
    The People of the State of New York, Plaintiff, v. Isidor Tirnauer, Defendant.
    (Supreme Court, Kings Special Term,
    July, 1912.)
    Criminal Law — Code Crim. Pro., § 529—certificate of reasonable doubt — evidence — witnesses.
    The provision of section 529 of the Code-of Criminal Procedure, as amended in 1907, that an application for a certificate of reasonable doubt must be “ founded upon the record ” of the cause,' etc., means only that such record could be used upon the motion, not that a copy thereof should be attached to the order to show cause.
    Upon such an application, the moving papers must contain a formal specification of the particular rulings alleged to have been erroneous and of any other grounds upon which the motion is based.
    Where the remarks of the district attorney during a trial, who was twice told by the court that his remark was “ improper,” were so prejudicial to defendant as to entitle him to have his motion for the withdrawal of a juror granted, the denial of the motion is such error as justifies the granting of a certificate of reasonable doubt as to the lawfulness of his conviction.
    Where, upon a trial for arson in the second degree, the prosecution offers no evidence that the property burned was insured for more than it was worth, and the testimony of a witness for the people and of defendant’s witnesses was to the contrary, a charge to the jury “ that the people contend that not only did he set the place on fire, but that he had a motive for setting it on fire; that he had a policy of insurance from which he. hoped at the time to realize a sum of money in excess of what he could get for it in the usual channels of trade or quicker than he could get it in the usual channels of trade,” and that “ the policy of insurance was in excess of the value of the property and that he hoped to realize profit by this quick method of getting rid of his property,” duly excepted to, is erroneous because unsupported by and contrary to the evidence.
    Under the provision of section 779 of the Greater New York charter, conferring upon fire officials the right to investigate into the cause of fires and into any supposed case of arson and which declares that the evidence so gathered shall in no manner be used in any criminal proceedings, it was error to allow fire marshals to testify over defendant’s objection and exception to evidence gathered by them in the course of their official investigation oE the fire at defendant’s place of business for which he was indicted for arson.
    Where a witness, the acting fire marshal, despite the admonition of the court, repeatedly referred to his previous knowledge of defendant’s connection with another and former “ crooked ” fire and gave his opinion and conclusions that the one in issue was also “ crooked ” and persisted in giving incompetent testimony in the guise of questions and statements which he claimed to have put to the defendant in the course of his investigation, and the trial judge used every means to prevent this infringement of defendant’s rights short of stopping the trial, defendant will be granted a certificate of reasonable doubt.
    Application for certificate of reasonable doubt.
    Isidor Canner, for application.
    Matthew J. Smith, district attorney for Queens county, opposed.
   Benedict, J.

The defendant has been convicted, by the verdict of a jury in the County Court of Queens county, of the crime of arson in the second degree, and upon the thirty-first day of May, 1912, he was sentenced by the county judge of that county to be confined in the state prison at Sing Sing for a term of not less than five nor more than ten years. He has taken an appeal to the Appellate Division of the Supreme Court from the judgment of conviction and now asks for a certificate of reasonable doubt as to the lawfulness of his conviction, under the provisions of section 527 of the Code of Criminal Procedure.

In the system of criminal jurisprudence in force in this state every person convicted of a felony or a misdemeanor has an absolute right to appeal from the judgment of conviction, and no certificate of consent is required to render such appeal effectual, but his appeal will not stay the execution of his sentence (except in the case of an appeal to the Court of Appeals from a judgment of death), unless he obtains a certificate of _ reasonable doubt. Code Crim Pro., § 527; People v. Sharp, 9 N. Y. St. Repr. 155. Such a certificate formerly was “ of the judge who presided at the trial, or of a judge of the Supreme Court, that in his opinion there is reasonable doubt whether the judgment should stand.” See Code Crim. Pro., § 527, being chap. 442, Laws of 1881. This provision was continued in force, except for the substitution of the word “ justice ” for the word “ judge” of the Supreme Court, through the several amendments to the act made by chapters 360, Laws of 1882, 493, Laws of 1887, 880, Laws of 1895. By chapter 479 of the Laws of 1907, however, the power to grant such a certificate was no longer one to be exercised by a justice of the Supreme Court, but by the court itself, and by section 529 an application for the certificate was required to be made to and heard and determined “by a regularly appointed special term of 'the supreme court held within the judicial district in which the conviction was had,” unless the application were made to and the certificate made by the court in which the conviction was had, that court being a court of record. See People v. Meadows, 62 Misc. Rep. 573.

The effect of this change, as I view it, is, to a great extent, one of practice merely, rather than one of substance, and so I think that the rules formerly applicable as to the degree of doubt which must exist in the judicial mind to warrant the granting of the certificate are still in force; but, instead of the justice being satisfied, the court must judicially determine that in the opinion of said court there is reasonable doubt whether the judgment should stand,” and this determination will be expressed in a formal order to be entered upon the records of the court.

The rule to which I have reference was stated by Hr. Justice Woodward in People v. Hummel, 49 Misc. Rep. 136, in a quotation from Hr. Justice Truax, as follows: “ On an application for a stay of proceedings in a criminal case it is not necessary that the judge to whom the application is made should be satisfied that the judgment will be reversed. It is enough that he is satisfied that a question of law is raised sufficient for the consideration of the appellate tribunal. On such application it is not required that the judge to whom the application is made should determine whether the error complained of warrants the granting of a new trial, for the granting or refusing of a new trial is vested in the appellate court, which may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.’ ”

And Mr. Justice Potter in People v. Sharp, supra, said: “ This devolves the duty upon the judge to whom the application for such certificate is made, to form an opinion whether the judgment should stand.” See also People v. Hall, 23 Misc. Rep. 479.

To grant a certificate, the judge hearing the application need not arrive at a positive conclusion that the trial court erred, but it is enough if he have reasonable doubt as to the correctness of the law laid down by that court. People v. Emerson, 6 N. Y. Cr. Rep. 157; People v. Valentine, 19 Misc. Rep. 555 ; People v. Wentworth, 3 N. Y. Cr. Rep. 111. It was said by Justice Wright in People v. Hartung, 17 How. Pr. 151, that, where a judge has grave doubt of the correctness of the rulings of the trial judge, it is his duty, in the exercise of the judicial discretion with which he is clothed, to stay the execution'of the judgment. And to the same effect is People v. Hendrickson, 1 Park. Cr. Rep. 396, which was a case where there was an exception involving a gravely important question, in regard to which there was a conflict of authority which remained unsettled by the courts of this state. It is not necessary for the applicant to show that the alleged error did, in fact, prejudice the defendant, but the judge must be satisfied that the error complained of could not in any way have affected or prejudiced the defendant before he is warranted in denying a certificate. People v. Valentine, supra. In the light of these rules, which I shall assume are now as applicable to the court to which the application for a certificate is made, as they were formerly to a justice of that court, the application for a certificate in the present case must be granted.

Before, however, discussing the merits of the application, I shall consider a point which is in the nature of a preliminary objection made by the learned district attorney to the hearing of the application. He says: The motion is brought on by an order to show cause attached to which order is the affidavit of the defendant’s attorney Isadore Canner. It will be observed that in this order it is recited that the motion is made upon said affidavit. It is not m’ade upon any other papers or upon the record of trial or any part of it; simply and solely upon the aforesaid affidavit.” And he claims that this is insufficient and cites as authority People v. Hess. 6 Misc. Rep. 246, which was decided in 1893. In this I think he is wrong. Section 529 of the Code of Criminal Procedure, as amended in 1901, provides that such an application must be founded upon the record of the cause and a notice of motion duly served on the district attorney of the county where the conviction was had, or upon such record and an order to show cause granted either by the trial judge or by a justice of the supreme court; the moving papers must contain, a formal specification of the particular rulings alleged to have been erroneous and of any other grounds upon which the application is based.” The affidavit accompanying the order to show cause, which was granted by the county judge before whom the trial was had, refers repeatedly to the record of this cause and a copy of the record was submitted upon the argument. The moving papers spoken of in the section do contain a formal specification of the errors claimed to have been made, and point .out the various pages of the record where such alleged errors may be found. The application is “ founded ” upon the record and the order to show cause. I think that the meaning of the statute was not that a copy of the record should be attached to the order to show cause, but only that the record could be used upon the application. The statute does not say that the moving papers must contain the record but only that they must contain a formal specification of the particular rulings alleged to have been erroneous and of any other grounds upon which the application is based.

Proceeding now to the merits. The application specifies a number of errors committed upon the trial which it is claimed will require the reversal of the judgment. The first to be considered is the remarks of the district attorney who tried the case. These were, I think, very prejudicial to the defendant and entitled him to have his motion for the withdrawal of a juror granted. The motion was not granted, although the court twice stated to the district attorney that his remark was “ improper,” and thereupon the defendant excepted. It seems to me that the remarks were fully as obnoxious as those for which the Court of Appeals reversed the judgment in People v. Smith, 162 N. Y. 520, 581.

Secondly. I think that that portion of the court’s charge to the jury “ that the people contend that not only did he set the place on fire, but that he had a motive for setting it on fire; that he had a policy of insurance from which he hoped at the time to realize a sum of money in excess of what he could get for it in the usual channels of trade or quicker than he could get it in the usual channels of trade,” and that “ the policy of insurance was in excess of the value of the property and that he hoped to realize profit by this quick method of getting rid of his property ” was erroneous because it was unsupported by and contrary to the evidence. There was no evidence offered by the people that the property was insured for more than it was worth. The testimony of Kronoff, a witness for the people, was to the contrary and so was the testimony of defendant’s witnesses. This portion of the charge was duly excepted to, and under the ruling in People v. Barberi, 149 N. Y. 256, it is error for the court to suggest to the jury and submit for their consideration a theory of the facts which has no foundation in evidence.

Thirdly. I come now to the consideration of the third specification of error which I shall notice. It involves the question of the right of the prosecution to use upon the trial any testimony or evidence obtained by the fire marshals in their investigation and inquiry into the cause of this fire, under the provisions of the charter as they existed when the investigation was made. The fire took place on March 21, 1911, at the defendant’s place of business in Jamaica avenue, Richmond Hill, Queens county, in the city of Hew York. At that time section 779 of the Greater Hew York charter contained the following provisions: “ The fire commissioner, himself or by said marshals, is hereby authorized and empowered to investigate, examine and inquire into the origin, details and management of fires in the city, and also of any supposed cases of violation of any of the provisions of this chapter, or any supposed cases of arson or incendiarism, which may be brought to his notice; provided, that any testimony or evidence taken as aforesaid shall be for the information and instruction of said fire commissioner in the discharge of his duties, and in the prevention of future fires, and the protection of property and shall be carefully kept in the archives and possession of said fire department, and shall in no manner he used in any criminal proceeding or action, but may be placed before any grand jury in said City of Hew York.”

The witness Brophy was acting fire marshal, the witness Anderson was assistant fire marshal and the witness Perris was deputy fire marshal, in the boroughs of Brooklyn and Queens of the city of Hew York. Each of them was allowed to testify over the defendant’s objection and exception to evidence which he had gathered in the course of his official investigation of the fire in question. The charter provision conferring upon these officials the right of investigation into the causes of fires and into any supposed cases of arson or incendiarism declares that the evidence shall in no manner he used in any criminal proceeding. The evidence gathered was used in this case as the basis of testimony of these official witnesses, and no one can read their testimony without reaching the conclusion that it must have been the most potent part of the case of the people, nor that without it the defendant would never have been convicted.

It is probably true, as the district attorney points out, that this section is practically repealed by chapter 899 of the Laws of 1911, but that chapter did not go into effect until October 19, 1911, and there is nothing in it to show the legislative purpose to enact a retroactive law.

Lastly. During the course of his examination the witness Brophy repeatedly, despite the warning of the presiding judge, referred to his previous knowledge of the defendant’s connection with another and previous “ crooked ” fire, and stated his opinions and conclusions that the one in issue was also crooked,” as he called it. He-was persistent in dragging such incompetent testimony into the case in the guise of questions and statements which he claimed to have put to the defendant in the course of his investigation. The minutes teem with this kind of evidence, which from its very nature is difficult to refute, and very convincing to a jury. The learned trial judge used every means to prevent this infringement of the defendant’s rights to a proper and legal trial, short of stopping the trial. I think it would have been wiser had he done this. See People v. Brown, 110 App. Div. 490; affd., 188 N. Y. 80 where the Court of Appeals held that such testimony was inadmissible, saying: “ It was very dangerous evidence in the case. It was not harmless, as claimed. * * * It must have had a serious effect upon the minds of the jury and may well have induced a verdict of guilty which would not otherwise have resulted.”

While it may very well be that this defendant was guilty of the dangerous and abhorrent crime of which he has been found guilty, I am not now without grave doubts of the correctness of those parte of his trial to which reference has been made. Conscientiously entertaining such doubts, I deem it my duty to afford the prisoner an opportunity of presenting them, with others raised in the case, to the more deliberate examination and judgment of an appellate tribunal. .

Ordered accordingly.  