
    
      Supreme Court-General Term-Fifth Department.
    January 22, 1892.
    PEOPLE v. MICHAEL MURPHY.
    (44 St. Rep. 7.)
    1. Evidence—Arson.
    Under an indictment for burning a barn about which the defendant had been employed, evidence of the poisoning of cattle and of injury to carriages within it just before the fire are competent to show that the criminal was familiar with the premises, and to show malice.
    2. Same—Opinion—Handwriting.
    Where experts have testified upon a comparison of handwriting that a threatening letter was written by the defendant, and his counsel on cross-examination produced other letter which some of the experts thought were written by him. and offered to show that part of the letters were written by the brother of the defendant, the evidence was held to have been properly excluded.
    3. Witness—Impeachment-—Contradiction.
    A party cannot contradict a witness upon immaterial and collateral matter called out on his cross-examination.
    Appeal from the judgment of conviction of the defendant at the Niagara county sessions of the crime of arson in the third degree entered in that county on the 11th day of June, 1891.
    He was sentenced to be confined in the Auburn state prison for the term of five years and six months. Defendant was charged in the indictment with having feloniously set fire to 'and burned a certain bam in the city oí Lockport, the property of one Elisha Moody.
    T. F. King, district attorney, for the People.
    Richard Crowley, for appelant.
   LEWIS, J.

It is not necessary to rehearse the evidence given upon the trial, for, though mainly circumstantial, it was amply sufficient to warrant the conviction of the defendant of the crime of which he was charged. The evidence as to the poisoning of the animals and the injuries to the carriages in the bam was important and competent. The defendant had been for a number of years before the commission of the crime employed in and about the barn. He was familiar with the location of the carriages and the places where the animals were kept. He knew the presence in the barn of the poison and the location of the grain and pail used in feeding the poison to the cow. Hence, the evidence as to the injuries to the carriages and the poisoning of the animals was important and competent as tending to show that the person who committed the crime had an intimate acquaintance with the premises and the surroundings; and it was also competent as tending to show that the person who committed the crime entertained, a it was shown the defendant did, malicious and revengeful feelings toward the owners of the barn and property.

The exception of the defendant to evidence of Edward M. Moody as to the ownership of the barn burned is untenable. If incompetent, the defendant suffered no injury therefrom, as there was other and competent evidence given upon the trial establishing the fact that Elisha Moody was the owner of the barn as alleged in the indictment. Elisha Moody was living in the house upon the land on which the barn stood, and was in occupation thereof as tenant by curtesy and was, therefore, for the purposes of the action, the owner of the barn.

The People called a number of expert witnesses who testified that the letter, Exhibit “A,” addressed to Mrs. Rehm, which contained threats to bum her house and barn and burn the property of Mr. Moody, and the letter, Exhibit “B,” addressed to Mr. Elisha Moody, containing threats, were in the handwriting of the defendant. These witnesses formed their opinion as to the letters being written by the defendant by comparing them with other writings conceded to have been written by the defendant. Upon the cross-examination of these witnesses, the defendant’s counsel produced nine different specimens of writing, and asked these expert witnesses of the People their opinion as to whether they were written by the defendant. Some of the witnesses testified that they thought they were all in the handwriting of the defendant. Others thought a portion of them were written by the defendant, and that the balance of them were not written by him. John Murphy, a brother of the defendant, was thereupon called as a witness, and the defendant’s counsel offered to prove by him that he wrote some of the nine specimens shown the People’s expert witnesses, and that others of them were not written by him. The defendant did not offer to show which ones were written by the witness, nor those that were written by him. The evidence was excluded, and the defendant duly excepted.

The opinions of the People’s witnesses as to the defendant having written Exhibits “A” and “B” were not based upon an examination of the writings produced by the defendant. They had not seen them when they gave their testimony. So that, as far as their evidence was concerned, it was immaterial who ¡wrote the nine papers produced by the defendant. If the evidence had been admitted, it would have been collateral to the material question, to wit: the authorship of Exhibits “A” and “B.” The defendant was, therefore, concluded by the answer of the People’s witnesses. Van Wyck v. McIntosh, 14 N. Y. 439; Hilsley v. Palmer, 32 Hun, 472.

We have examined the other exceptions of the appellant and find nothing in them calling for a reversal of the judgment.

The judgment of conviction should be affirmed and the proceedings remitted to the court of sessions of Niagara county, with directions to proceed thereon.

Judgment affirmed, and the proceedings are remitted to the Sessions of Niagara county to proceed thereon.

DWIGHT, P. J. and MACOMBER, J., concur.  