RAPALLO, J.

The appellant was convicted at a Court of Oyer and Terminer held in Herkimer county in May, 1885, of the crime of murder in the first degree for killing one John Wishart, and was sentenced to death. On appeal to the Supreme Court, the conviction was affirmed at a General Term held at Syracuse in November, 1885. BOARDMAN and HARDIN, JJ., delivered opinions for affirmance, and FOLLETT, J., delivered a dissenting opinion. The case now comes before us on appeal from the judgment of affirmance.

Numerous exceptions were taken at the trial, and after a careful examination, we concur in the conclusions reached by the Supreme Court as to all of the points raised on behalf of the appellant, except the one upon which the learned judges who heard the case at General Term differed in opinion, and we shall, therefore, confine our discussion to that point.

The question in difference was the admissibility in evidence, upon the trial of the prisoner, of statements alleged to have been made by him on his examination under oath at the coroner's inquest, held upon the body of the deceased after it had been found, which was a considerable time subsequent to the killing. The evidence connecting him with the crime, aside from his alleged confessions to members of his family and afterward to the officers having him in custody, was circumstantial, but no question as to its sufficiency arises here. After the finding of the body of the deceased, the defendant was arrested, without warrant, as the suspected murderer. While he was thus in custody, the coroner impaneled a jury and held an inquest, and the defendant was called as a witness before the inquest, and was examined by the district attorney and by the coroner. The prisoner was an ignorant Italian laborer, unfamiliar with the English language. He was unattended by counsel, and it does not appear that he was in any manner informed of his rights, or that he was not bound to answer questions tending to criminate him. He was twice examined; on the first occasion the examination was taken by questions put either by the district attorney or by the coroner, and the result written down by the coroner, who then read the evidence over to him, line by line, and asked him if he understood it and if it was the truth, and he said it was, and the coroner then re-swore him to the deposition.

The coroner testifies that he came to the conclusion that the defendant did not understand English well enough to be examined; that on taking the evidence which was signed by him, no interpreter was used; that the interpreter was used on a subsequent day; that the defendant made no corrections or suggestions while the deposition was being read to him; that he (the coroner) became satisfied, after taking defendant's testimony on the first day, that it ought to be taken through an interpreter, and thought they might get it a little better and a little fuller.

The court thereupon reserved its decision as to the admissibility of the evidence until the opening of the court on the following day.

The coroner was then asked various questions as to what the defendant had stated at the coroner's inquest, as to his having been on the ground where the body of the deceased was found, as to where he had last seen the deceased alive, as to where deceased was then going, whether he was alone, as to the whereabouts of the defendant on the day the deceased disappeared, as to threats made by deceased to have the defendant arrested for marrying the daughter of deceased while having another wife living, as to disputes between deceased and defendant on that subject, and other questions tending to establish the theory of the prosecution as to the motive of the defendant in committing the murder. Some of the statements of the prisoner on his examination, as testified to by the coroner, confirmed the theory of the prosecution as to the hostile feeling between the prisoner and the deceased, and the quarrels which had taken place between them, but the others were denials of implicating circumstances.

Each of the questions thus put to the coroner, as to what the prisoner had testified to, was specifically objected to. The objections were overruled and exceptions duly taken.

The deposition taken by the coroner, as before stated, was not offered in evidence, but the coroner in giving his testimony referred to it to refresh his recollection with respect to the testimony given by the defendant on the inquest.

The coroner also testified that a club, which was found near the body of deceased, was produced at the inquest, before the taking of testimony began; that the defendant had then been informed that he was charged with the murder of deceased, and on the production of the club exclaimed "me no kill old John with that club," and appeared nervous and excited.

It thus appears that when the prisoner was called upon to make his statements on oath before the coroner, he stood in the attitude of an accused person, and was required to answer for himself, as a party, and not as a mere witness to aid the coroner in investigating the cause of the death of the deceased. The cause of death was evident. The body had been examined, with the marks of violence plainly apparent; the bruised head, the fractured skull, and the broken club lying near it with hair still adhering to it. It was evident that a crime had been committed. From the time that a felonious homicide was established, the proceedings assumed the form of a criminal investigation. ( Hendrickson v. People, per GARDINER, J., 10 N.Y. 13, 49.) By section 777 of the Code of Criminal Procedure it became the duty of the jury, if the death was occasioned by criminal means, to find who was guilty thereof, and on such finding the coroner was empowered to issue his warrant for the arrest of the guilty party, if not already in custody. From that time the prisoner occupied the position of a person accused of crime, and his situation was similar to that of such a person before an examining magistrate, "and although the tribunal might be different, yet, upon principle, his rights would be the same in both cases" ( 10 N.Y. 48), and in Teachout v. People ( 41 N.Y. 9). WOODRUFF, J., in commenting upon the case of McMahon v. People ( 15 N.Y. 384), says: "The coroner was acting substantially in the place of an examining magistrate, and the fact that the prisoner was held under arrest without warrant, could not make his protection against such an inquisition less imperative;" and at page 12 the same learned judge says, that declarations made under examination, with such a charge depending, should be excluded except where obedience to the statutory precautions is observed.

The admissibility of examinations in evidence upon the trial of the offender, has been passed upon in many English cases, but the whole subject has been so thoroughly discussed in three cases in this court that it is not necessary to refer particularly to the English authorities. In Hendrickson v. People ( 10 N.Y. 13) the wife of the defendant died suddenly in the morning, and in the evening of the same day a coroner's inquest was held. The defendant was called and sworn as a witness upon the inquest. At that time it did not appear that any crime had been committed, or that the defendant had been charged with any crime, or even suspected, except so far as the nature of some of the questions asked of him might indicate such a suspicion. On his subsequent trial on an indictment for the murder of his wife, the statements made by him at the coroner's inquest were held admissible, on the ground that he was not examined as a party charged with the crime; that it had not appeared even that a crime had been committed, and that he had simply testified as a witness on the inquiry as to the cause of the death.

In People v. McMahon ( 15 N.Y. 384) the defendant was arrested by a constable, without warrant, on a charge of having murdered his wife. The constable took him before the coroner, who was holding an inquest on the body, by whom he was sworn and examined as a witness. It was held that the evidence thus given was not admissible on the prisoner's trial for the murder, and his conviction was reversed upon that ground. In the judgment, all the judges who heard the case concurred.

The next case is Teachout v. People ( 41 N.Y. 7). In that case the defendant appeared at the coroner's inquest, in pursuance of a subpoena to testify, and voluntarily attended. He was not under arrest, but was informed by one Dalley that it was charged that his wife had been poisoned and that he would be arrested for the crime. Before he was sworn he was informed by the coroner that there were rumors that his wife came to her death by foul means and that some of those rumors implicated him, and that he was not obliged to testify unless he chose. He said he had no objection to telling all he knew. The learned judge delivering the opinion preludes it by a reference to these facts as showing that the statements made were voluntary in every legal sense, and held that a mere consciousness of being suspected of a crime did not so disqualify him that his testimony, in other respects freely and voluntarily given, before the coroner, could not be used against him on his trial on a charge, subsequently made, of such crime. On that ground he held the evidence properly admitted, at the same time referring with approval to the McMahon Case, and distinctly limiting the rule of exclusion to cases within its bounds.

The present case is identical in all its essential features with the McMahon Case. In both cases the prisoner had been arrested without warrant, as a suspected murderer. While under arrest he was taken by the officer having him in charge, before the coroner's inquest, and examined on oath as to circumstances tending to connect him with the crime. The present case is even more clear than the McMahon Case, for here the homicide had been shown before he was examined, the prisoner was informed that he was charged with the murder, the alleged instrument of death was produced, and the prisoner was interrogated as to his motive for the alleged killing, his whereabouts, and other inculpating matters.

There has been no case overruling the McMahon Case, and we are not referred to any decision, either in this country or in England, at variance with it, although there are many which sustain it, and even go farther in the direction of excluding examinations, under oath, before a magistrate, of persons afterward put upon trial on criminal charges. ( Rex v. Lewis, 6 C. P. 161; Rex v. Davis, id. 177; Wheatland's Case, 8 id. 238; Haworth's Case, 4 id. 254, note.) The court at General Term in the present case seem to regard the case of People v. McGloin ( 91 N.Y. 241), as sustaining the course pursued by the prosecution, and consequently overruling the McMahon Case, but a brief examination will show that there is no analogy between the two cases. The case of McGloin was not that of the examination of a prisoner on oath before a magistrate before whom he was taken involuntarily, while in custody, and interrogated by the magistrate, who, to all appearance, had power to require him to answer, but it was a clear case of a voluntary confession. The prisoner was not taken before any magistrate. While under arrest he said to the inspector of police, who had him in charge, that he would make a statement. The inspector then said he would send for Coroner Herman to take it. The coroner was then sent for and came to police head-quarters and took down in writing the confession dictated by the prisoner, the coroner asking no questions and not acting in any official capacity, but as a mere amanuensis to take down the confession and prove the contents. Whether sworn or unsworn is immaterial, as the confession was in no respect compulsory, but was voluntarily offered by the prisoner. It was not taken before a magistrate upon a judicial investigation against the person accused of the commission of the crime. It lacked this essential element of the McMahon Case, and is in no respect in conflict with it. Section 395 of the Code of Criminal Procedure is also referred to as superseding the McMahon Case. That section provides that "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." The rule thus established 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. But I do not apprehend that this provision was intended to apply to any but voluntary confessions, or to change the statutory rules relating to the examination of prisoners charged with crime. The Criminal Code retains the provisions of the Revised Statutes applicable to such examinations, which provisions are framed with reference to the constitutional provision that no person shall in any criminal case be compelled to be a witness against himself. (Art. 1, § 6.)

In all the cases in which reference has been made to the subject, it seems to be conceded that an examination of a person arrested on a criminal charge, conducted in violation of the statutory provisions, would not be admissible in evidence against him on his trial for the offense. To take a prisoner before a magistrate, swear him, subject him to a minute interrogation as to the circumstances relied upon as evidence of his guilt, and then use such an examination on his trial, would be a departure from our system of criminal jurisprudence which should not be tolerated, and whether the investigation were conducted before a committing magistrate, or before a coroner's jury, could make no substantial difference, provided it appeared that a homicide had been committed, and the prisoner was brought before the inquest as an accused person, and the object of the inquisition was to ascertain his guilt. The McMahon Case held distinctly that an examination thus conducted before a coroner's jury, could not be used on the trial of the prisoner, and after that decision has stood for nearly a quarter of a century as the law of the State, it would require, for the purpose of overruling it, something much more definite than any thing that can be found in the Penal Code or the Code of Criminal Procedure. There is nothing indefinite in the doctrine of that case as defined and limited in the Teachout Case, nor am I able to see that an adherence to it would in any way embarrass the administration of criminal justice in this State, while on the other hand it is not difficult to see that a departure from it would be subversive of some of the fundamental principles of our criminal jurisprudence. Nor is there any thing in the exclusion of such evidence inconsistent with section 395 of the Code. The evidence sought to be excluded is not a confession, certainly not a voluntary confession, but an official examination on oath, of the prisoner while in custody, in which, although he admits some facts in regard to the relations between him and the deceased, he denies all knowledge of the crime, he denies having seen the deceased after he saw him on the railroad track on the day when he left his home, and he denies ever having been on the ground where the body was found. These denials were much more important to the prosecution than any of the admissions contained in the examination, for they were met by the evidence of the prisoner's subsequent admissions to Sheriff Brown, which, if true, showed that his previous statements under oath before the coroner's inquest were false. This mode of examining and involving a prisoner arrested on a charge of crime is not sanctioned by the provision of section 395 of the Penal Code, which declares voluntary confessions made "in the course of judicial proceedings" admissible in evidence. Those words do not necessarily refer to a judicial examination of the prisoner on the subject of the charge made against him. The object of section 395 is to declare what confessions shall be deemed voluntary, and therefore admissible, whether made out of court to a private person, or in court, or in the course of any judicial proceeding between any parties. The examination of a prisoner on oath before a magistrate, on the subject of the charge made against him, is condemned in the McMahon Case, and those upon which it rests, in the Teachout Case, and by the statutes which prohibit such examinations. (Code of Crim. Pro., §§ 188, 196, 198; 2 R.S. 708, §§ 14, 15, 16.)

The three cases which have been cited, the Hendrickson Case, the McMahon Case, and the Teachout Case, draw the line sharply, and define clearly in what cases the testimony of a witness examined before a coroner's inquest can be used on his subsequent trial, and in what cases it cannot. When a coroner's inquest is held before it has been ascertained that a crime has been committed, or before any person has been arrested charged with the crime, and a witness is called and sworn before the coroner's jury, the testimony of that witness, should he afterward be charged with the crime, may be used against him on his trial, and the mere fact that at the time of his examination he was aware that a crime was suspected, and that he was suspected of being the criminal, will not prevent his being regarded as a mere witness, whose testimony may be afterward given in evidence against himself. If he desires to protect himself he must claim his privilege. But if, at the time of his examination, it appears that a crime has been committed and that he is in custody as the supposed criminal, he is not regarded merely as a witness, but as a party accused, called before a tribunal vested with power to investigate preliminarily the question of his guilt, and he is to be treated in the same manner as if brought before a committing magistrate, and an examination not taken in conformity with the statute cannot be used against him on his trial for the offense.

On this ground the judgment should be reversed and a new trial ordered.

All concur, except RUGER, Ch. J., and EARL, J., dissenting.

Judgment reversed.