
    SUPREME COURT—APP. DIVISION—SECOND DEP.,
    Mar. 11, 1908.
    THE PEOPLE v. DANIEL O’BRIEN.
    (125 App. Div. 254.)
    (1) . Arson—Accomplice.
    In a prosecution for arson it appeared that the defendant, a school boy, suggested to a fellow-pupil that they set fire to the gas meter in the basement of the school. The defendant’s associate testified that he went to the top of the stairs to see if any one was coming and from that position shouted to the defendant, “ Go ahead, no one is looking.” Held, that the witness was an accomplice.
    (2) . Same—Must be Corroborated—New Trial.
    Although said accomplice and another witness, only eight years old, both testified that they stood at the top of the stairs and saw the defendant set fire to the meter, a new trial should be granted when there is no corroboration of their testimony, and affidavits ot two adult disinterested persons are presented showing that by actual test they found that it was physically impossible to see the meter from the top of the stairway where the boys testified that they had stood.
    Appeal bv the defendant, Daniel O’Brien, from a judgment of the Children’s Court, second division, borough of Brooklyn, rendered on the 19th day of June, 1905, convicting the defendant of the crime of arson in the second degree, and also from an order made on the 29th day of June, 1905, denying the defendant’s motion for a new trial.
    
      William O. Miles, for the appellant.
    
      Peter P. Smith [John F. Clarke with him on the brief], for the respondent.
   Hooker, J.:

The defendant pleaded not guilty, was tried and convicted in the Children’s Court in the Borough of Brooklyn. The trial was had on the 19th day of June, 1905, and on the 29th day of June, 1905, an order was made and filed in the said Children’s Court by the justice before whom the case was tried, denying a motion for a new trial, which motion was based upon the stenographer’s minutes and exceptions taken upon the trial, and the affidavits of Nicholas D. Collins and Michael Bradley. The notice of appeal states that the defendant also appeals from this order denying his motion for a new trial, and from the whole and every part of the judgment and order.

The defendant and the two boy witnesses who appeared against him were school children attending Public School No. 15 in the borough of Brooklyn. The boy McGuire testifies that he, with the boy Trinneer and the defendant, were in the basement of the school building, when the defendant suggested that they set on fire the gas meter. He testifies that the defendant opened the meter and then he and Trinneer ran to the top of the stairs to the main floor of the building and looked to see if anybody was coming. No one appearing, the witness shouted to the defendant to go ahead. This witness states that before he shouted “ go ahead, no one is -looking,” the fire had not been lit, and he was at the top of the stairs. He also says that he knew defendant was going to set the fire and he was watching to see that nobody came along to interfere. The evidence of the witness Trinneer does not develop that he took any part in the transaction except to keep company with the witness McGuire in running to the top of the stairs and watching to see whether anybody was coming. He makes it very plain by his evidence, however, that when the fire was started he and McGuire were standing at the top of the stairs watching the defendant set the meter on fire. It is entirely clear to me that the witness McGuire was an accomplice. Trinneer was a young lad only eight years old and it can hardly be presumed he understood the enormity of the offense. That Trinneer was an accomplice may be doubtful. The learned district attorney claims in his brief that Trimmer was not an accomplice, and cites section 19 of the Penal Code which provides that a child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime. The question presented by the district attorney, however, it is not necessary to determine in the view we take of this case. The evidence of both of these boys is so full of contradictions and inaccuracies that it is hardly to be supposed it would convince a reasonable mind of the guilt of defendant, who stoutly denied he was guilty of the crime. These two boys are the only witnesses of the offense, and of course if they were accomplices the judgment cannot stand, for there appears in the record no corroboration of their testimony.

It is to be remembered that both of the boys were perfectly positive that when the defendant lit the gas at the meter they stood at the top of the stairway. The motion for a new trial was based upon the affidavits of two men, apparently reputable business men of the borough, who testified that subsequent to the trial they went to the school building for the purpose of ascertaining whether it was possible to see the gas meter from the top of the stairs; they found the situation to be that there were two stairways leading from the cellar; they stationed themselves at the top of each, with the result that they observed that it was wholly impossible to see the gas meter from the top of either, unless there were mirrors in the cellar or unless the boys could have seen around the corner. There is no claim that there was anything like mirrors in the cellar. There was no evidence on the trial except that of McGuire and Trinneer, or in opposition to the motion, contradicting those affidavits. They are snch as convince the mind that what those men saw of the physical condition is the truth. If so, both boys were either mistaken or prevaricating in relation to seeing the defendant light the flame.

Inasmuch as this was the vital point upon the trial of the case I think the motion for a new trial should have been granted by the justice who presided in the Children’s Court, and I, therefore, advise that the judgment be reversed and a new trial ordered.

Woodward, Jenks, Gatnob and Eich, JJ., concurred.

Judgment of the Children’s Court reversed and new trial ordered.  