People v. Alex

• Decision Date: 10 January 1933
• Citation: 260 N.Y. 425,183 N.E. 906
• Parties: PEOPLE v. ALEX.
• Court: New York Court of Appeals Court of Appeals

260 N.Y. 425

183 N.E. 906

PEOPLE

v.ALEX.

Court of Appeals of New York.

Jan. 10, 1933.

Michael Alex was convicted of first degree murder, and he appeals.

Reversed, and new trial ordered.

Appeal from Queens County Court.

Richard J. Barry, of Long Island City, David M. Wolff, of Jamaica, and Joseph Lonardo, of Long Island City, for appellant.

Charles S. Colden, Dist. Atty., of Flushing (Mordecai Konowitz, of New York City, of counsel), for the People.

HUBBS, J.

On June 15, 1931, at about 11 o'clock at night, the defendant was arrested in New York City and thereafter charged with the crime of murder in the first degree. The next day, June 16th at about 3 o'clock in the afternoon, he signed a confession in which he confessed to the commission of the crime. He had neither been arraigned nor given the privilege of consulting counsel before signing the confession.

The next morning after signing the confession, June 17th, he was arraigned in County Court. He was thereafter indicted and brought to trial in County Court. During the trial the assistant district attorney offered the written confession in evidence. Counsel for the defendant objected to its receipt in evidence upon the ground that it was not voluntarily made; that it had been extorted from defendant by the police by means of severe beatings and threats which they made of further physical punishment if he refused to confess and repeat the statements in regard to the commission of the crime which they had made to him. The trial court permitted a preliminary examination for the purpose of determining whether the confession should be received in evidence.

The defendant testified in detail in regard to beatings which he claimed the police officers inflicted upon him. He testified in substance that he was told by the police what he must state in a confession, and was warned that, if he did not, they would continue to beat him; that he made the confession, and stated in it what he was told to state by the police because he could not stand the pain inflicted and because of fear of further physical punishment, and that the confession was false, as he was innocent of the crime charged. He also testified that, as a result of the beatings, marks were left upon his body.

He was interrogated by his counsel as to what occurred when he was arraigned in County Court thirty-six hours after his arrest. By proper questions, counsel sought to establish that at that time defendant complained to the county judge that he had been beaten by the police; that he ‘ripped’ off his coat and shirt in the court room in the presence of the judge, and offered to show the judge the bruises on his body, and asked the judge to look at his back. The assistant district attorney objected to the questions, and the court sustained the objections and refused to permit the defendant to testify in regard to what took place in the presence of the court upon the arraignment.

The defense called as witnesses an assistant district attorney and the calendar clerk of the district attorney's office, who were present in court when the defendant was arraigned. Substantially the same questions were asked those witnesses, in an effort to establish that the defendant had complained to the court that he had been beaten by the police and that there were marks upon his body. The trial court sustained objections made by the assistant district attorney, and refused to permit the witnesses to testify upon that subject.

Thereafter the confession was received in evidence over the objection and exception of defendant's counsel.

Defendant's conviction rests almost entirely upon his confessions. The evidence sought to be elicited from the defendant and the two witnesses was competent and pertinent, and should have been received. People v. Barbato, 254 N. Y. 170, 173, 172 N. E. 458.

The general rule is that the evidence of a witness cannot be corroborated by proof that the witness made the same statement on a prior occasion when not under oath. There are, however, well-established exceptions to the rule. Thus evidence that the injured person made timely complaint of the injury is properly received in a criminal trial where the defendant is charged with rape, robbery, or larceny. People v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880,58 Am. Rep. 530; 2 Wigmore on Evidence (2d Ed.) § 1142.

It is under the principle involved in such cases that...