September 5, 1912, at the meeting of the board of supervisors was seasonably objected to by the defendant upon the ground that it was incompetent, privileged, that they were given and made by defendant under compulsion, that such statements were testimony given by defendant upon the investigation or proceeding of the board to ascertain whether bribery had been committed and that no criminal prosecution could be founded thereon; that defendant by giving such testimony had thereby been granted immunity from prosecution. These objections were all overruled and evidence of such statements received, to which defendant excepted. This application for a certificate admitting defendant to bail pending an appeal is made upon the ground that the admission of the testimony referred to over defendant’s objection presents such prejudicial error that there is a reasonable doubt as to whether the conviction should stand.

The evidence was received upon the theory that the statement of the defendant was an admission of certain facts. Its admissibility was attacked upon two grounds: First, that it was a confession and its receipt in evidence is prohibited by section 395 of the Criminal Code for the reason that it was made under the influence of fear produced by cir*427cumstances equivalent to threats, and, second, that the statement was testimony given under compulsion during an investigation by the board of supervisors of the subject of bribery, and that the giving of such testimony granted immunity to defendant under section 381 of the Penal Law.

Treating the statement as a confession its admissibility is to be determined by the inquiry, was it a voluntary confession or was it forced from the defendant by intimidation, by inquisitorial compulsion, by scaring him into giving the same or by other like improper means, so that it could be said to have been an involuntary confession. Do question was raised upon the trial as to the use of improper means to extort the statement from the defendant, and no request was made that the jury should determine its admissibility by passing upon the question of the statement being given under the influence of fear, and it is not now seen how-such question could well have been raised upon the evidence. The statement was made in response to the simple inquiry, “ Do you deny these charges ? ” The defendant answering, “Do, I do not deny them; there is nothing to them; they can all be explained away.” Many versions of defendant’s precise answer were given by several supervisors, they all agreeing that defendant did say that he did not deny the charges, but varying their testimony as to some declarations following such admission. Do fact or circumstance appearing from which it can be inferred that the statement was made under influence of fear produced by threats, it was admissible in evidence, even though it was a confession.

To entitle defendant to the immunity provided for by section 381 of the Penal Law, the defendant must have been compelled to testify upon a hearing, proceeding or investigation by the board of supervisors. While it is true that such board has authority under section 27 of the County Law to examine any officer of the county or town in relation to the discharge of his official duties, and compel by subpoena the attendance of such officer to so testify, yet it can not be said that defendant was compelled to testify and be a witness against himself. He was not compelled to make the statement; he did not testify. It is only testimony *428so given that must not be used against a defendant. It is the testimony that has been obtained under compulsion that must be rejected. People v. Sharp, 107 N. Y. 427. It is not enough that the statement might have been obtained under compulsion upon oath and then become testimony; the question is, was it so obtained? It can not be claimed that the defendant was compelled to testify in answer to the inquiries propounded to him; in fact he did not testify; no compulsion was exercised in the slightest degree. It is only where a person has been compelled to give testimony damaging to himself that such testimony must be excluded. People ex rel. Hummel v. Davy, 105 App. Div. 603; People v. Kennedy, 159 N. Y. 346; People v. Chapleau, 121 id. 266; People v. Mondon, 103 id. 211; Teachout v. People, 41 id. 7; People v. McMahon, 15 id. 384; Hendrickson v. People, 10 id. 13.

These conclusions make it impossible to certify that there is a reasonable doubt whether the conviction should stand, and the application is denied.

Application denied.