
    The People of the State of New York, Resp’ts, v. Hugh O’Neil, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed, July, 1888.)
    
    1. Criminal law—Arson in third degree—Practice—Effect of submitting TO JUBY QUESTION OF LAW.
    A judgment will not be reversed merely because the judge submitted to the jury a question which he ought to have determined himself, where it is clear he ought to have decided it in the same way the jury have found.
    3. Same—Evidence—Admissibility of.
    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 had to a certain schedule, as to the value of the property destroyed, and Jt stated “ That the fire originated ” cause unknown to these deponents, but “in our opinion, 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 the defendant’s objection and exeception. Held, that the evidence was properly received. That it tended to elucidate the situation of the property at the time of the fire; and the extent of the insurance thereon, and the relations of the defendant thereto. That it bore upon the question of the defendant’s mo.ive or want of motive in respect to the fire charged to have been caused by his act. That the circumstance that the affidavit was verified by the treasurer, as well as by the defendant, and the receipt signed by both, did not render the evidence inadmissible.
    8. Same—Acts of defendant at oe abotjt the time of committing chime ADMISSIBLE.
    It was admissible to prove facts tending to prove the defendant’s interest in the company, and to show his relations to the insurance existing upon the property at the time of the fire. The acts and conduct of the defendant at or about and after the time when the fire occurred were admissible.
    4. Same—Chaege to juey—When cannot be legally excepted to.
    After quoting many passages of the judge s charge and stating that there were some passages found therein which should not be followed as precedents, Held, that the court in its charge upon the testimony are not ordinarily the subject of legal exception, so long as the questions of fact are left with the jury with instructions that they are the sole judges thereof.
    June 20, 1885, an indictment was found in the Cortland oyer and terminer, charging the defendant with arson in the third degree, under the second sub-division of section 488 of the Penal Code, having burned, February 14, 1884, at Cortland Village, a wagon factory.
    In February, 1886, at an oyer and terminer, the defendant was convicted of the crime charged and sentenced to imprisonment in the state’s prison for five years.
    A motion for a new trial was made pursuant to sections 465 and 466 of the Code of Criminal Procedure, which was denied.
    The defendant appeals from the judgment and conviction.
    
      R. Champlin and J. McGuire, for app’lt; H. L. Bronson, district attorney, for resp’ts.
   Hardin, P. J.

Upon the evidence given upon the trial, the trial judge was warranted in holding, as a matter of law, that the building alleged to have been burned by the defendant and described in the indictment as well as in the evidence, was embraced within the statute against arson.

Although he submitted comments to the jury upon that subject, and allowed them to find that the building was within the provisions of the statute, no error was committed which the defendant can successfully complain of.

A judgment will not be reversed merely because the judge submitted to the jury a question which he ought to have determined himself, where it is clear he ought to have decided it in the same way the jury have found. Miller v. Eagle Life and Health Ins. Co., 2 E. D. Smith, 268; Cumptony. McNair, 1 Wend., 457; Hall v. Suydam, 6 Barb., 83-88; Thompson v. Roberts, 24 How. U. S., 233-240.

Second. After the fire, which occurred on the 14th of February, a compromise 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 one Conger,who was treasurer of the Springville company, in consummation of formal proofs against the several companies.

In that affidavit sworn to on the 22d of February, 1884, reference was had to a schedule of the policies existing at the time of the fire upon the property destroyed, showing the amount of insurance to be $20,750, and that a compromise was fixed upon at $10,000; and it was also stated in that affidavit, viz., “that the fire originated, cause unknown to these deponents, but in our opinion of incendiary origin.” .

That affidavit was signed and sworn to by the defendant, and was received 'in evidence against his objection and exception.

A receipt executed by the defendant to one of the insurance companies for its proportion of the compromise adjustment was received in evidence against the defendant’s objection and exception.

We think this evidence was properly received. It tended to elucidate the situation of the property at the time of the fire, and the extent of the insurance thereon, and the relation of the defendant thereto, and bore upon the question of the defendant’s motive or want of motive in respect to the fire charged to have been caused by his act.

The circumstance that the affidavit was verified by Conger as well as O’Neil, and the circumstance that the receipt was signed by Conger as well as O’Neil, did not render the evidence inadmissible.

It appeared that O’Neil, the defendant, was president of the O’Neil Wagon Company (limited), and Conger was treasurer of that company. The acts and declarations of O’Neil, in conjunction with the insurance, and the adjustment and the receipt of moneys upon the insurance policies after the fire, were not rendered incompetent, because they were in conjunction with Conger. We, therefore, think the exceptions taken to that class of evidence are unavailing to the defendant.

Third. Nor do we think it was error to receive evidence of the number of shares of stock owned by the defendant in the wagon company organized at Springville, as that fact tended to indicate the extent of his interest in that company, and to develop his relations to the insurance existing upon the property at the time of the fire.

Nor was it error to receive the evidence tending to show how much property had been shipped to the Springville company, or the arrangement existing with that company in respect to the property and the insurance thereon.

If the books which had been kept in respect to the property relating to the defendant’s account had not been mutilated, and had been produced, that would have furnished some evidence of the extent of the defendant’s interest in the property remaining in the building at the time of the fire.

If the leaves torn out of the books which contained the accounting of the defendant, were torn out by the defendant, or by his act, it was not error to receive evidence of such destruction of the books, and to treat the same as bearing upon the motive of the defendant, if the destruction was by him, or caused to be done by him. Such seems to have been the theory upon which the evidence was received and dealt with by the judge in' delivering the case to the jury. In effect the jury were told that the evidence was insignificant and unimportant unless the mutilation of the books took place by the acts or procurement of the defendant.

With this qualification we see no error in receiving or dealing with the evidence in relation to the mutilation of the books.

Fourth. When the witness O’Connor, bookkeeper, was upon the stand, he detailed the incidents relating to the books, and facts and circumstances relating to the fire and the direction received from the defendant in respect to the several interns in the accounts, and conversations had with the defendant preceding the fire and shortly thereafter; and narrated some of the preparation made by the defendant to meet the adjusters and ascertain the extent of the loss; and that he burned certain invoices in the stove in the blacksmith’s shop, under the direction of the defendant, and that the defendant told him that he had “made up an inventory to settle with the insurance companies,” and that the inventory made at the Messenger House “showed a loss of $20,000. He said 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.”

After this evidence was given the witness was permitted, against the objection and exception of the defendant, to state that the defendant ‘1 was drinking some. He had a bottle there with him. Will Conger carried a bottle and every once and a while Mr. O’Neil would take a slug. The bottle was carried in Mr. Conger’s overcoat pocket. I saw O’Neil drinking from that bottle at different times. He told me during the time he was making his adjustment that he had showed the loss by his inventory of something over $20,000.

In Lindsay v. People (63 N. Y., 154). Judge Allen says, viz: “The acts and declarations of a party are evidence against him, and whether they tend to fix a crime upon him is for the jury.”

In Greenfield v People (85 N. Y., 85), Judge Miller says, viz: “ The acts and conduct of a party at or about the time when he is charged to have committed' a crime are always received as evidence of a guilty mind, and, while in weighing such evidence, ordinary caution is required, such inferences are to be drawn from them as experience indicates is warranted. And the demeanor of a prisoner at the time of his arrest, or soon after the commission of the crime, or upon being charged with the offense, is a proper subject of consideration in determining the question of guilt. Such indications, however, are by no means conclusive, and must depend greatly upon the mental characteristics of the individual.”

In Levy v. People (80 N. Y., 335), it was said that the conduct of the prisoner after the fire was admissible. In speaking thereof, Judge Folger says, viz.: “ It was an act in the prisoner’s life, at the time of the occurrence, with guilty participation in which he was charged, and it was competent to be shown to the jury, * * * but after acts of his might be circumstances, according to the nature of them, to show guilty knowledge of purpose and inducement thereto before the fire.

We are, therefore, of the opinion that the verdict ought not to be disturbed, because the witness O’Connor testified that, at the time of the occurrence of the acts of the defendant, which he had detailed, the witness was permitted to state that the defendant “ was drinking some.”

Fifth. Much criticism and complaint are made by the defendant of the charge delivered by the trial judge to the jury. In the third sentence in the charge, we find the following language; “ Upon you, as jurors, the chief weight rests, because you are the exclusive judges, and final judges of all questions of fact.” In substance ánd in spirit the same language was used during the delivery of the charge several times by the trial judge.

After commenting upon the surroundings and evidence relating to the motive of the defendant, the judge says: “ Those are the surroundings upon the motive, and I leave it to you to say whether that was any motive that would tend to impel the man on to firing that building in the hope that the whole building would be destroyed, and that all evidence as to the amount and value of the goods that were there destroyed with it, so that the insurance companies would be obliged to depend on his representations and what he would swear to as to the goods that were there. It is a question for you, a question of fact, not only as to whether the motive existed there, but as to what weight the motive has, whether you think, along with the other circumstances in the case, it is satisfactory one in your minds in judging of the question of this man’s guilt.”

Again he says: “ I leave, then, this question entirely with you to give such weight to them as the circumstances and the surroundings of this man, under the circumstances, as you think they are entitled to in determining the question of this man’s probable guilt.”

The same intimation was made again at folio 807, also, folio 838.

Again, in referring to evidence_ relating to declarations made by the defendant, the trial judge remarks: “If it is true, I can’t say it is so; I can’t say to a'certainty; you must take it, and judge for of it all the way through as best you-can, and you ought not to make use of arbitrary conclusions either way in relation to it, but weigh it carefully to see whether it does address itself to your judgment.”

Again, in speaking of the force and credit to be given to ■testimony from certain witnesses, the trial judge remarks, ■viz.: “If you can’t find anything, you have the right to .give it full credit and hold that they testified truthfully in relation to it. Whether you can see anything in the case that tends to throw discredit upon it is entirely for you.” Again, in commenting upon the effect to be given to the testimony of the defendant as a witness, the trial judge adds: “You are the exclusive judges of all this; the court has no right to say to you that you ought to decide what your duty is, the court must dispose of the questions of law .that arise in the case and is responsible for that.”

And again he adds: “I leave the case wholly with you; go at it deliberately with the idea singly to determination of justice weighing the evidence, and as it strikes your mind and impresses you that you believe, if it fairly weighed effects your judgment that you believe, it is the true •criterion, whatever makes you believe from the evidence is true state of things is the true criterion.”

At the close of the charge very numerous requisites were preferred by the defendant, and several exceptions were taken to expressions used by the court in delivering the body of the charge. In response the court several times remarked: “I do say to the jury that I will leave that entirely with them to say what inference would be properly drawn, what weight to give it.”

In response to an exception “to that portion of the charge where the jury are told that the proof and circumstances, as detailed by Fitzgeralds and Duffy and O’Connor, are terribly damaging to the defendant,” the court replied: “The jury may so find; they have the right to.”

And when the defendant’s counsel asked the court to charge ‘that a conviction for crime cannot be had upon motives amne,” the court promptly replied: “Certainly not; I so charge.”

And when the defendant’s counsel followed that by a. statement, viz., “that motives only strengthen the circumstances which point to the guilt of the defendant,” the court again replied: “I have intended to so charge, and I repeat it.”

And when the defendant’s counsel asked the court “to call the attention of the jury to the further testimony of Smith, that he saw O’Neil loading crating on a hand-car,” the court promptly replied, viz.: “ He did so testify loading crating sticks on a hand-car. I don’t claim to have alluded to many of the circumstances and surroundings but such as seemed most prominent to the court to call their attention to, leaving it to your common sense, as it were, to call to mind any and all "circumstances, whether it addresses itself to your judgment in forming a conclusion.”

In Jackson v. Packard (6 Wend., 415), an observation of the judge, during the delivery of his charge upon the evidence, was the subject of comment, and in referring thereto Judge Southerland says. “It was nothing more than the éxpression of the opinion of the judge upon that point; but it in no respect assumed to take from the jury the right to judge for themselves upon the matter.”

In Crandal v. Bradley (7 Wend., 312), it was said that certain comments made by the court to the jury were merely intended to express an opinion upon the weight of evidence, not to take the question from the jury,” and therefore no error was committed.

In Bruce v. Westervelt (2 E. D. Smith, 441), it was said, viz: “In submitting to a jury a question of fact, a judge may add the expression of his own opinion, in relation thereto, upon the testimony, and such an exercise of his discretion forms no ground for.exception.”

When the Code of Criminal Procedure was adopted a new statutory provision was made bearing upon the question here involved, and in section 420 of that Code it is provided, viz: “In charging the jury the court must state to them all matters of law which it thinks necessary for their information in giving their verdictand must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact.”

We think the trial judge followed the spirit of this section, and several times in the absence of any request he informed the jury “that they are the exclusive judges of all questions of fact.”

In the multitude of requests that were submitted by the defendant, there was none that specifically requested the question of fact to be left to the jury, which the judges refused.

While some of the passages used in the body of the charge may have been hastily framed, they resulted from an immature consideration of the evidence, and do not challenge admiration as the most perspicuous and approved comments upon testimony. We must bear in mind that, in the fatigues and excitements of trial at issue, the most careful and approved diction is not to be expected.

We think the language used in Sindram v. People (88 N. Y., 196), when applied to the charge under consideration, warrants the court in refusing to interfere with the verdict.

It was there said, viz: “The comments of the trial court in its charge upon the testimony are not ordinarily the subject of legal exception so long as the questions of fact are left with the jury with instructions that they are the sole judges thereof.”

We think the trial judge sufficiently informed the jury that they were the exclusive judges of the facts, and that it was their exclusive province to pass upon the testimony bearing upon the questions relating to the guilt or innocence of the defendant; that the body of the charge and the qualifications made in response to requests, confided the important question of fact to the jury, and followed the rule laid down in the case just cited, as well as the rule laid down in section 420 of the Code of Criminal Procedure.

We are, therefore, disinclined to heed the criticisms made upon the charge found in the pointed assault made thereon in the brief of the appellant.

Whether the defendant was guilty of the crime charged in the indictment or not, upon all the evidence produced at the trial, was a question for the jury.

We are of the opinion that the evidence was sufficient to sustain their finding. Accepting their verdict as being sustained by the evidence, we are constrained to allow it to stand, notwithstanding some passages are found in the ' charge which we are not inclined to commend as precedents.

Order and judgment affirmed, and proceedings remitted to the court of oyer and terminer of Cortland county, with instructions to proceed thereon.

Follett, J., and Mártir, J., concur.  