96 N.Y.S. 957 | N.Y. App. Div. | 1906
Lead Opinion
The judgment should be reversed,'the verdict set aside, and a new trial’granted.
The indictment was filed, December 7, 1903, and charged the crime as having been committed November 19,1903, at Little Falls, N. Y- The building, burned was owned by one Oonyne, and occii
The trial- commenced March 17, 1905, and continued until March 24, 1905, when the verdict was' rendered. A motion for a new trial was made upon the minutes of the court, upon the ground that the verdict was contrary to the evidence and the law, and upon exceptions to the admission and rejection of evidence and to the charge. This, motion was denied.
While the record may not show the facts, still it was stated upon the argument that the defendant Jones had been tried and convicted, and was serving his term in State prison, the case having been affirmed by this court (People v. Jones; 100 App. Div. 511) and by the Court, of Appeals (181 N. Y. 516), and that two prior trials of this defendant had been had, resulting in disagreement of the juries. The court, in the course of _the charge, referred to the former trials that had taken place.
We have examined and considered the evidence contained-in this record, and conclude that the verdict was not, within well-established rules, so contrary to or against the weight of the evidence as to require the reversal, of the judgment for that reason. The questions of fact were close, however, as appear not only from an examination of the record but from -the -fact that on two former trials the juries were unable to agree upon a verdict of guilty. This being so, we are called upon to consider carefully the exceptions taken during the trial with a view to determining whether the rights of the defendant were fully protected, or whether his conviction was, or may have been, brought about by reason of error committed by the court in the conduct of the trial. Our attention is called to various alleged errors, which we will consider.
1. For some years prior to 1901 the defendant resided and car- _ ried on business at Fulton, Oswego county, and the defendant Jones was in his employ there. In 1901 the defendant removed to Syracuse and carried on business there for about a year, and the defendant Jones was" in his employ there also. He then removed to Little Falls and went into business there, and so continued until the fire in- question took place, and the defendant
2., The People were allowed to show by the chief of the fire
. 3. The People were allowed to prove-the declarations made by defendant’s witness Moran, ten days after the fire of .November. 10, 1903, that, the oil on the floor of the workshop of -defendant was puf there. “for a purpose.” It was given under the,,claim that it was proper as- affecting Moran’s credibility. It did not, however, tend to'Contradict what he had sworn to on the trial, that he had .used a brush .and. oil in sweeping tile floor. This remark was prejudicial to the .def@tVdant,.and was improperly received as evidence under objection and excéptiorz. v
4; The-admission of evidence with reference to-the demand upon the defendant to allow an examination of Ms goods and Ms refusal* and,- the exclusion nf evidence by defendant’s wife as to directions, given by.her to Jones- as to where he should send the telegram, to defendant in Rochester, were errors' of minor, consequence, under objection and exception, but should be considered with the other more serious ones as calling for a reversal of the'judgment.'
. Other rulings are suggested by-counsel as erroneous, but they call for no particular consideration in thig.opiMoh. - .,:;
The rule is well settled that errors committed iñ a criminal trial should not be disz*egarded, and the judgment- affirmed on- appeal, unless it can be-said such errors, were harmless, and.-could, by no possibility, have prejudiced the defendant. (Stokes v. People, 53
Under this rule we should reverse this judgment and grant a new trial for the' errors hereinbefore referred to.
All concurred, Hiscock, J., on first two grounds only, except Spbing, J., who dissented in an opinion.
Dissenting Opinion
The defendant was indicted for arson with one George Jones and they elected to have separate trials, ánd the conviction of Jones was affirmed by this court (100 App. Div. 511) and also by the Court of Appeals (181 ¡N. Y. 516). The specific charge was the attempted burning of the stock of goods owned by the defendant in Little -Falls, and the motive to obtain the insurance money, for the evidence shows quite clearly that the property was considerably over insured. If the crime was committed, the fire was set by Jones, who was in the employ of the defendant, for the latter was in ¡Rochester at the time. ; .
An examination of the record satisfies me that there was abundant evidence given upon the trial to sustain the verdict of the jury. The trial was protracted, was bitterly contested and- inevitably some improper evidence was received or some proper evidence excluded. It is not a case, however, calling for a microscopic hypercritical .investigation of every exception contained in the record..
The fire set out in the indictment occurred ¡November 19, 1903. There had been a previous fire on the tenth of the same month of these same goods, which had been.stopped, and a claim for damages had been presented to the insurance companies and an investigation was set on foot by representatives of these companies for the purpose of ascertaining., whether the fire was a suspicious one, and if so, the policies were "to be canceled. As a result of this investigation the policies were canceled on the seventeenth, but such cancellation could not become effective within five days. The theory of the prosecution was that the defendant realized the necessity of causing the destruction of his property by fire before the expiration of the five days, and, hence, the fire on the nineteenth while the policies were still in force. '
On the seventeenth and during the explorations of the adjusters
This same class of ¡evidence comprised a part of the alleged objéc-. tionable evidence on ¡the trial,and conviction of Jones, and was-urged strenuously as a reason for. the reversal of the judgment 'of conviction. On that trial Gfirvan, also an agent of one of the insult anee companies, was allowed to testify that Brown, the present defendant, said that a ¡fire had occurred at Fulton while he was. keeping a store at that place. Again, the defendant testified in, behalf of Jones on that trial, and was cross-examined as to these previous fires at considerable length. Jones was in the employ of Brpwn when the fire at Fulton occurred, and- if the evidence is vicious, as is contended, it was equally so against Jones. . In any
Passing that, however, I think, as an original proposition, the evidence was admissible. Certainly evidence pertaining to the fire of November tenth was competent. That was not an unrelated crime in the sense in which that term is used. The same goods were involved in the same- building, and they were in the custody of the same parties, and there was the same excessive insurance which, it is claimed, induced each fire.
The question of the defendant’s motive was an important element in the case of the prosecution- .‘The fact that the insurance companies had canceled their policies to become operative five days after the notice was served upon the defendant, and the fire actually occurred within that brief space of time, was important. The motive of the defendant to burn his property was thus elucidated. The-evidence criticised was elicited while the investigation preceding the cancellation was in progress. The evidence even of the previous ■ fires was a connected part of this scrutiny. It bore upon the question of motive and illustrated the mental operations of the defendant.
The prosecution was not necessarily confined to the proof of the fact tha.t the policies were Canceled. The People were entitled to prove that the companies were justified in annulling them and that the defendant knew the examination was for the purpose of revoking the insurance and he was directly connected with what occurred. The information, in part at least, on which the companies determined to cancel was derived from the defendant and that information the plaintiff was entitled to. have before the jury. The dis- • closure may possibly have tended to inculpate the defendant with some other offense, but that collateral circumstance does not render the evidence inadmissible.
In explanation or illustration of the motives or mental operations of one on trial under an indictment much latitude has been given to tlie prosecution. In. People v. Harris (136 N. Y. 423) the
In Stephen’s Digest of the Law of Evidence (Beers’ if.-Yl ed. art. 8) the principle is thus stated: “ When a person’s conduct is in issue or is deemed Jo be relevant to the.issue, statements-made in Ms presence and hearing by which his conduct is likely to have been affected, are deemed to be relevant.” •
. These inquiries revealed to the defendant that he was suspected of careless management of his property, or of the graver offense which resulted in the former fires. At -the particular juncture of this conversation he may have realized that the policies were to be canceled and he may then have conceived the purpose to burn ■ his goods before the expiration period was reached.
, It is, however, claimed that the defendant should have been permitted to prove that the previous fires were not of incendiary origin. Again it will be useful to turn to the record. Emmett Brown, a
The only pertinence to this evidence must have been to show that the fire was not of incendiary origin. The court, realizing there was no proof justifying that suspicion, pointedly so stated to the counsel for the defendant and the latter with equal" emphasis acquiesced in this construction of the evidence. There was no dissent by the district attorney and thus the court and both parties, openly before the jury, were committed to the proposition that there was no suspicion by reason o'f these former fires and hence the evidence was unnecessary. The most that the defendant could have accomplished by the excluded testimony would have been to disprove in words that. the fire was set by him, and in view of' the disavowal there was no accusation to rebut. ■
A defendant even in a criminal case cannot openly assent to a proposition which governs the course of the trial judge in the reception or exclusion of evidence, and then repudiate the course adopted. He may not deceive the judge and then profit by his duplicity.
It is claimed for the evidence in the prevailing opinion that the purpose was to show that the witness, not the defendant, was responsible for the fire. Ho such claim was suggested on the trial. It was of no importance whose fire it was unless suspicion might have been imputed to the defendant concerning it.
The People were permitted to prove that after the fire some one of the fire department was watching the property or building nights, and it is urged that this evidence is incompetent. Before this evidence was objected to, the proof showed without objection that the firemen were in the building the greater part of the time after the fire and the defendant’s counsel had elicited the fact that “ some more of the fir,e department was in charge at night.” Proof had
The opinion of the chief of the fire -departmentthat a draft would be created by the opening of the trap door and the lowering of the window may have been improperly received, but the fact is self-evident and the admission of the opinion must have been harmless.
Harry Moran was a witness fon the defendant; He had been in-his employ in this building and testified .that- the kerosene oil which. had- been found Upon the floor after the fire of November tenth had been placed there by him to aid in sweeping or cleaning the floor; He testified that he would .let the oil drop from a brush, “ and then we would stamp it'On the floor to get- the rest out so that it wduld not stick the floor up.”
He was- asked on cross-examination if he did not tell Sanders and Bellinger on the morning of November 20, 1903, that the oil “ was put there for a purpose ” and he answered ‘in the negative. Bellinger and Sanders were permitted to contradict Moran as to this specific question. I think it was competent to minimize or destroy the inference properly to be deduced from, his direct examination, that the oil came upon the floor innocently- and naturally, '
The other objections, I think, are linimportant. It is not wise to grant a new trial in a criminal action after a long trial for imma- . terial .error. If. that course is to be adopted few- judgments of conviction will stand. . , ■ f ■
.The judgment of conviction should be affirmed.
Judgment reversed and new trial-ordered.