19 N.Y.S. 865 | N.Y. Sup. Ct. | 1892
Lead Opinion
J. The great number of questions presented by the defendant, (appellant,) including, among others, the contention that the verdict was against the law and against the evidence, and that the indictment itself was materially defective, will necessitate not only an examination of the latter, but also a review of all the evidence in the voluminous record presented.
At the outset a statement of the facts proven will be necessary in order to
The adjuster of the insurance companies, Mr. James W. Stevens, after an •examination of the debris, estimated a sound value of everything of which he could find a trace at $261.25, but on the night of the fire the trunk was thrown out of the window, and the examination upon which Mr. Stevens based his estimate of the sound value was not made until the 10th day of February, 1888, and the premises had been meantime in the possession of the landlady, and were accessible not only to all the lodgers, but were visited by workmen engaged in repairing the damage done by the fire; and it appears that the only experience Mr. Stevens had as to the value of clothing, wearing apparel, and personal effects prior to his engaging in the business of insurance adjuster was that derived from keeping a country store in Staten island; and that, although the defendant had furnished him with the bills of goods which he claimed were destroyed, with the tradesmen’s names, he never took any steps to ascertain whether those goods were really furnished him or not. Subsequently, and in May, 1888, the insurance companies settled the loss by paying $350 to Mr. James M. Lyddy,—at that time counsel for the defendant,—and to whom the policies had been assigned. Some of the lodgers, notably Mrs. Courtney, testified that the defendant was fully dressed, and this may well have been, since the witness testified that at the time she thus described his appearance it was 5 o’clock in the morning; and, since the fire took place between 2 and 3, he had an abundance of time to complete his toi-' let. Evidence of witnesses for the prosecution was given to the effect that the defendant’s manner was calm and collected. Testimony was also offered by the prosecution indicating that the bed in defendant’s room was in a condition that would seem to indicate that it had not been occupied that night, but this is also contradicted by Eoskoph, who says that the bed appeared to have been slept in, and the bed clothing partially turned back; and by William Simpson, a witness called on behalf of the people, who testified as follows: “It looked to me, sir, as if no person had slept in it for any length of time more than a few minutes; or it just appeared to me as if the party,—as if there had been somebody in the bed, but not for a whole night. ” We do not understand that the appellant contends that this evidence was not sufficient to justify the conclusion that the firing of the house was done by him; the claim being, as we take it, that such evidence showed that the motive actuating the prisoner was a desire to defraud the insurance company, and that the evidence did not show beyond a reasonable doubt that it was done with an intent to destroy the building; and therefore that it did not support the indictment for arson in the first degree, but only sustained one for arson in the third degree; and, as the law would not permit a conviction of the latter
Sections 486, 487, and 488 define arson in its three degrees, but reference-need not herein be made to section 487, relating to arson in the second degree. With respect to arson in the first degree, the Penal Code (Section 486) says: “A person who willfully burns or sets on fire in the nighttime either (1) a dwelling house in which there is at the time a human being, or (2) * * *,. is guilty of arson in the first degree. ” Section 488, defining arson in the third degree, says: “A person who willfully burns or sets on fire either (1) a vessel or other vehicle, a building, structure, or other erection, which is at the-time insured against loss or damage by fire, with intent to prejudice the insurer thereof, is guilty of arson in the third degree.” Had we to deal exclusively with these sections of the Penal Code, no doubt would arise but that the view taken by the learned recorder, which was consistently adhered to-throughout the trial, was correct,—that to establish the crime of arson it was-necessary to charge the prisoner with, and to establish by competent evidence, “that the defendant willfully, (that is, intentionally,) did burn or set on fire in the nighttime the premises described in the indictment; and, second, that the premises at the time of burning or setting the same on fire were a dwelling house in which at said time there was a human being. ” Both these questions, he charged, should be answered in the affirmative before the defendant could be convicted of the crime charged. The appellant insists that the Penal Code, by section 490, has added another element which the trial judge deliberately ignored and refused to consider as in any way qualifying or destroying the definition of arson as given in section 486 and 488. This section 490' provides that “the burning of a building under circumstances which show beyond a reasonable doubt that there was no intent to destroy it is not arson. ” It is claimed by the appellant that this section 490 is to be construed as though its language were in fact incorporated in sections 486, 487, and 488; that it is an important and imperative part of each of those sections; and that it declares that, if the intent to destroy the building is not proven beyond a reasonable doubt, the offense is not arson. The learned recorder refused to take-this view of the sweeping effect of section 490, and held, as already shown,, that nothing more was necessary to be proven in the case than that the defendant did willfully or intentionally burn or set on fire in the nighttime the-premises described in the indictment, and that such premises were a dwelling house in which at the time there was a human being; and he refused to rule-that it was incumbent upqn the prosecution to prove, or that it was an essential element of the crime of arson in the first' degree, and necessary to be-inserted in the indictment, that beyond all reasonable doubt the burning or setting on fire was with an “intent to destroy the building.” There can be' no room for discussion, if a conclusion is reached that section 490 introduces.another constituent element of the crime of arson in addition to those contained in the definition to be found in sections 486 and 488, that then this judgment must be reversed, for the reason that it is a well-settled rule of criminal pleading that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offense, and that, if the-“intent to destroy the building” be an absolute prerequisite, it would be necessary to set forth such intent in the indictment itself, and upon the trial to present competent evidence to establish such intent. As stated by the court in People v. Johnson, 1 Parker, Crim. R. 564: “We deem the rule well settled that every fact or circumstance which is a necessary ingredient of the offense:
The question therefore is whether any conviction of the crime of arson can be had in this state, when the indictment is down in the language of section 486 of the Penal Code, defining arson in the first degree, and the evidence shows that the motive for setting fire to a building was to accomplish a result other than the destruction of the building. In every form in which the question could be raised upon the record, the appellant contended below, and he still contends here, that section 490 is to be construed to mean that, unless there is an intent to destroy a building willfully set on fire, such willful setting on fire of such building is not arson. Section 486 of the Penal Code, defining arson in the first degree, is a practical re-enactment of the provisions of the Revised Statutes, (2 Rev. St. p. 657,1st Ed., pt. 4,c. l,tit. 1, § 9;) and prior thereto the law declared “that any person who shall be duly convicted of willfully burning any inhabited dwelling house shall suffer death,” (Rev. Laws 1813, p. 407.) In construing “the act declaring the punishment of certain crimes” (Rev. Laws 1813, p. 407) in the case of People v. Butler, 16 Johns. 203, which arose in 1813, the court, in the course of the opinion, said: “It is well settled that to constitute the crime of arson it is not necessary that the house should be absolutely consumed or burned. It is enough if the fire is applied with a malicious intent, so as to take effect, though only a part is consumed.” In People v. Jones, 2 Edm. Sel. Cas. 86, which arose under the Revised Statutes in 1849,—a case relied upon by the trial judge below,—Edmonds, J., in charging the jury, says: “When it was clearly made out, as it was here, that the tire in the house was willfully done, it was of no consequence what was the motive for or intention of the act; nor was it even necessary to prove that the prisoner knew that the building was inhabited. The fact that it was so was all that the law required to be made out. The motive of the prisoner, then, for perpetrating the offense, or his condition of intoxication, were alike excluded from consideration by the language of the statute defining the crime.” In addition to the statutes and the decisions construing them since 1813, at least in this state, it has never been held necessary, in order to establish the crime of arson—nor was it necessary to constitute arson at common law—to prove that there was an intent to destroy the entire building; nor was it necessary to show that it was wholly consumed; all that was essential was to establish that it was willfully burned; this being subsequently enlarged by the Revised Statutes, which added the words “set on fire,” and framed the statutory definition in practically its present form, so that the crime would thus consist either in willfully burning or setting on fire a building. Were it of any advantage, we might show, in addition to the statutes and the long line of authorities, that all text writers, in discussing what constituted arson, agree substantially with the definition given by Russell on Crimes, (volume 2, p. 1024,) wherein it is said: “The burning of a house necessary to constitute arson at common law must be an actual burning of the whole or some part of the house; * * * but it is not necessary that every part of the house should be wholly consumed, or that the fire should have any continuance; and the offense will be complete though the fire should be put out or go out of itself.” See, also, Rose. Crim. Ev., (8th Ed.) p. 407; Whart. Crim. Law, §. 826.
A strong argument is thus furnished against the contention of the appellant, growing out of the fact that, if the effect claimed by him is given to section 490, it will abrogate and destroy all statutory and well-settled authoritative definitions of the crime of arson. Such a radical change is not to be presumed or inferred from some statutory provision, unless its meaning and bearing are so direct and plain as to leave no option in tlio court, but to give
That some support is to be found for the view that section 490 should be given the sweeping effect claimed for it by the appellant is undoubted. We have the old case of People v. Cotteral, 18 Johns. 115, decided in 1820, in which, in construing the law already referred to, which existed in this state at that time, it was held, in a case where prisoners took hot coal from the fire and burned a hole in the woodwork of the jail for the purpose of facilitating their escape, and, notwithstanding the efforts to put out the 6re, the building was burned, though not totally destroyed, that the prisoners were not guilty of arson, because there was wanting the intent to destroy the building. With respect to this decision, all that need be said is that it has not been followed in this state; and, as already shown, the definition of arson was changed by the Revised Statutes by adding thereto the words “set on fire,” which made it clear that the legislature intended that the views expressed in that case by the judge in respect to its being necessary to have an intent to destroy the building present, were not to be the law of this state. This authority may be regarded, therefore, as obsolete, because, though it was in one or two instances followed by other states, it was finally repudiated by all, so far as our examination shows. Neither has it been accepted as a correct statement of the law by any of the text writers. The remarks in Bishop on Criminal Law, (volume 2, § 26,)—in which it is said that it is found difficult to assent to the doctrine of two American cases, one in New York (reference being had to People v. Cotteral,) and the other in North Carolina, —fairly express the reception with which the case of People v. Cotteral was received by all the authorities to whose attention the case had been called.
The appellant insists, however, that section 490 is part of the definition of what constitutes the crime of arson in the first degree, and therefore the indictment should have alleged the intent, and the evidence on the part of the prosecution should have gone to the extent of proving beyond a reasonable doubt that the prisoner had the intent, at the time that he willfully set fire to the dwelling, of destroying it. It may be here remarked parenthetically that the word “it” in the last sentence of section 490, under the authorities, must be construed to mean not only the entire building, but “any part of it,” the whole being put for a part under a figure of speech. With respect to this contention, we think there are two answers which make perfectly consistent and reconcilable the legislation, and save us from assuming that the legislature was guilty of so unwise an act as to give immunity to those who could be guilty of the crime of setting fire to a dwelling house in which there were human beings, in the dead of night, for the purpose of securing money by defrauding an insurance company. The first is that section 490 is no part of the definition of arson in the first degree, requiring a statement in the indictment of facts showing an intent to destroy the building, or proof of such intent upon the trial; but is a section which, in cases other than willful setting on fire, would temper or mitigate the vigor of the definition, and afford upon the trial an opportunity to a prisoner to avoid the force of
This construction of section 490 was the one given by the learned recorder, and the one contended for by the people upon this appeal, and which, it seems to us, brings it in harmony with the preceding sections. Thus, taken together, they constitute a complete declaration of the law of arson as applied, first, to willful acts of burning and setting on fire of buildings, (sections 486, 487, 488,) and, in section 490, to non willful acts resulting in such burning. Such a construction, moreover, disposes of the contention of appellant that the presence of a motive other than the destruction of the building relieves one who willfully sets on fire a building from criminal liability under an indictment for arson in the first degree. It will be noticed that the learned recorder was consistent in the view he took as to this construction of section 490, if we examine his charge, which was entirely fair and impartial; and the requests submitted by the defendant, which, in respect to the effect to be given to sec
Besides this principal one, many subsidiary questions have been pressed upon our attention, some of which it is necessary briefly to refer to. In this connection it may serve the purpose of clearness if we classify those other errors assigned and consider them in the order in which they respectively arise, taking up — First, those which relate to the indictment; second, the question relating to the qualification of one of the jurors; third, exceptions to the admissibility of evidence; and, fourth, exceptions to the judge’s charge other than those already noticed.
First. The indictment contained two counts, in one of which the defendant and appellant is charged with “feloniously, willfully, and maliciously having set fire to the dwelling house of one Ellen B. Van Duzer, in the
Second. The exception relating to the qualification of the juror Whiting. This juror, after a very thorough examination, was challenged by the people, which was sustained by the court, and an exception taken to the ruling. The law in regard to reviewing such ruling is thus stated, in the case of People v. McQuade, 110 N. Y. 297,18 N. E. Rep. 156: “It seems, therefore, that the Code has restored the law as it originally stood, (section 455, Code Crim. Proe.,) and that the decision of the trial judge on the question of indifference is not review able except in the absence of any evidence to support it, in which case it is an error of law to which an exception lies. ” An examination of the record will show with respect to this juror that there was evidence to support the ruling of the court. If, however, we examine the testimony, we do not think that Whiting by any means qualified himself to act as a juror; and the challenge was properly sustained. To show this it is unnecessary for us to review all the questions put to this juror. One or two will be sufficient, we think, to justify the ruling of the recorder. When asked the question: “Supposing the evidence is entirely circumstantial, then do you know of any reason why yo.u should not sit as a juror?” he answered: “It would have to be very precise and exact. By the Court: Question. What do you mean, that it would have to be very precise an„d exact? Answer. Well, before I would convict a man of arson in the first degree, the evidence would have to be such that there would be no doubt whatever in my mind; very precise and exact. Q. Do you mean to say no reasonable doubt, or no doubt whatever? A. No doubt at all. Q. You would include every doubt? A. Yes, sir. Q. Beasonable and unreasonable? A. It depends entirely on the evidence.” And finally, in answer to the question of the court as follows: “Q. And suppose the court was further to instruct you that, if all the circumstances as they were developed by the evidence in the case ppinted in one direction beyond a reasonable doubt, and that was towards the guilt of
Third. Though many exceptions were taken to the admissibility and exclusion of evidence by the defendant, the exception mainly relied upon and pressed upon our attention was permitting William Simpson, a witness for the people, to state whether or not the bed in which the fire occurred had in fact been slept upon on the night of the 3d of February, 1888, when it is charged the crime was committed. The question was asked: “Now, tell the jury the condition of the bed. Answer. I didn’t look at the bed any more than any part of the room. By the Court: Question. You took a glance of it? A. Yes, sir. Q. Tell how it looked,—its appearance. A. It appeared to me like any other bed. Q. I suppose so. Did it appear as if anybody had recently been sleeping in it?” To this objection was made upon the ground that the witness should testify as to the exact condition of the bed, leaving it for the jury to determine whether anybody slept in it or not. This objection was overruled and exception taken, and the witness answered that it looked to him “as if no person had slept in it for any length of time, more than a few minutes, for it still appeared to me as if the party,—as if there had been somebody in the bed, but not for a whole night.” We do not think that this is open to the objection that ordinarily lies to the expression of a mere opinion. The evident intention of the witness was, in his own way—and from his answer it would appear that he was not overintelligent—to describe just how the bed appeared to him. The question was1 directed to eliciting information as to the condition of the bed, and no objection could be had to a question of that character which sought to elicit such information. The answer given was a natural one from a person who apparently had so indefinite an idea of what was sought from him. To the answer, when given, no exception was taken by a motion to strike out, or in any other form, the answer being allowed to remain, the appellant’s counsel relying on the exception taken to overruling his objection to the question. As the question sought to elicit information which the people were justified in producing before the jury, the objection thereto was not good.
Fourth. As to the exceptions to the judge’s charge other than those already noticed. Most of these exceptions resulted from a failure to correctly apprehend the charge, due, no doubt, to the continuous presentation by the recorder to the jury of the law bearing upon the case, and certain phrases and portions of his language are excepted to, apart from the connection and context of the charge, which, when considered as it was delivered, presents no valid ground for an exception. It is unnecessary to notice all, but the one mainly relied on will show that the criticism made is well founded. Thus exception was taken to the language used by the recorder: “Now, these are facts, it appears to me, but I leave it entirely for you to determine which have been proven here beyond all question.” The language quoted followed a statement of facts about which there was no dispute, namely, the fact that there was a fire in the dwelling house; that there was a fire in the room occupied by the defendant on that occasion, and that the defendant was the only
Barrett, J.,' concurs.
Concurrence Opinion
While concurring in the opinion of Mr. Justice O’Brien, it may not tie inappropriate to add a few words upon the point raised as to the construction to be given to section 490 of the Penal Code. The only difficulty which exists in reference to the legislation as contained in the Penal Code arises from the fact that the codifiers were not content with codifying the law as they found it, and as it had been expounded for over 50 years, but attempted to make plain that which was entirely clear before, and with the result usually attending such efforts of producing confusion and uncertainty. A person who willfully burns or sets on fire a building, structure, erection, vessel, car, or other vehicle is guilty of arson as such crime is defined by the Penal Code. Upon the part of the defendant it is claimed that because of section 490, which is as follows: “The burning of a building under circumstances which show beyond a reasonable doubt that there was no intent to destroy it is not arson,”—the defendant therefore was not guilty of arson. It may very well be claimed that this section has no application to the case at bar because the building in question was not burned. It was merely set on fire, but not destroyed. But it is not necessary to resort to any such special construction. If the claim advanced by the defendant is true, then the definitions of arson as contained in sections 486, 487, and 488 of the Penal Code are expressly repealed by section 490; and as to what is called a fireproof building the crime of arson has been abolished. A person may with impunity set on fire a portion of a building which is fireproof, and not be guilty of the crime of arson. We do not think that the legislature defined arson with so great particularity, and then intended to repeal absolutely the definition. The definition is particular; “A person who willfully burns or