
    The People of the State of New York, Resp’ts, v. Hugh O’Neil, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 29, 1889.)
    
    1. Criminal law—Arson in third degree—Admissibility oe evidence— Res gesme.
    After the fire occurred (for the causing of which defendant was indicted) a compromised adjustment of the loss sustained by reason of the fire was had with several insurance companies. Defendant took part in that adjustment and executed an affidavit in conjunction with the treasurer of the company (of which defendant was president), whose building was burned. Reference therein was made to a certain schedule as to the value of the property destroyed, and it was stated that the cause of the fire, in the affiant’s opinion, was “ of incendiary origin.” That affidavit-,, and a receipt executed by the defendant to one of the insurance companies for its proportion of the compromise adjustment, was received in evidence against defendant’s objection and exception. Held, that the evidence was properly received. That it bore upon the question of motive or lack of motive in the defendant. That they were directly connected with the fire, and the defendant being connected with, and interested in, their making, they formed part of the res gestee.
    
    2. Same—Affidavits made by president of a corporation, as such; ADMISSIBLE AGAINST HIM INDIVIDUALLY.
    These proofs of loss, though subscribed and sworn to by defendant in. his official capacity as president, were the statements of the individual. Their execution jointly with the treasurer in nowise affected the question of their admissibility, as evidence against defendant. *
    3. Same—Circumstantial evidence—What admissible as.
    When the proof relied upon is circumstantial, the law requires it to be such as to satisfy the jurors, beyond any reasonable doubt, of the guilt of the defendant, and no facts or circumstances should be excluded from the jury, which have relation to or bear upon the principal fact. Rot facts which owe their origin to subsequent events, but such as were of necessity connected with, or would have no existence except for the principal fact.
    
      4. Same—Evidence of demeanor and conduct admissible.
    It was competent to show the demeanor and conduct of the defendant at the time of the fire, and immediately thereafter, when engaged in matters connected with the fire, in the course and disposition of which-he was principally interested and a prominent actor.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment entered upon a verdict rendered by a jury at the Cortland oyer and terminer, convicting the defendant of the crime of arson in the third degree, charged in the indictment.
    
      Louis Marshall, for app’lt; Horace L. Bronson, district-attorney, for resp’ts.
    
      
       Affirming 17 N. Y. State Rep., 956.
    
   Gray, J.

The defendant, was convicted of the crime of arson in the third degree, at the Cortland oyer and terminer, and has appealed here from the affirmance by the general term of the judgment of conviction. The property burned consisted of a building, used as a carriage shop or factory, in the village of Cortland in this state.

The appellant’s counsel has insisted upon the existence of errors in this record; some of which we shall consider, although they were discussed at the general term. They relate to the reception of evidence and to the charge to the jury. He argues that it was error to admit in evidence certain proofs of loss, which were made for the insurance companies after the fire. They were executed by the defendant, as president of The O’Neil Wagon Company (limited), conjointly with one Couger, as its treasurer, and were prepared after an adjustment and compromise had been made of the losses between defendant on the one side, and the representatives of the insurance companies on the other.

' In order to understand the situation of matters when these proofs of loss were made and the relevancy of the proofs, a very brief review of the case made will suffice.

The defendant had been engaged, in partnership with other parties, in the manufacturing and sale of wagons at Cortland, under the style of The O’Neil Wagon Company. In October, 1883, as the result of disputes between him and his associates, it was agreed by the latter to sell to him all of their interest in the business, subject to the payment of the debts owing by the firm ; and he, at once, set about forming-some new connections in some other locality. In December, 1883, he formed, with various persons, in Springville, • in this state, a company called The O’Neil Wagon Company (limited), of which he became the president. By an agreement with his new associates, the stock, machinery and fixtures, etc., on hand were sold to the company at the sum of upwards of $36,000. A committee of three of the Springville directors had come over to Cortland for the purpose of taking an inventory of the property; but desisted, after commencing the task, on being informed by defendant that he had an inventory in his possession which had just been taken, and accepted that as the basis of a sale and purchase, but embodied in the contract of sale the -provision that that inventory should be subjected to a corrected count, weight and measure, on the arrival and delivery of the property at Springville. By this contract payment was to be made as follows : $20,000 in shares of the capital stock subscribed and taken by him at par value, and the balance in two notes of the company, in equal amounts, payable in six and twelve months, respectively. It also provided that the title to the property should be deemed to pass as of December 18, 1883, as- also should the right to the insurance upon -it. Within a few days of the making of (he contract, defendant obtained and discounted the notes intended as part of the purchase-money for the property sold, and placed the proceeds to the credit of The O’Neil Wagon Company, of ■the property of which firm he had become the sole owner by the previous sale to him by his partners. This property at the time of the sale to the new company was insured for $19,000, and additional insurance was then effected for three months to the amount of $15,000. Before the delivery of the stock had been completed, and in the evening of February 14, 1884, the fire in question occurred. It broke out at about eleven o’clock in three different places in the building, and that it was the work of an incendiary is substantially, if not in fact, conceded. The loss occasioned thereby was claimed by the defendant to amount to $20,000. This the representatives of the insurance companies refused to believe or to concede, and the claim was finally compromised by defendant at $10,000. Then the proofs of loss in question were prepared and executed by defendant, as president, and one Couger, as treasurer of the insured company. The introduction in evidence by the people of these proofs of loss was with reference to their bearing upon the question of proof of defendant’s guilt, and we are unable to see how any error was-committed by the trial court.

The proof relied upon by the prosecution as establishing guilt was mainly circumstantial in its nature; except that evidence was given by witnesses as to statements made by defendant in conversation which might be deemed equivalent to admissions or confessions of guilt. The facts elicited by the testimony of witnesses related to the conduct of the defendant before, during and after the fire and statements made by him in conversation with employees, his former partners and the insurance adjusters. Between the time of the sale of stock to the new company, in December, and the time of the fire, it was testified that much of it was shipped away by defendant. Witness O’Connor, a book-keeper, testified that on the day of the fire he went to his supper at six o’clock, leaving the defendant alone in the building, and before he left defendant obtained from him a list of wagon material and of customers’ names and addresses, and of the number of wagons they had got and of the prices paid for them.

During the progress of the fire the defendant stood apart, apparently indifferent, in so far as he made no effort to save any articles; while O’Connor was active and exposed himself to peril in his endeavor to save the books and property. O’Connor testifies that after the fire the defendant directed him to burn the invoices, and said he was sorry that he had saved the books and that the “whole damned place didn’t burn down;” that when witness called his attention to the fact that some books were gone, defendant said that was “all right; he knew where they were, but he did not want them to fall into the hands of the insurance men;” that defendant told him not to mention that the books had been saved; that when informed that the insurance men had been in the building lately, he said, “why didn’t you tell me so at the time; if you had, I could have made different arrangements, but as it is I must do .the best I can;” that he told witness he had “ made up an inventory to settle with the insurance company;” that he had “made up an inventory for the purpose;” that it “ showed a loss of $20,000 * * * if he could get $20,000 of the insurance men he would let the Springville men go to hell, he would not go to Springville.”

Witness Lansing, an employee, testified that defendant told him to tell the insurance adjusters that the second floor was filled up with wagon material. Witness Baker, also an employee, testified as to the amount of stock on the premises and that there were no oils or paint or varnish in the show room; that “ after the fire O’Neil said if the insurance men came around and asked him how much stock there was in the building, to tell them the building was full, we didn’t know how much there was in there.”

When the adjusters examined the premises they found no indications of a loss' of any large stock of materials. They insisted that wagon materials could not be so totally destoyed as to leave no evidence, in parts more or less indestructible. One of them, Rice, testifies that while with the defendant and others in the premises they refused to believe defendant’s statements as to the quantity of stock and materials and he asked him “where the iron corners for the bodies were; ” remarking if he had 777 bodies here, he would have four timps .as many irons. He didn’t think defendant “made much of a reply. He turned red in the face.” ,

Defendant paid a visit to the premises with his former partners Duffy and Fitzgerald, and Duffy testified that defendant then said to him, “you see Mr. Duffy, here is no evidence of anything having been burned here — you see the floor has not burned, nor scorched, and if the damned thing had only gone down as I intended it should, it would have been all right.” Fitzgerald corroborated Duffy in this testimony and further testified that defendant said in reference to a query as to how much of a loss he had, “from a thousand to fifteen hundred dollars would cover it all.”

In- giving his own evidence the defendant admits that there was a mistake in the amount claimed in the inventory. of December, on the basis of which the sale was made to the new company and that the claim he presented for property destroyed was larger than the actual loss. I have collected these items in the proofs which went to make up the case, which was submitted to the jury.

A fuller review or analysis is not called for, to the end in v-iew; which is to establish the materiality of evidence bearing upon the principal fact, or the question of the defendánt’s motive or want of motive. When the proof relied upon ds circumstantial; the law requires it to be such as to satisfy the jurors,' beyond- any reasonable doubt, of the guilt of-the defendant, and under such a rule, it is of the essence • of justice. that no facts or ■ circumstances shall be excluded from the jury, which'have relation to or bear .upon- the principal fact. Not facts which owe their origin to subsequent events; but such as .were of necessity connected with, or would have had no existence except for the principal fact. Here the principal fact was the burning of the building and the defendant was charged by the people with having caused it.

The proofs of loss, which he executed subsequently, were for the purpose of collecting the insurance moneys upon property which he stated was destroyed. They were required under the policies; they gave the amount of other, insurance on the property—the amount of the compromise, and stated the cause of the fire in the affiant’s opinion to be incendiarism. They thus were directly connected with the fire, and, the defendant being concerned with and interested in their making, they formed part of the res gestae. When we speak of the res gestae, we mean those surrounding circumstances which relate to and illustrate the principal fact, and are its necessary or usual incidents. The admissibility in evidence of these proofs of loss rested upon the fact of their being made necessary by the fire, and of being the formulation in a statement under oath by defendant, as an interested party, of facts concerning the fire, its consequences and probable cause. The principle of their admissibility is in their necessary connection with the principal fact. These proofs of loss, though subscribed and sworn to by defendant in his official capacity as president, none the less were the statements of the individual. Their execution jointly with Couger, the treasurer, in no wise affected the question of their admissibility, as links in the chain which the people were forging to hold the prisoner.

Though jointly subscribed, each proof of loss was in reality but the separate statement of each affiant made in that form. These proofs of loss, being in the case, would have some bearing upon the question of the existence or absence of a motive in the defendant for the commission of the crime charged. The theory of the people’s case against the prisoner was that a motive did exist which led him to commit this act, and to the end of sustaining that theory and exhibiting the motive, they arrayed various facts and circumstances. He had induced The O’Neil Wagon Oo. (limited) to buy of him at a price of upwards of $36,000 a stock of goods, etc., on his valuation of $Í0,000 in an inventory prepared by him, and had realized upwards of $16,000 of the agreed price in cash long before the delivery of the goods, and there remained his liability to be covered on the stock subscription of $20,000. The contract price was subject to correction at Springville as the goods were delivered there, and it would soon be known that the amount of stock, etc., which he had sold and agreed to deliver fell far short of his representations. The people did furnish evidence through their witnesses, and it appeared through the prisoner’s own evidence that no such amount of stock was on hand as he had contracted in December, 1883, to sell and deliver.

. Another question raised by the appellant is as to the correctness of the ruling of the trial judge in admitting evidence of the defendant’s drinking liquor at a time subsequent to the fire.

The witness O’Connor testified to various interviews and conversations with defendant, while the adjustment of the fire losses was in progress, some of which I have already given, wherein the defendant exhibited great irritation and temper, because the books and the whole building had not been destroyed, and declared his purpose of letting the Springville men go to a hotter and undesirable place, if he could get $20,000 of the insurance men. Witness, was then asked to state “ whether at that timé and for several days-.previous the defendant was drinking a good deal of liquor.” The objection to. the question was overruled and-defendant’s counsel excepted. Witness answered, “he was drinking some. He had a bottle there with him. Couger carried a bottle and every once in a while Mr. O’Neil would take a slug.” We do not think the court committed an error- in the reception of this evidence. Its admission was, under the circumstances, somewhat a matter of discretion. It was a remote circumstance but it bore upon the question of guilt, in that it tended to show what was his conduct and demeanor, when engaged in matters connected with the fire and in the course and disposition of which he was principally interested and a prominent actor. The calm or disturbed demeanor, the natural or the unusual conduct of the individual are witnesses to the workings of the mind, and taken in connection with all other circumstances tending to connect him with an event, aid the jury in forming the inference of innocence or of guilt.

In Greenfield v. The People (85 N. Y., 85), the demeanor of a prisoner soon after the commission of. a crime was considered as a proper subject of consideration in determining the question of guilt. The conduct of a party may be as much evidence as his statements. To admit evidence of his drinking liquor was not necessary; it furnished simply an additional circumstance, which would add to the body of proof, from which the jury might deduce the inference of innocence or guilt. That the nature of the circumstance was such as to create a prejudice in the jury’s minds, which might have unjustly influenced their verdict, we can no more assume than we"can that the uncalled for profanity in his conversation had shocked them and unduly biased their minds.

As to the charge of the trial judge, I think, in view of its careful analysis in the general term opinion and of their expressions, little need be said here. If the correctness of the verdict were to depend upon the diction, style or perspicuity of a charge, then I should doubt whether this verdict ought to be allowed to stand; but though deficient in these respects, it yet was intelligible and was a summing up, though in a discursive and inartistic way, of the proofs-in the case. There are no such errors in it as demand a reversal of this judgment. The questions of fact were left with the jury by the trial judge, who instructed them that they were the exclusive judges as to all such questions. This instruction was repeatedly given in different words throughout the charge, wherever the trial judge commented upon the facts and also in his rulings upon the requests to charge.

Upon the whole case we think the verdict was right, and that it is supported by the evidence. Taking the whole-body of proofs surrounding the principal fact, they point to the guilt of the defendant, and among those proofs is no item, the admission of which constituted a legal error; or which was not fairly within that strict line of investigation, which the policy of the law favors, as expedient for the discovery of the truth and for the aid of the jury in arriving at a right verdict.

The judgment and order appealed from should be affirmed.

All concur, except Huger, Ch. J., not voting.  