75 N.Y.S. 950 | N.Y. App. Div. | 1902
The defendant was indicted -for arson in the first degree for feloniously burning a dwelling house in the city of New York on the night of January 30, 1901. Upon the trial evidence was given tending to show that between three and four o’clock in the morning of the 30th of January, 1901, a fire was discovered in the cellar of the five-story brick tenement house known as No. 855 East Eighty-eighth street which was occupied by twenty-six families.
Evidence was given tending to- show that defendant had been a tenant. of the building and was dispossessed on the- 1st day of August, 1900; that on being evicted he declared that he would “ fix the landlord and the house by putting it ablaze, and if it wouldn’t blaze he would pour kerosene oil upon it;.” that on the 14th day of January, 1901, he was seen in the hallway and frightened some small boys who were watching him up the stairs out of sight,
If the fire was of incendiary origin there was doubtless sufficient evidence to connect the defendant with the crime. We think, however, that the testimony utterly fails to show that the crime of arson was committed by anybody. Not a single fact or circumstance is shown to indicate that the fire on either of these occasions did not originate from natural causes or through accident. The defendant’s conduct on the fourteenth of January, as disclosed by the evidence, is most suspicious, and if he at that time made an unsuccessful attempt to burn this same building it would be competent and cogent evidence tending to connect him with the subsequent fire, if of incendiary origin. It does not appear, however, where the fire was on the fourteenth of January. It was not shown whether it was in the cellar or garret, in a public hall near where he was seen or to which he had access or in a private apartment to which he did not have access.
Taking the testimony “ there was a fire in the house,” which is all the information the witnesses were asked to give, literally the fire may have been in the furnace or in a stove. But probably it should be inferred that the house was on fire, but as has been observed, neither its location nor the attendant circumstances are given.
Concerning the fire on the thirtieth of January, no evidence is given with reference to the use that was made of the cellar, or whether the fire originated near a furnace, a lighted gas jet, or other light or fire from which it might have been naturally or accidentally caused. Nor was any evidence given as to how long before the fire was discovered any one had been in the cellar. Furthermore, it does not appear how the defendant or any one else who did not live in the building could have obtained entrance thereto without breaking a door, window or other opening. There is no evidence that a door was open or unlocked or that an entrance was forced, and we are not at liberty to indulge in presumptions or take judicial notice of those matters.
Too much has been taken for granted on the trial of this case,
We do not find that the defendant in any manner waived his right to insist that, the evidence is insufficient in this regard to ivarrant the conviction. At the close of the plaintiff’s case and at the close of all the evidence he duly moved for an acquittal and excepted to the refusal of the court to so direct the jury. The learned trial judge in his charge to the jury assumed that the fire was of incendiary origin, and no exception ivas taken to this charge, but we think that does not supply the want of evidence of the criminal origin of the fire. . -
The judgment must be reversed and a -new-trial granted.
Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.
Judgment reversed, new trial granted.