#### PEOPLE v. MACKINDER et al.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

1. Criminal Law—Confessions.

A confession is admissible where the district attorney stated to defendant that if he made any statement it must be voluntary, and without threats or promises, and not until after he had stated that he understood that any statement he might make was to be voluntary, unaffected by any threat or promise of any kind, though a police officer, in whose custody defendant was, had previously used strong language to induce defendant to confess, but the confession was not made at that time.

2. Robbery—Evidence.

On a trial for robbery, evidence that defendant, soon after the time of robbery, had a quantity of money, is admissible.

Appeal from court of sessions, Onondaga county.

Albert Mackinder and Frank Mackinder were convicted of robbery in the first degree, and from the judgment of conviction, and from an order denying a motion for a new trial, they appeal.

Affirmed.

The defendants were jointly indicted and tried together at a court of sessions held in and for the county of Onondaga. They were found guilty, and sentenced to imprisonment in the state prison at Auburn for fourteen years. The crime of which they were convicted was alleged to have been committed on the 13th day of May, 1892, in the town of Oamillus, Onondaga county, N. Y. On the morning of that day, Royal E. Fox, who was cashier of the Solvey Process Company, and one James Houser, left the office of that company to go to Split Rock quarry to pay the men employed by the company, who were at work at that place. They went in a road cart drawn by one horse, and had with them $2,290.60 in envelopes in two wooden boxes. When they were passing along a private road to the quarry, they were stopped by two masked men, armed with revolvers, who commanded them to hold up their hands, bound Fox and Houser, left them thus bound, and took the boxes and the money away with them. This transaction occurred at about nine minutes of 10 of the morning of that day. Subsequently, and on or about the 14th day of August, 1892, the defendants were arrested, and on the next day both made confessions admitting the commission of the crime.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Hoyt & Farrington, for appellants.

B. J. Shove and T. E. Hancock, for the People.

MARTIN, J.

The first and most important question involved upon this appeal relates to the admission in evidence of the confessions made by the appellants. They contend that these confessions were made under duress, were obtained by threats, were involuntary, and therefore inadmissible. If these confessions were made under the influence of fear produced by threats, then it is manifest that the court erred in admitting them in evidence, and. as there was no other sufficient evidence upon which to convict the defendants, the judgment must be reversed. Thus, the important question to be determined is whether the confessions made by the defendants were voluntary, or were produced by fear engendered by threats of the officers having them in charge. On the trial, considerable evidence was given upon the question. The *843evidence of the defendants was to the effect that these confessions were obtained by threats, and, if believed, was perhaps sufficient to show that the confessions were involuntary, and produced by threats and promises made by the officers in whose charge they were. The defendant Albert Mackinder testified: That he was in the custody of the chief of police of Syracuse. That he told him that if he did not tell him the truth he would give him 20 years for perjury, and that he would apply to the court for him, and get' him off with a light sentence; that he would make him out with a light sentence, and there was no good in his lying about it; that if he lied he would give him 20 years for lying. That the chief of police called him up, and asked him if he was ready to tell the truth. That he told him he had told the truth. That the chief swore at him, and called him a liar. That the chief said that there was no good of his lying about this, for those two men had been out, and investigated this case, and if he did not tell them all about it he would give him 20 years. That the two men were Mr. Hoxsie and Mr. Hancock. That the chief said he would lock him up till he did tell; that it would be better for him to-tell him, and he would apply to the court, and get him off with a light sentence. That, upon the strength of what the chief said to him, he signed the confession offered. The defendant Frank testified: That he was arrested on the forenoon of August 14th. That he had some conversation with the chief of police on that day, and that on the next day he asked the chief what he was arrested for, and he told him for highway robbery, and an attempt at murder. That he then asked him if he could give bail, and he said he would not need bail for some time. That, on that day, Officer Kratz came where he was, and asked him if he had anything to say, to which the defendant Frank replied, “Ho,” that he did not know anything. That he was then taken to the office of the chief of police, where Becker, Kratz, Hoxsie, Hancock, and Wright were. Kratz and Becker were police officers; Hoxsie, the sheriff; Hancock, the district attorney; and Wright, the chief of police. That it was about 10 o’clock in the forenoon. That Kratz and Becker said there was no use of his holding back, for they had all the evidence in the world against him; that they had a man that saw the gray hairs in his head. That Mr. Wright asked him if he had anything to say. That he said he did not know anything. That he said he had an affidavit of the whole thing. That he asked him to read it; and he read over one affidavit. That he-told him, if he put anything down against him, to put down the same as the rest. That he wrote it down, and he signed it. That he did not read it over to him after he made it out. That that was all that took place with reference to the confessions. That Mr. Wright told him that his brother George had testified, and said that he had traded revolvers for blankets. That, in signing that paper making the statement that was offered, he acted upon, and was induced to sign it upon, the statements that had been made to-him by Becker and Kratz with reference to the disclosures that. *844had been made by his brother, threats in reference to the affidavits, and believing that it would be better for him than to withhold his statement. On the other hand, the people called as witnesses Officer Kratz, Chief of Police Wright, and Sheriff Hoxsie, who testified as to what transpired prior to and at the time these confessions were made and signed by the appellants. The evidence ■of these witnesses tended to show quite conclusively that the confessions admitted in evidence were voluntary; were not made under the influence of fear produced by threats, or induced by any promise by such officers. It was proved by several of these witnesses that before either of these confessions was made or signed the district attorney stated to the defendant malting it, that, before he made any statement, he wanted him to know that he did it of his own free will and accord, voluntarily, without any threats or promises of any name or nature, and the district attorney askéd him if he understood it, and he said he did, and that it was after such statement to each of the defendants that the confessions ■offered in evidence were made, read over to each of the defendants, and signed by him. The chief of police admitted that, on the day when Albert Mackinder made the confession introduced in evidence, he said something to him about committing perjury; that he read him the law on the subject, and told him that he was a liar,—but testified that he had no recollection of telling him he would be arrested for perjury, and thinks he did not, but would not undertake to say he did not; that he thought he told them it would be better for them to tell the truth; that he did not say that if they would tell the'truth he would use his influence with the court to have their sentences lightened, but that he told Albert that the best thing for him to do was to tell the truth; that all thieves, from bank robbers down to clothesline thieves, squealed when they got in tight places; that he thought he did not say to Albert that he would ask the court for mercy for him if he would tell the truth about it, but that he would not swear that he did or did not; that he did not say that, in substance, to both of them. He also testified that this conversation was before the defendant Albert was informed of the charge against him, and related to his statement as to his whereabouts, and where he obtained the money which he spent in going west, buying furniture, paying house rent, etc.; that he was not informed of the charge until the district attorney and the sheriff were present; and that it was after the district attorney had said to him that, before he made any statement, he wanted him to know that he did it of his own free will and accord, voluntarily, and without any threats or promises of any name or nature, that the confession was made. After the introduction of the evidence upon both sides bearing upon the circumstances under which these confessions were made, the court admitted them in evidence. In submitting the case to the jury, the court said:

> “It was the duty of the court, at the outset, to pass upon the question, particularly, whether these instruments or statements called ‘confessions’ *845should be received in evidence or not. The court has performed what it deemed its duty in that regard, and they have been received, but that is not conclusive upon you. You are now, as a jury, to pass upon the question whether they do come within the law permitting them to be received as evidence against the defendants; and I 'will read you the statute itself, which lays down the rule as to the confessions, and their reception. ‘A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless—and this is the exception-made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.’ In other words, that the crime itself has been committed by somebody. The authorities go a little further than the statute itself, and authorities which I think this-court is bound to regard. The statute itself says, as I have read, that such confessions can be given,- unless made under the influence of fear prqduced by threats. That is one thing. Or, unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor. That is another thing. But the cases themselves go a little further, and say, in effect, that, if they are induced by promises or reward,—particularly, by anybody having immediate connection with the case,—such inducement may vitiate the confession. Now, gentlemen, you have heard the testimony on this branch of the subject very fully.' You are able to sift it out, and reach some conclusion as to what the truth is about the obtaining of the confessions. The fact that these defendants were in confinement is not duress, in the sense of making the confession valueless. The fact that they were prisoners, of itself, does not vitiate the confessions. The question is whether the confessions-were made voluntarily, without threats, without inducements, without promises, whether they had been imprisoned one day or more. But you are to take into consideration all the facts and circumstances surrounding their imprisonment, to determine the question whether there were threats or inducements or promises. If you believe these confessions should be rejected, as valueless, and as against the law, as I have stated it to you, then, as I said before, it would be your duty to acquit these defendants on the evidence that is in this case. If, on the other hand, you accept and receive in evidence- and conclude that these confessions were properly obtained, and are right and proper evidence in this case, then it is for you to say whether they substantiate the charge beyond a reasonable doubt, taken in connection with other testimony in the case,—substantiate the charge that these defendants were guilty of the crime charged in the indictment. One other thing I must call your attention to: Each confession is to be taken, if taken at all, as against the one who makes it, and not as against the other.”

While, perhaps, the evidence shows that the chief of police who-had these defendants in charge was more zealous than wise in-trying to obtain from the defendant Albert Mackinder a true statement as to where he obtained the money that he had expended in traveling, in the purchase of furniture, and for other purposes, and that his language to the prisoner was not commendable, and while it may be that if the defendant Albert had then been informed of the charge made against him, and his confession had been procured at that time, and before he was apprised of the fact that no promises or threats should be considered by him in making such confession, it would have been inadmissible, yet, as the evidence was to the effect that the confession was not made at that time, and not until he had been expressly informed by the district attorney that if he made any statement it must be voluntary, made of his own free will and accord, and without any. threats or promises, and not until after he had stated that he understood that any state*846ment he might make was to be voluntary, unaffected by any threat or promise oí any kind, we are of the opinion that the court properly admitted the confessions in evidence, and properly submitted to the jury the question whether they were obtained through the influence of fear produced by threats, or by reason of any promises made by the officers having them in charge. Section 395 of the Code of Criminal Procedure provides:

> “A confession of a defendant, whether in the course of judicial proceedings ■or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor.”

In People v. Mondon, 103 N. Y. 211, 219, 8 N. E. 496, it was said:

> “The rule thus established (section 395) is founded upon the common law rule on the subject of confessions, but is much more definite and stringent. The rule as laid down in Hawkins is stated to be that ‘a confession, whether made under an official examination, or in discourse with private persons, which is obtained from a defendant either by the flattery of hope, or by the impression of fear, however slightly the emotions may be implanted, is not admissible in evidence.’ By the section of the Code quoted, the fear which is required to exclude the confession must be a fear produced by threats, .and the hope must be based upon the stipulation of the district attorney, promising immunity from prosecution for the crime confessed."

A confession made by a defendant in a criminal action, voluntarily, is competent evidence against him, although made' when he was under arrest. Cox v. People, 80 N. Y. 500, 515; People v. McGloin, 91 N. Y. 241; People v. Druse, 103 N. Y. 655, 8 N. E. 733; People v. Chapleau, 121 *N.*Y. 266, 24 N. E. 469. A statement by a police officer to a prisoner, after she knew she was suspected of the crime, that “they had found enough to convict her, and she might as well own up,” was held not to be a “threat,” within the meaning of section 395. People v. McCallam, 3 N. Y. Cr. R. 189. See, also, People v. Wentz, 37 N. Y. 303; Cox v. People, 80 N. Y. 500; People v. McGloin, 91 N. Y. 241. Where there is no conflict in the evidence as to the circumstances under which such statements were made, the question of their admissibility in evidence should be decided by the court, and not left to the jury. Willett v. People, 27 Hun, 469. But where there is a conflict of testimony, or room for doubt, the court should submit the question to the jury, with instructions that, if they are satisfied that the confession was procured by such inducements, they should disregard and reject it. People v. Kurtz, 42 Hun, 335; People v. Fox, 121 N. Y. 449, 453, 24 N. E. 923; People v. Cassidy, 133 N. Y. 612, 30 N. E. 1003. Within the doctrine of these authorities, we think it is obvious that the question whether the confessions of the defendants were improperly procured was for the jury; that it was justified in finding that they were not, and consequently justified in finding the defendants guilty of the offense charged in the indictment.

The appellants also contend that the court erred in permitting the witness George A. Mackinder to testify as to the number of pistols he sold the defendant Albert Mackinder. The question was asked and answered before any objection was taken, and there was *847no motion to strike out the answer. Moreover, we think the evidence was admissible, and that the exception was not well taken.

On the cross-examination of the witness George A. Mackinder, who had testified to having sold his brother Albert two pistols .about *2\*months before the robbery, he was asked:

> “What did you let him have the pistols for? (Objected to.) The Court: Do you mean whether he sold them to him or not? Mr. Kennedy: No, sir; the purpose he let him have the pistols for. Mr. Hancock: I object to that. The Court: The objection is sustained. (Exception taken by defendants’ counsel.)”

The defendants contend that the court erred in rejecting this -evidence. As I construe the question of the defendants’ counsel, it called for the purpose or motive of George in letting his brother have the pistols. It is not quite apparent how evidence of his purpose was admissible. If it was, the defendants’ counsel should have explained to the court how. If, however, I am wrong in construing the object of the question, and it should be construed as calling for the purpose of Albert in buying them, then it would seem that the witness could not have known his purpose unless Albert stated what it was; and thus the evidence would have been, .at most, the declaration of the defendant in his own favor. But, be that as it may, if it be admitted that this evidence ought to have been received in explanation of the evidence of the witness given upon his direct examination, and that it was error to exclude it, it is obvious that the error was harmless, as the court clearly and positively instructed the jury that, unless it found that the defendants’ confessions were voluntary, they could not be convicted. As section 542 of the Code of Criminal Procedure provides that the court must give judgment, without regard to technical errors, or to defects or to exceptions which do not affect the substantial rights of the parties, it follows, we think, that if this ruling was erroneous, it should be disregarded, as it could not have affected the substantial rights of the defendants.

On the trial the prosecution asked the witness Purnell, who had testified to having seen the defendant Frank Mackinder after the robbery, and the saíne month he was arrested, the following question: “Now, state whether he had a quantity of money he was displaying there in your shop.” This was objected to as “incompetent and improper and immaterial, and too remote.” The objection was overruled, and the defendants excepted. We think there was> no error in receiving this evidence.

The people was also permitted, under the defendants’ objection that the evidence was incompetent, immaterial, and not a part of the res gestae, to prove by the witness Hoxsie that, in a conversation which took place after the statement or confession had been made by Frank Mackinder, he had said to him, “Frank, would you have shot those men that morning?” to which he said, “I don’t know. I was pretty nervy that morning.” From an examination of the appeal book, it would seem that this conversation took place .at the time that the statement by Frank Mackinder was made, and *848amounted at least to an admission that he was there at the time the offense was committed. We think the evidence was admissible. If not, we are unable to see how, under all the evidence in the case, its reception was prejudicial to the defendant. Section 542 of the Code of Criminal Procedure provides: “Alter hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” If the confessions made by the defendants were believed by the jury, they were entirely sufficient to justify the verdict, and, if they were not believed, the jury was instructed by the court that it could not find a verdict against them; so that the question of the guilt or innocence of the defendants was made dependent upon the validity of the confessions, and this evidence could have in no way affected the result. People v. Chacon, 102 N. Y. 669, 6 N. E. 303; People v. Dimick, 107 N. Y. 13, 14 N. E. 178.

We have examined the defendants’ exception to the remarks of the court during the discussion as to the admission of the confessions of Frank Mackinder, but find nothing in that exception that requires us to disturb the judgment, and discover nothing in the statement of the court that could have been prejudicial to the defendants.

The following appears in the appeal book:

> “Mr. Kennedy: I desire to have it go upon the record that counsel has made a statement that a young man of slight build, about twenty-six years old, got upon a train with a revolver, and committed one of the most infamous crimes known, and that he is now in prison for ninety-nine years. Mr. Hancock: More or less. Mr. Kennedy: I desire to except to that statement, and I now ask that a juror be withdrawn, and that the case go over the term. The Court: That is denied. Exception taken by defendants’ counsel.”

From this statement, we are unable to discover that any error was committed, or that the court erred in denying the defendants’ request.

Haring now considered all the exceptions suggested by the learned counsel for the defendants upon their brief, and having found none that would justify us in reversing the judgment, it follows that the judgment and order denying the defendants’ motion for a new trial should be affirmed.

Conviction and judgment of the court of sessions of Onondaga county affirmed, and after the judgment is entered in the judgment book a certified copy of this entry shall be forthwith remitted to the clerk of Onondaga county, with whom the original judgment roll is filed, in accordance with section 547 of the Code of Criminal Procedure. All concur.