
    The People of the State of New York, Respondent, v. Morris Spiegel, Appellant.
    An indictment charging the presentation to a fire insurance company of a false and fraudulent claim for alleged loss by fire of property insured in several companies, alleged the service of proofs of loss, which were set forth; that the total loss was not the sum asserted in the proofs presented; that the particular claim made against the company complainant was not justly due, and that both claims were false and fraudulent to the-knowledge of the defendant, and were feloniously presented in violation of the statute. Beld, that this was a sufficient statement of the facts. Upon trial of the indictment defendant’s books of account, which had been seized and brought into court, were introduced in evidence. No objection was made on the part of defendant on the ground that the books, were produced against his will. Held,, that there was no compulsion within the meaning of the constitutional provision declaring that no person in a criminal action shall be compelled to testify against himself, and that in the absence of such an objection the books were competent evidence, and this, although their production and use could be said to have been proof of defendant’s own confession or admission, instead of a part of the res gestas of the crime.
    Reported below, 75 Hun, 161.
    (Argued June 15, 1894;
    decided October 9, 1894.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 12, 1894, which affirmed a judgment of the Court of Oyer and Terminer of the city and county of New York, entered upon a verdict, convicting defendant of the crime ox presenting false proofs of loss in support of a claim upon a policy of insurance in violation of section 579 of the. Penal Code.
    The indictment contained two counts. The first alleged the issuing of a policy to the defendant by the Insurance Company of North America; that this policy and other policies issued by the companies representing insurance to the amount of $35,000 were in full force and effect at the time of the commission of the crime; that a fire occurred in the defendant’s premises on the 16th of December, 1892, by which certain loss and damage were occasioned.
    
      The indictment then averred that the defendant, “ after-wards, to wit, on the fifth day of January, in the year of our Lord one thousand eight hundred and ninety-two, at the city and county aforesaid, with force and arms, fraudulently and knowingly did feloniously present and cause to he presented to the said the Insurance Company of North America a certain false and fraudulent claim for the payment of a loss upon the said contract of insurance so issued as aforesaid by the said the Insurance Company of North America, wherein and whereby it was claimed, set forth and alleged by the said Morris Spiegel that a loss had been sustained by him the said Morris Spiegel by reason of the said fire, and the destruction and damage occasioned thereby to the goods, chattels and merchandise contained in the said building at the time of the said fire, and so insured as aforesaid to the extent of seventy thousand two hundred and twenty-one dollars and seventy-nine cents, and that the said the Insurance Company of North America was then justly indebted to him the said Morris Spiegel by reason of the loss, damage and contract of insurance in the sum of seven thousand dollars, which said claim was then and there false and fraudulent in this, to wit, that a loss had not been sustained by the said Morris Spiegel by reason of the said fire and the destruction and dapiage occasioned thereby to goods, chattels and merchandise contained in the said building at the time of said fire, and so insured as aforesaid to the extent of seventy thousand two hundred and twenty-one dollars and seventy-nine cents, and the said the Insurance Company of North America was not justly indebted to the said Morris Spiegel by reason of the said loss, damage and contract of insurance in the sum of seven thousand dollars; all^of which he the said Morris Spiegel then and there well knew.”
    The second count only differed from the first in that it contained no reference to the additional insurance.
    Further facts appear in the opinion.
    
      Charles Daniels for appellant.
    The indictment was insufficient to present a violation of the statute under which it was found. (U. S. v. Cruikshank, 92 U. S. 542, 578; U. S. v. Britton, 107 id. 655 ; U. S. v. Hess, 124 id. 483.) The court erred in rejecting the juror Benno Bothgeisser. (Code Civ. Pro. §§ 378, 1079; Code Crim. Pro. §§ 377, 384, 387; People v. McQaade, 110 N. Y. 284.) The warrants were issued, as then recitals state, to obtain the private books of the defendant without any pretense of legal authority, and in violation of the security afforded him by section 6, article 1 of the Constitution of the state, and section 11 of the state bill of rights. (2 R. S. [6th ed.] 376.) The judge presiding at the trial permitted the public prosecutor to give incompetent and inadmissible evidence over the objection and exception of the defendant’s counsel. (Silberstein v. Houston, 117 N. Y. 293 ; Tozer v. N. Y. C. R. R. Co., 105 id. 659; Boyd v. U. S., 116 U. S. 616 ; Counselman v. Hitchcock, 142 id. 547; Lees v. U. S., 150 id. 476.) The seizure of the book containing the stock account of 1886, and its production in evidence, was compulsory and violated the protection afforded to the defendant by the Constitution of the state. (Boyd v. U. S., 116 U. S. 616; Cancemi v. People, 18 N. Y. 128 ; Mauer v. People, 43 id. 1; People v. Bork, 96 id. 188, 196; People v. Campbell, 4 Park Crim. Cas. 386; Ex parte Bain, 121 U. S. 1.) The judge’s charge was erroneous. (Chapman v. McCormack, 80 N. Y. 479 ; Code Crim. Pro. § 419 ; Sherwood v. M. Ins. Co., 5 Hun, 115; McGrath v. M. Ins. Co., 6 N. Y. St. Repr. 370; Dolan v. D., etc., Co., 71 N. Y. 285.) The court erroneously excluded evidence of the second appraisal. (Halsey v. Sinsebaugh, 15 N. Y. 488; Russell v. H. R. R. R. Co., 17 id. 134, 140; Howard v. McDonough, 77 id. 592.) The motion to strike out the evidence of Vincenot should have been granted. (Denise v. Denise, 110 N. Y. 562; Warren Co. v. Holbrook, 118 id. 587; Hutchins v. Hutchins, 98 id. 57.)
    
      Abram Kling for the appellant.
    The facts alleged in the indictment are not sufficient to constitute a crime. (Penal Code, § 579.) The prosecution failed to prove at the trial that the defendant’s loss was less than the amount of his insurance. (Code Crim. Pro. § 275; People v. Albrow, 140 N. Y. 130; People v. Stark, 136 id. 538; Sherwin v. People, 130 id. 355.) There was a fatal variance between the crime charged in the indictment and the crime regarding which evidence was given. (Penal Code, § 579.) The burden of proof that the loss sustained by the defendant was less than the amount of his insurance rested on the prosecution and in this essential proof they utterly failed. (People v. Dumar, 106 N. Y. 511; Lambert v. People, 76 id. 220 ; Wood v. People, 53 id. 511; Southwick v. N. Bank, 84 id. 420.) All the ingredients of the offense must be stated or the indictment is defective. (U. S. v. Cook, 17 Wall. 174; U. S. v. Simmons, 96 U. S. 360 ; U. S. v. Reed, 1 Low, 232 ; U. S. v. Cruikshank, 92 U. S. 542, 578; U. S. v. Clark, 1 Gall. 497; U. S. v. Staats, 8 How. 41; U. S. v. Howard, 1 Saw. 507; U. S. v. Britton, 107 U. S. 655 ; U. S. v. Reese, 92 id. 225.) The features of the statute must be enumerated with rigid particularity; nothing can be taken by inference or intendment. (6 Dana, 291; Howard Case, 1 Saw. 507; 1 Hale, 517, 526, 535; R. v. Ryan, 7 C. & P. 854; U. S. v. Lancaster, 2 McL. 431; U. S. v. Andrews, 2 Paine, 551; U. S. v. Pond, 2 Curt. C. C. 265; State v. Gurney, 37 Maine, 149 ; State v. Fust, 35 N. H. 438; Com. v. Fearn, 125 Mass. 387; Phelps v. People, 72 N. Y. 334; People v. Allen, 5 Den. 76; Whart. Crim. Prac. §§ 220, 223, 225, 229, 235.)
    
      John D. Lindsay for respondent.
    The Court of Appeals will not, save in a capital case, review alleged error where no exception was taken at the trial. (People v. Brooks, 131 N. Y. 321; People v. Most, 128 id. 113; People v. Donovan, 101 id. 63 ; People v. Guidici, 100 id. 503; People v. Hovey, 92 id. 554.) Technical errors not affecting the substantial lights of the defendant present no ground for reversal. (People v. Brooks, 131 N. Y. 321; People v. Fanning, 131 id. 673; People v. Waymam, 128 id. 585; People v. Gillman, 125 id. 375; People v. Spinwall, 115 id. 525; People v. 
      Bliven, 112 id. 79, 92; People v. Johnson, 110 id. 341; People v. Gonzales, 35 id. 49, 60 ; Code Crim. Pro. §§ 275, 284; People v. Dimick, 107 N. Y. 13, 35; People v. Jackson, 111 id. 362, 369 ; People v. Dumar, 106 id. 507; People v. Willett, 102 id. 251; People v. Moses, 99 id. 662; People v. Conroy, 97 id. 62.) There was no error in any of the rulings of the trial court upon the admission or exclusion of evidence. (Benjamin v. Ellinger, 80 Ky. 472; Kelly v. People, 55 N. Y. 565 ; People v. Chacon, 102 id. 671.) There was no variance1 between the indictment and the proof. (Penal Code, § 579.) The challenge of the People to the juror Benno Botligeisser was properly sustained. (Code Crim. Pro. § 375 ; People v. McQuade, 110 N. Y. 432.) There was no error in the charge. (People v. Flack, 125 N. Y. 334; People v. Fanning, 131 id. 663 ; People v. Dimmick, 107 id. 13.) The use by the prosecution upon the trial of the books alleged to have been taken from the defendant’s possession under a search warrant presents no question for the consideration of this court. (Pierson v. People, 79 N. Y. 424; People v. Tice, 131 id. 651; Boyd v. U. S., 116 U. S. 616; Code Crim. Proc. § 813; State v. Graham, 74 N. C. 646; Johnson v. Comm., 115 Penn. St. 369.)
   Finch, J.

The defendant has been convicted of presenting to an insurance company a false and fraudulent claim for an alleged loss by fire. The indictment sufficiently charges the offense and is not open to the criticism which assailed it on the argument. The pleading alleges that the total loss was not the sum asserted in the proofs presented, and that the particular claim against the company was not justly due, and that both claims were false and fraudulent to the knowledge of the defendant and were feloniously presented and in violation of the statute. The total amount of the loss dictated the amounts chargeable in due proportion to each of the insuring companies; and the indictment avers, not only the falsity of the total loss claimed, but specifically of the particular claim founded thereon against the company making the complaint. That was a sufficient statement of the facts, and fairly apprised the accused of the crime with which he was charged. Narrow and technical objections to the form of an indictment have had their day, and it is our duty not to drift back into the old uncertainty.

. What the indictment charged the proof tended to establish. That there was any failure of such proof rests mainly upon a contention, not borne out by the facts, that no specific claim for any specific amount was made because of an alleged modifying provision contained in the proofs of loss presented to the company, The claim distinctly made was for a total loss to the full extent of the sum insured, and the aggregate of damages claimed was more than double the amount of the entire insurance. There was a statement that in estimating the total loss no credit had been given for a possible salvage upon articles merely damaged, but it was also alleged as a reason for the omission that these in their damaged state had no commercial value to the insured, although subject to an appraisal. Undoubtedly this meant that the total loss claimed might, by the action of the insurer under the policy, suffer a reduction by the amount of some value found to remain in the injured articles; but the false claim of loss remained and was made so large that its possible reduction by a salvage which the insured did not admit would still leave the company liable for the full amount of its insurance, or at all events for more than it ought to pay. And this very damage, left open to a possible reduction, was shown to be itself the result of fraud rather than fire, and of the agency of the insured himself. The claim presented did not cease to be vicious because left open to the reduction of an appraisal, but may have been found by the. jury to have been framed to work its intended result in spite of such reduction, which the policy itself would compel, and which it was no great virtue to anticipate. The question of fraudulent intent was thus one for the jury upon all the facts developed.

A further argument is made, founded upon the evidence furnished by the books of the insured, and rests upon the contention that, by their production or proof of their contents, the accused was compelled to give evidence against himself in a criminal action. The constitutional provision is invoked that no person shall be compelled in any criminal case to be a witness against himself (Art. 1, § 6), and reference is made to the authority of Boyd v. United States (116 U. S. 616). The General Term make two answers: that no objection or exception anywhere in the case presents the question; and that a party may waive the benefit even of a constitutional provision, at least, where it does not affect matters in which the public have an interest apart from and outside of the personal right of the individual. These answers combined show an utter absence of the compulsion which the constitutional provision forbids. We are not concerned with the question whether the seizure of the defendant’s books was by itself lawful or unlawful, but merely with the use made of them on the trial. There was no compulsion in that use, because it was not objected to upon that ground. The defendant might have objected; he might have resisted; he could possibly have prevented the use made of the books, but instead, he either silently permitted the evidence to be given, or at the most only questioned its general relevancy or competency. It was both relevant and competent, at least until he so objected as to make its admission compulsory and against his will. And this is true even if the production and use of the books can be said to have been his own confession or admission instead of a part of the very res gestae of the crime.

It'is further contended that the court erred in the charge to the jury in respect to the force and effect of the evidence given outside of that which came from Blais, who confessed himself to be both a thief and a liar, and so was unreliable as a witness. It is not necessary to add anything to the answer of the General Term beyond an expression of our concurrence. That answer shows in a very satisfactory manner that the trial judge did not invade the province of the jury, and in substance only ruled that with the testimony of Blais eliminated enough evidence remained to be submitted to their judgment, and upon which, if it satisfied them beyond a reasonable doubt, they might1' rest their verdict. The opinion points out how fairly and fully the questions of fact were submitted through the whole body of the charge, and that the one sentence criticized itself left the case to the judgment of the jury, both as to the disregard of Blais’ testimony and as to the effect of the remaining proof.

■I have read through the very voluminous record of the trial. There is much conflict of evidence; there is room for divergent inferences, and there is basis for argument on both sides; but the facts were for the jury, and their conclusion must prevail. There is no error of law which requires a new trial.

The judgment must be affirmed.

All concur, except Andrews, Ch. J., not sitting.

Judgment affirmed.  