(239 N. Y. 411) PEOPLE v. FARINI. (146 N.E.) (Court of Appeals of New York. Feb. 3, 1925.) 1. Statutes 243-Legislative intent to effect change in Code should be in unmistakable terms. To effect a change in practice that has been general since adoption of Code and allowed before that time, intention of Legislature should be expressed in clear and unmistakable terms. 2. Statutes 243-Code of Criminal Procedure to be interpreted in view of existing practice. Court had no jurisdiction to make this order, [2, 3] Originally the removal of criminal actions prosecuted by indictment from one court to another was by means of the writ of certiorari. Under the English practice Code of Criminal Procedure is to be in- the application might be made by the crown terpreted in view of existing practice. Supreme Court had jurisdiction, on application of district attorney, without notice to defendant, to remove an indictment for murder from county court into Supreme Court, in view of Code Cr. Proc. §§ 22, 343, 344, relating to removal of indictment on application of defendant, not depriving Supreme Court of its power of removal where application is made by prosecution. 4. Criminal law 1186(4)-Conviction affirmed where court of appeals unable to say that rulings of trial judge deprived defendant of a fair trial. Court of Appeals was required to affirm a conviction, in view of Code Cr. Proc. § 542, though disapproving various acts and rulings of trial judge, where it could not say that they deprived defendant of a fair trial. Appeal from Kings County Court. S. J. Siegel and Edward S. Napolis, both of New York City, for appellant. C. J. Dodd, Dist. Atty., of Brooklyn (Henry J. Walsh and James I. Cuff, both of Brooklyn, of counsel), for the People. for the removal from a lower court to the King's Bench without notice, in which case it was granted as a matter of right. Or it might be made by a private prosecutor or by the defendant and then cause therefor must be shown. A similar power of removal on the application of the district attorney or of the defendant was possessed by our Supreme Court, except that it may be doubtful whether the former might demand it as a matter of right. Jones v. People, 79 N. Y. 45. In 1881 came our Code of Criminal Procedure. It is to be interpreted in view of existing practice. By it the Supreme Court was declared to have jurisdiction to try any indictment found in any County Court sent to it by the latter court "or which has been removed from any court into the Supreme Court, if, in the opinion of that court, it is proper to be tried therein." Code Cr. Proc. 22. Were this all no question would arise. The precise method now to be used was altered. The writ of certiorari was abolished. The authority of the Supreme Court is asserted by an order. But there could be no doubt that this authority which had existed for years remained. The Code, however, contains certain other provisions: "All writs and other proceedings heretofore existing, for the removal, upon the application of the defendant, of criminal actions prosecuted by indictment, from one court to another before trial, are abolished." Code Cr. Proc. § 343. "A criminal action, prosecuted by indictment, may at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases: 1. From a County Court * the Supreme Court held in the same county for good cause shown." Code Cr. Proc. § 344. to ANDREWS, J. [1] This defendant was indicted for the crime of murder in the first degree in the County Court of Kings county. He was then arraigned, and pleaded "not guilty." Thereafter an order was made by the Supreme Court upon the application of the district attorney, without notice to the defendant, removing the indictment into that court. There he was subsequently tried This is simply a regulation of the method and convicted. It is said that the Supreme of removal when the application is made by the defendant. It is not an attempt by implication to deprive the Supreme Court of the well-understood power it had always possessed where the application was made by the prosecution. Nor is it the first attempt to regulate such procedure where the motion was made by the defendant. In England it had already been done. In this state also. 2 R. S. pp. 731, 732, §§ 76-83; 3 R. S. (6th Ed.) p. 1027. The provisions contained in these statutes are not unlike the present provisions in the Code of Criminal Procedure. Yet they were not held to limit the power of removal on the application of the people. "In reference to the act of 1829, it may raise a slight inference that the Legislature by which it was passed supposed that the certiorari could be issued only at the instance of the defendant. But that could not have the effect to abrogate a pre-existing right of the people, and one, too, which might be so very essential to the due administration of justice under circumstances of frequent occurrence. In this state, where the people have acquired the rights originally appertaining to the crown of England in criminal cases, except where they are inconsistent with our form of government, or have been expressly abrogated (and neither is the case here), it is safe to conclude that the well-settled rights of the public have not been taken away by a remote inference." People v. Baker, 3 Parker's Cr. R. 181, 190. A like construction should again be given to the present provisions, and we hold that no attempt has been made to deprive the Supreme Court of the power to remove to itself indictments pending in a lower court or to change the existing rules on that subject when the application for the removal is made by the people. [4] Other questions are discussed by the defendant. We are of the opinion that the finding of the jury is supported by the weight of evidence. While we disapprove of various acts and rulings of the trial judge, we cannot say that they were of such substantial importance that the defendant was thereby deprived of a fair trial. Some errors were committed, but none were sufficient to justify a reversal of the judgment of the court below. The judgment appealed from must be affirmed under the authority of section 542 of the Code of Criminal Procedure. HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, and LEHMAN, JJ., concur. Judgment of conviction affirmed. (239 N. Y. 416) PEOPLE v. PANTANO. (Court of Appeals of New York. Feb. 3, 1925.) 1. Homicide 29-One forced to give information by threats of persons committing homicide in acting thereon not guilty of murder. One giving information as to usual customs of bank messengers in transporting funds, with view of assisting in commission of robbery on promise of reward, is guilty participant in conspiracy, and liable for resulting murder, but if forced to give information by threats to destroy him and his family, element of willful participation necessary to conviction is wanting. 2. Criminal law 538 (3)-Voluntary admission of giving information on promise of reward conclusively establishes guilt of murder committed in acting thereon. Voluntary statement, admitting giving of information as to methods of bank messengers in transporting funds on promise of percentage of proceeds of robbery, in execution of which messengers were murdered, would conclusively establish guilt. 3. Criminal law ~522(1)—Confession induced by fear, caused by express or implied threat, inadmissible. Defendant's admission that he had given information as to bank messengers' methods in transporting funds on promise of percentage of proceeds of robbery, in commission of which messengers were murdered, was inadmissible, if made because of fear produced by expressed or implied threat. 4. Criminal law 736(2)-Whether confession was induced by fear caused by threat of electrocution held for jury. Whether defendant's admission that he gave information as to methods of bank messengers in transporting funds on promise of percentage of proceeds of robbery, in commission of which ence of fear produced by threat that police capmessengers were killed, was made under influtain's influence would bring about his electrocution, held for jury. 5. Criminal law 781 (5), 1173(2)-Refusal to charge that jury must disregard confession, if obtained under circumstances showing it involuntary, held reversible error. defendant's statement that he gave informaRefusal to charge that jury must disregard tion as to bank messengers' methods of transporting funds on promise of percentage of messengers were murdered, if obtained under proceeds of robbery, in commission of which circumstances rendering it inadmissible as involuntary confession of guilt, held reversible error. Pound, Crane, and Andrews, JJ., dissenting. (146 N.E.) Appeal from Trial Term, Kings County. Anthony Joseph Pantano was convicted of first degree murder, and appeals. Reversed and new trial ordered. John E. Ruston and Marshall Snyder, both of Brooklyn, for appellant. Charles J. Dodd, Dist. Atty., of Brooklyn (Henry J. Walsh, of Brooklyn, and James I. Cuff, of New York City, of counsel), for the People. cent. of the proceeds of the robbery. If that the defendant was conclusively established, statement was voluntarily given, the guilt of but the defendant maintained on the witness stand that he recanted his story of compulsion, and made the incriminating statements because police detectives told him that he had got the police captain "all red hot"; "that the police captain was a powerful man"; and that even if the defendant's story of giving the information under compulsion was true, he would "burn" unless he would satisfy the police captain and "get under his wing" by saying that "you went into this thing of your own free will for money." [3] The Legislature, recognizing that an apparent admission of guilt may sometimes be obtained under circumstances which render its probative value so doubtful that it should be disregarded by the jury, has declared that a confession is inadmissible "when made under the influence of fear produced by threats." LEHMAN, J. [1] The defendant Pantano undoubtedly furnished to the other defendants, who have been convicted of the murder of William S. Barlow, information as to the usual customs and methods of the messengers of the West End Bank in transporting the funds of the bank for deposit in another bank. Based upon this information, the other defendants concocted a plan to rob the messengers, and in carrying out this plan they killed the messengers. At the time of [4] A threat may be implied as well as exthe murder the defendant Pantano was en- pressed, and the fear engendered is alike in gaged in an entirely innocent occupation each case. If the defendant's story is true, some distance away from the scene of the the jury might have inferred that, in the decrime. He had no connection with the rob- tectives' allusions to the anger of the police bery or the murder, except through the giv-captain at the defendant's adherence to his ing of this information. He did not run away or hide after he learned of the murder. Until his arrest he had borne an excellent reputation, and there is no evidence of association with evil characters other than his association with the men who have been found guilty of the murder of the bank messengers. Inferentially, it appears that he has received no share of the proceeds of the robbery, though there is some evidence that he was promised that he would receive some part thereafter. story of compulsion, in their allusions to the police captain's influence, and the result that would follow from the defendant's failure to say that he went into the conspiracy of his own free will for money, even though that was untrue, there was implied a threat that the police captain's influence would be used to bring about the anticipated result. If the jury found that threat was implied, and that the statement was made under the influence of fear produced by this threat, then the statement was inadmissible. This was a question of fact, and the trial justice was in error when he held that there was no evidence to sustain a finding that the statement should be disregarded on this ground. [5] We do not think that such error may was a confession of guilt. His story told on the witness stand was false if the statement was true. The jury was bound to weigh the one against the other, and the defendant was entitled to a charge to the jury that they must disregard the statement completely if, upon the evidence, they found it was obtained under circumstances that would render it inadmissible under the statutory rule. [2] Whether or not he was to receive any share of the proceeds of the robbery is perhaps the crucial question in this case. If he gave the information with a view to assisting in the commission of a robbery upon promise of reward, he was a guilty partici-be disregarded. The statement on its face pant in the conspiracy and criminally liable for the results of that conspiracy; if, as he claims, he gave that information without any purpose of assisting in a robbery, without promise of reward, and because he was forced to do so by the threats of evil-doers to destroy his family and himself, then the element of willful participation in the conspiracy is wanting, and he is the victim, rather than the perpetrator, of a wrong. When arrested he first maintained his innocence of any willful wrong, and insisted that his complicity was involuntary, but subsequently he made a statement in which he admitted that he had given the information upon a promise that he should receive 10 per Placing our decision for reversal upon this ground, we are not called upon to consider the other rulings which the defendant claims deprived him of a fair trial. The judgment of conviction should be reversed, and a new trial ordered. HISCOCK, C. J., and CARDOZO and Mc- ter 660 of the Laws of 1922, which amended LAUGHLIN, JJ., concur. section 141 of the Insurance Law and added POUND, CRANE, and ANDREWS, JJ., thereto sections 141-a and 141-b. These secdissent. Judgment reversed, etc. (239 N. Y. 420) tions provide for and regulate organizations "for the purpose of suggesting, approving or making rates for fire insurance upon risks within this state" and is the only such organization within the state. The term "rate" as used in these sections includes "all the ele IMPORTERS' & EXPORTERS' INS. Co. v. ments and factors forming the basis of com RHOADES. (Court of Appeals of New York. Feb. 3, 1925.) puting the consideration for insurance." Section 141, par. 1. The law provides that “the schedules, rules and methods employed in computing the rates charged for fire insurance shall be reasonable." It further provides that every such rating organization "shall ad Insurance 14-Rating company, organized under statute, not entitled to refuse its service, on insurer's refusal to be bound by commit to membership or shall furnish its service any's rules. Rating association, organized under Insurance Law, § 141, as amended by Laws 1922, c. 660, which also added sections 141-a and 141-b, to said Insurance Law, held not entitled to exclude, from its service, insurance companies authorized to transact business in state, because of their refusal to be bound by rules as to commissions, brokerages, and number of agencies; the association existing to furnish rate-making service only. without discrimination to any person, association or corporation authorized to transact the business of fire insurance within this state, applying therefor." The rating plan and list of insurance companies represented by the rating organization must be filed with the superintendent of insurance. The purpose of a rating organization is to compute uniform standard nondiscriminatory rates for fire insurance upon all classes of risks Appeal from Supreme Court, Appellate Di- written by its members. It is fairly stated vision, First Department. Petition for a peremptory writ of mandamus by the Importers' & Exporters' Insurance Company, on behalf of itself and others, against Sumner Rhoades, as treasurer of the New York Fire Insurance Rating Organization, to require defendant to accept petitioner and others as subscribers to its service. From an order of Appellate Division (209 App. Div. 689, 205 N. Y. S. 628) reversing order of Special Term which granted motion for peremptory mandamus, petitioner appeals. Reversed, and order of Special Term affirmed. Nathan L. Miller and William F. Unger, both of New York City, for appellant. David Rumsey and Louis J. Wolff, both of New York City, for respondent. POUND, J. The only question herein, as appears by the opinion below and the argument on appeal, is whether appellant, a corporation authorized to transact the business of fire insurance within this state, is entitled as matter of law to the service of the New York Fire Insurance Rating Organization. Has it a substantial statutory right to avail itself of such services which has been denied without just legal cause? The question is properly here. People ex rel. Flynn v. Woods, 218 N. Y. 124, 112 N. E. 915; Weidenfeld v. Keppler, 176 N. Y. 562, 68 N. E. 1125. The rating organization is organized under chap in paragraph 2 of section 141-a of the law which reads as follows: "Every such rating organization shall apply minimum class rates, formally adopted, to all risks within this state rated by such organization for fire insurance, or after an inspection of a risk, fix and promulgate specific rates therefor which rates shall be based upon schedules formally adopted by such rating organization for the various classes of risks rated by it and cept where the class of risks or the local confiled with the superintendent of insurance, exditions may in the opinion of the superintendent of insurance justify flat or nonschedule ratings. Every such rating organization shall make an inspection of every such risk which make a written survey thereof which shall be is separately or specifically rated and shall a permanent record in the office of such organization." filed as Its power to make rules is limited by the statute to "rules affecting such rates and charges of the rating organization” or “rules * * employed in computing the rates," and its members must comply with such rules and fix their rates accordingly, except that a yearly higher or lower rate may be fixed pursuant to section 141-a, par. 3. But the superintendent of insurance may remove discriminations and adjust improper rates. The rating organization is a development of insurance arising out of the difficulties of rate making based on the experience of a single company. The purpose of the law is to give all corporations authorized to trans (146 N.E.) act the business of fire insurance in this state | sential element of scientific rate fixing. The the privilege of membership in such an or- amounts paid for premiums as divided beganization. The privilege is a valuable one. tween the insurance company and agents and Both as a matter of range of experience and brokers have a direct connection with the of expense it is impracticable for one com- rate itself. It may well be that voluntary pany to maintain a rating organization. rating associations have in the past been conThe Merritt Legislative Report (Report, trolling such subjects. But the distinction is Merritt Com. Assembly Doc. 1911, p. 40) says: obvious between a rating association existThe practical result (of the dif- ing under the statute and one existing soleficulty of the problem of rating) is that it is ly by agreement of members. The latter may impossible to make rates properly on the basis-pick and choose; the former must furnish its of a single company's experience. The experi- service to any corporation authorized to ence even of the largest companies is not ex- transact the business of fire insurance withtensive enough to insure the proper working of the law of averages on all classes. It is very natural then, and from this point of view desirable, that the companies should for this purpose, combine; for not only can they thus make rates more effectively, but since rates on the same classes are needed by all, it would be a useless expense to have the work duplicated." The Lockwood Legislative Report (Report Housing Committee, Legislative Document, 1922, p. 224) says: in the state which agrees to be bound by the rules affecting rates to be paid for insurance. The latter may extend the scope of its rules according to its own will. The former may not exclude eligibles by adopting rules which go beyond the fixing of rates to be charged by the companies. Information as to the amounts allowed for commissions and brokerage may be valuable. The fixing of such sums by the rating commission is another matter. A combination of companies to fix rates without express authority may be of questionable legality. Respondent exists by virtue of law. "Rate making upon the endless items of property that enter into the insurance business is exceedingly difficult and expensive. It requires a large organization and expert knowlWe must read into the act a legislative edge and experience. No single company, however large, can afford to make rates for itself purpose indirectly but effectively to limit alone. That and the fact that the business commissions in fire insurance as it has in was one peculiarly affected with a public trust, life insurance (Insurance Law [Cons. Laws, have always been the burden of the arguments ch. 28] § 97) in order to uphold the power advanced by the insurance companies for being of the rating organization to regulate these permitted to combine in these rate-making matters. It is no answer to say that the combodies. Refusal of access to the rates virtual-panies are not bound to seek the services of ly means exclusion of the company from competition." a rating organization and may act independently of it. They may do so only at a disadvantage which the law does not contemplate. If the rating organization is in effect to be clothed with the revolutionary attributes of a state agency to regulate commissions, the legislative authority should be explicit in terms and the court should not smuggle such a grant into the law under the guise of lib The respondent, as an incident to its rule making power, refuses to furnish its service to appellant unless it will agree to the terms imposed on members signatory to its membership agreement and maintain and observe rules of the rating organization not only as to the rules employed in making rates but also as to commissions, brokerages, and num-eral construction. ber of agencies. Appellant refuses to sign an agreement to be bound by such rules, for the reason that it desires the benefit of the rating organization without assenting to the control of its business methods thereby. It has been held below that commissions, brokerages, and number of agencies are so intimately allied with the general scheme of "making rates for fire insurance upon risks within the state" as to be an integral part thereof; that the rule to be employed in computing a rate essentially depends on the net return to the company. The rates, however, are the charges to be made by the insurer to the insured for fire insurance. Information as to the net returns to the companies on the insurance written by them may be an es The question is not altogether one of discrimination, although the learned justice at Special Term properly says that the rule in controversy constitutes an illegal discrimination against those companies which, claiming the right to service under the statute, prefer to run their business in a different way than that made mandatory on members. If such companies have the right to the service of the rating organization, the plea of equality and fairness in matters ultra vires the organization should not prevail. People ex rel. New York Fire Exch. v. Phillips, 237 N. Y. 167, 142 N. E. 574. The question is one of the statutory power of the rating organization to make rules. If we assume that the Legislature, if it had seen fit to do so, might |