prohibition thereof, except the statement of the defendant himself, which was denied by several witnesses. It is clear from the facts already stated that the confessions were corroboratedone in nearly every particular and the others in several substantial particulars. The statute does not require corroboration in every respect, in order to authorize a conviction upon confessions, but only in the single particular, "that the crime charged has been committed." (People v. Deacons, 109 N. Y. 374, 377; People v. Jaehne, 103 N. Y. 182, 199.) While we do not sanction the deception practiced by one of the officers in charge of the defendant, the court could not exclude the confessions made to him on that account. Deception was used in order to induce the defendant to tell the truth. No inducement was held out to him to confess guilt unless there was guilt. The confession to the under-sheriff was made to him, not as a public officer, but as a supposed friend. It is not sufficient to exclude a confession by a prisoner, as we have held," that he was under arrest at the time, or that it was made to the officer in whose custody he was, or in answer to questions put to him, or that it was made under the hope or promise of a benefit of a collateral nature." (Cox v. People, 80 N. Y. 500, 515.) Confessions induced by the use of decoy letters, by the false assertion that some of the accomplices of the prisoner were in custody, or made to a detective disguised as a confederate, or upon the promise that they will not be disclosed, have been received in evidence with the sanction of courts of high authority. (Campbell v. Commonwealth, 84 Pa. St. 187; Commonwealth v. Knapp, 9 Pick. 496; Commonwealth v. Tuckerman, 10 Gray, 173; State v. McKean, 36 Iowa, 343; State v. Fastner, 43 Iowa, 474.)

Cautious and hesitating as courts have always been in regard to confessions made by a person when under arrest to those in authority over him, they have not gone so far as to exclude them simply because they were procured by deception, provided they were voluntarily made. (People v. Wentz, 37 N. Y. 303.)

They are careful, however, to leave the credibility of the witness who practiced the deception and the circumstances under which the confessions were made to the consideration of the jury. The test is whether the prisoner had any inducement to tell a falsehood against himself, or felt compelled to speak for any reason when he preferred to remain silent. (Balbo v. People, 80 N. Y. 484, 499; Murphy v. People, 63 N. Y. 590; Commonwealth v. Knapp, supra; Wharton Criminal Ev. [9th ed.] sec. 658.)

son.

In all cases inquiry should be made whether the defendant spoke through fear, or in the expectation of immunity, and when he is under arrest it should also be asked whether he spoke to the magistrate, or to the officer in charge, or in their presence, because he felt that he was compelled to for any reaThe competency of a confession is to be determined by the trial court upon the facts in evidence at the time it is offered. It is proper, and such was the course pursued in this case, to allow a preliminary examination by the defendant's counsel to test its competency before it is received. After it is received, if a question of fact arises as to its voluntary character, the jury should be instructed to wholly disregard it, unless they find that it was voluntarily made, without threat or menace by acts, words or situation, and without compulsion, real or apprehended, and without the promise, express or implied, that the defendant should not be prosecuted, or that he should be punished less severely.

The question of fact whether any of the confessions fell within the prohibition of the statute or of the rules of evidence was submitted to the jury and they were instructed to disregard them if they were made under the influence of fear produced by actual or covert threats, or through promises, acts of intimidation or other unlawful means and unless they were voluntary, fairly obtained and not procured by inquisitorial compulsion or other improper methods. The defendant cannot justly complain of the course thus pursued by the trial judge, which was

authorized by a recent decision of this court. (People v. Cassidy, 133 N. Y. 612, 613.)

The confessions, made separately to the three prisoners, were competent, and the credibility of the witnesses was for the jury. There is no evidence that any of these witnesses was under the influence of threats or hope or that the defendant's statements to them were not wholly voluntary. While the confessions differ in some substantial particulars, they agree in others of the utmost importance. The situation and condition of the body, the location of the stone wall, hat, axe and potato hill with the potatoes lying on top, the fact that the cows were out and that an axe was needed to fix the fence and other facts proved beyond doubt, are of peculiar significance when considered in connection with the confessions.

The charge of the court was impartial, clear and comprehensive. At its close the counsel for the defendant stated that they had no exception to it and nothing but commendation for it. The record is free from reversible error. The verdict was not against the weight of evidence nor against law, and justice does not require a new trial.

The judgment should, therefore, be affirmed.

PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT, HAIGHT and MARTIN, JJ., concur.

Judgment of conviction affirmed.

Court of Appeals.

November 10, 1903.
PEOPLE v. ADAMS.

(176 N. Y. 351.)

1. CONSTITUTIONAL LAW-PERSONAL RIGHTS.

Articles 4 and 5 of the amendments to the Constitution of the United States relating to personal rights do not apply to actions in the courts of the State of New York.

2. EVIDENCE-ADMISSIBILITY ON CRIMINAL TRIAL OF PRIVATE PAPERS ALLEGED TO HAVE BEEN UNLAWFULLY OBTAINED.

The court when engaged in the trial of a criminal case will not take notice of the manner in which witnesses have possessed themselves of private papers or other articles of personal property, which are material and are properly offered in evidence.

3. SAME WHEN ADMISSION OF PRIVATE PAPERS NOT VIOLATIVE OF CONSTITUTIONAL GUARANTY AGAINST COMPELLING PRISONER TO BE A WITNESS AGAINST HIMSELF-CONST., Art. 1, Sec. 6.

The admission in evidence upon the trial of an indictment, under section 344a of the Penal Code, relating to policy playing, of private papers and property belonging to the defendant, alleged to have been unlawfully seized by police officers and introduced by the prosecution for the purpose of establishing his handwriting on certain policy slips, and to show that the office in which they were found was occupied by him, does not compel him to become a witness against himself in violation of section 6 of article 1 of the Constitution of the State of New York.

4. CRIMES-POLICY GAMBLING CONSTITUTIONALITY OF SECTIONS 344a AND 344b OF PENAL CODE-WHAT PUBLIC OFFICERS MAY LAWFULLY BE IN POSSESSION OF APPARATUS USED IN GAME OF POLICY.

Section 344a of the Penal Code, creating the crime of "policy "gambling and making it unlawful for any person to have in his possession the apparatus therefor, is not an unauthorized interference with the ownership of private property, and is constitutional. Section 344b, making the possession by any person other than a public officer of such apparatus "presumptive evidence of possession thereof knowingly and in violation of" the preceding section, creates no offense, but simply prescribes a rule of evidence within the power of the Legislature, and is also constitutional. Neither section depends upon the other, each being complete in itself. The public officers intended to be excepted by the Legislature are those who, in the discharge of their official duties, are necessarily at times the custodians of the apparatus, and this provision, therefore, is not objectionable as class legislation.

5. CONSTITUTIONALITY OF INDETERMINATE SENTENCE LAW-PENAL CODE, SEC. 687a.

Section 687a of the Penal Code, fixing a maximum and minimum sentence for prisoners, must be considered in connection with the law relating to prisons, permitting the parole of such prisoners, is a merciful exercise of legislative power, and is constitutional. 6. EVIDENCE-NON-EXISTENCE OF SEARCH WARRANT IMMATERIAL.

The refusal of the trial court to allow evidence as to the nonexistence of a search warrant at the time of the removal of apparatus from the place claimed to have been occupied by the defendant as an office is not error, such apparatus being competent evidence and the manner of obtaining possession of it being immaterial.

People v. Adams, 85 App. Div. 390,17 N. Y. Crim. Rep. 443, affirmed.

APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered July 13, 1903, which affirmed a judgment of a Trial Term entered upon a verdict convicting the defendant of the crime of knowingly having possession of a writing, paper and document representing and being a record of a chance, share and interest in numbers sold in a gambling game commonly called "policy," and of knowingly having possession of papers and devices such as are commonly used in carrying on and playing the game called "policy," in violation of section 344a of the Penal Code. The sections of the Penal Code under which conviction was had read as follows:

"§ 344a. A person who keeps, occupies or uses, or permits to be kept, occupied or used, a place, building, room, table, establishment or apparatus for policy playing or for the sale of what are commonly called 'lottery policies,' or who delivers or receives money or other valuable consideration in playing policy, or in aiding in the playing thereof, or for what is commonly called a 'lottery policy,' or for any writing, paper or document in the nature of a bet, wager or insurance upon the drawing or drawn numbers of any public or private lottery; or who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, drawn or to be