
    The People of the State of New York, Respondent, v. John M. D. Fanshawe, Appellant.
    Where, by the Penal Code, an offense is defined in the same, or substantially the same, language as was employed in previous statutes, it will he presumed that no change was intended.
    Under the provision of the Penal Code (§ 486) which declares that a person, who willfully burns or sets on fire, in the night time, a dwelling-house in which there is at the time a human being, is guilty of arson in the first degree, it is not necessary to charge in an indictment, or to prove upon the trial, that defendant set the fire with intent to destroy the building.
    Said provision is not qualified or affected by the provision (§ 490) declaring that “the burning of a building under circumstances which show beyond a reasonable doubt that there was no intent to destroy it is not arson.” The intention of the last mentioned provision was to limit and qualify the provision defining arson in the third degree (§ 488).
    Where, therefore, upon the trial of an indictment for arson in the first degree, it appeared that defendant had a room in the house, and in it was a trunk containing his personal effects, upon which he had procured insurance for more than its value, defendant’s counsel claimed that he stai'ted the fire in his room, not with the intent to destroy the building, hut for the purpose of destroying the property insured and defrauding the insurance company. Held, that conceding this to he so, a conviction for the crime charged was lawful and proper.
    Upon challenge by the people of a juror, he testified that before he would convict a person of arson in the first degree upon circumstantial evidence it would have to "be such as to leave no doubt whatever upon his mind, very precise and exact; that he did not refer to a reasonable doubt only, hut to any doubt whatever, and when asked: “ Suppose the court was further to instruct you that if all the circumstances as they were developed by the evidence in the case pointed in one direction beyond a reasonable doubt, and that was toward the guilt of the accused, """ •* * it was to be received and treated in the same way as you would direct evidence, would you do so?” Answered: “I don't think I would.” The challenge was sustained. Held, no error; that although instructions such as were mentioned in the question would be' improper, this could not be made the basis of a legal exception, and did not affect the validity of the ruling.
    (Argued December 23, 1892;
    decided January 17, 1893.)
    Reported below, 65 Hun, 77.
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department entered upon an order made July 7,1892, which affirmed a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered upon a verdict convicting defendant of the crime of arson in the first degree.
    The facts, so far as material, are stated in the opinion.
    
      Charles W. Brooke for appellant.
    This indictment is materially defective, in that it does not charge or allege that the said defendant in setting fire .to the building or dwelling therein described, did so with an intent to destroy the same, and that further, it does not charge the offense of arson in the first degree as described in and made necessary by the Penal Code, and especially within the requirements of section 490 of the said Code. (Penal Code, §§ 486-488, 490; Tully v. People, 67 N. Y. 19; People v. Pierce, 11 Hun, 688; Rex v. Jarvis, 1 Burr. 143.) The conviction upon the indictment was improper and no judgment can be lawfully rendered thereupon. It charged two distinct offenses of arson in the first degree. (Code Crim. Pro. § 278; Nelson v. People, 5 Park. 39; Toner v. People, 6 id. 209; McGarry v. People, 45 id. 157; People v. Dumar, 106 id. 502.) The learned court erred in sustaining the people’s challenge for cause. (People v. McQuade, 110 N. Y. 305.) The court erred in denying the motion made by the counsel for the defendant at the close of the case for the prosecution “ to direct a verdict of acquittal.” (Code Crim. Pro. § 410; Babcock v. People, 15 Hun, 347; Howell v. People, 5 id. 620; Penal Code, § 488; Sheppard v. People, 19 N. Y. 537; Dedien v. People, 22 id. 178.) The learned court erred in charging the jury as follows: “ The questions which you have to determine in this case are just two. Did the defendant willfully, that is intentionally, burn or set on fire in the night time the premises described in the indictment ? 2d. Were the said premises at the time of burning or setting the same on fire a dwelling house in which at said time there was a human being 2” (Benton v. Wickwire, 54 N. Y. 226; People ex rel. v. McClave, 99 id. 83; Rexford v. Knight, 15 Barb. 627; People v. Dumar, 106 N. Y. 510; Code Crim. Pro. § 410; People ex rel. v. Suprs. etc., 13 Abb. [N. C.] 421; McCloskey v. Cromwell, 11 N. Y. 593-601; Purdy v. People, 4 Hill, 397-403; Warrer v. Harris, 20 Wend. 561, 562; People ex rel. v. Matzet, 94 N. Y. 179; People v. McGloin, 91 id. 250; People ex rel. v. Hyde, 89 id. 11; Newill v. People, 7 id. 97; Johnson v. H. R. R. R. Co., 49 id. 425; People ex rel v. Woodruff, 32 id. 355.) Where the intent is made a necessary part of the commission of the crime, and especially where a specific intent is declared to be a prerequisite, such intent must be proven affirmatively by the prosecution, by competent and sufficient testimony and beyond . a reasonable doubt,- just as every other material fact is required to be proven in the case. (Wright v. State, 6 Yerger, 345; 1 Whart. Cr. L. § 635; Myer v. Clark, 45 N. Y. 285.) It is the-legal right of the counsel to submit propositions of law bearing upon the evidence, and it is the duty of the court to instruct the jury upon each proposition. The denial of such a right is the subject of an exception and review upon appeal. (Chapman v. McCormick 86 N. Y. 479; Lamar v. State, 64 Miss. 428; Aldridge v. State, 59 id. 250; People v. McQuade, 110 N. Y. 304.)
    
      Henry B. B. Stapler for respondent.
    It is submitted that this evidence shows that the defendant was guilty of the crime charged against him in the indictment. (Penal Code, § 486; People v. Butler, 16 Johns. 203; Levy v. People, 80 N. Y. 327; 2 Russell on Crimes, 1024; People v. Kelly, 55 N. Y. 571; People v. Cignarale, 110 id. 26, 27; People v. Kelly, 113 id. 647; People v. 117 id. 483; People v. Trezza, 125 id. 740.) The contention of the defendant that no conviction of the crime of arson can be had in this state where the evidence shows that the motive for setting fire to a building was to accomplish a result other than the destruction of the building cannot be sustained. (Penal Code, §§ 486, 487, 488; Pierson v. People, 79 N. Y. 433; Luke v. State, 49 Ala. 30; People v. Conroy, 97 N. Y. 77; Foster v. People, 50 id. 609.) The inadvertent remark of the prosecuting officer was but a technical error, which was entirely cured by the immediate direction of the court to disregard it. (People v. Yute, 60 Cal. 95; State v. Degonia, 69 Mo. 485; State v. Rivers, 90 N. C. 738; People v. Greenwall, 115 N. Y. 525; Code Crim. Pro. §§ 464, 527, 528; People v. Ruloff, 45 N. Y. 213.) An examination of the record discloses no errors in the admission or rejection of testimony. (Ruloff v. People, 45 N. Y. 225; Cowley v. People, 83 id. 476; People v. Buddensieck, 103 id. 487; Hoe v. Sanborn, 36 id. 98; Hallahand v. R. R. Co., 102 id. 199; Blake v. People, 73 id. 536; People v. Fastwood, 14 id. 562; Du Bois v. Baker, 30 id. 355; Code Crim. Pro. § 542.) The exception taken to the refusal of the court to permit the counsel for defendant to read from certain law books to the jury is without merit. (Williams v. B. E. R. R. Co., 126 N. Y. 104; Ryan v. Porter, 57 Hun, 257.) It is submitted that there were no errors in the charge of the court or in the refusal to charge the requests of the defendant. (Sindram v. People, 88 N. Y. 169; People v. Niles, 44 Mich. 609; Bronnenling v. Charman, 80 Ind. 477; Houser v. State, 58 Ga. 80.) The exceptions taken upon the examination of jurors, it is submitted, present no errors for the consideration of tins court. (People v. Poole, 80 N. Y. 646; Murphy v. People, 9 Hun, 104.) As to the contention that the indictment was defective in that it, as alleged, charged two offenses of the crime of arson in the first degree it is to be observed that even if this were so, no question in relation thereto is before this court on this appeal; the only method under the Code of Criminal Procedure by which this question can be raised is by demurrer, and it is not so raised in this case. (Code Crim. Pro. §§ 270, 323, 331; People v. McCarthy, 110 N. Y. 310.)
   O’Brien, J.

The defendant was convicted of the crime of arson in the first degree, upon proof, sufficient for the consideration of the jury, that he willfully and maliciously set fire to a lodging-house in the city of New York, in the night time, and in which there were lodging at the time fifteen or twenty persons. The defendant had a room in the house, and the proof tended to show that the fire originated in this room. He had a trunk in the room containing his personal effects, which were insured for one thousand dollars, and this property was partially destroyed before the fire in the room was extinguished. The proof tended to show that this property was insured for much more than its value, and it appeared that though the defendant, in his proofs of loss, stated the value at over §1,500, the claim was settled with the insurance company for §350. The defendant’s counsel assumes as we understand him, that the intent was to destroy the trunk and other personal effects insured for the purpose of defrauding the insurance company, but insists that the defendant could not be convicted of arson in the first degree if he set the fire in his room with this intent. His position is that a lawful conviction could not have been obtained upon the facts as it was not charged in the indictment nor established by any proof whatever, that the defendant set the fire with the intent to destroy the building. It is obvious that if the learned counsel is right in his contention that an intent to destroy the building set on fire is a necessary element in the crime of arson in the first degree, then this conviction cannot be upheld. It is clear that such intent was not a necessary element of the crime as it existed at common law or under any statutory definition prevailing in this state prior to the enactment of the present Penal Code. At common law the offense was defined as the willful and malicious burning of another’s house. (4 Black. Com. 221, 2 Bishop’s Crim. Law, chap. 2, § 8; 2 Wharton’s Crim. Law, § 1658.) It has always been regarded as an offense of great malignity, and was formerly punishable with death. Even under our statute, prior to the Penal Code, arson in the first degree was classed among capital crimes, and was punished in the same manner as murder in the second degree. (3 R. S. [7th ed.] 2472.) It was always looked upon as a crime that endangered human life and the security of human habitations, and hence deserving of severer punishment than any offense aimed at the destruction of property merely. The statutory definitions of the crime that have long existed in this state have embraced different degrees, many of which were framed, doubtless, for the protection of property. But the act of setting fire to a dwelling-house in the night time, in which human beings were lodged, has always been classed as an offense ranking with murder in its enormity and its dangerous consequences to society, and it was never supposed that the particular intent or motive that prompted so dangerous an act, was a necessary element of the crime, so long as the act itself was willful and malicious. When it was shown that a person willfully set fire to a house in the night where human beings were at the time, it was supposed that this act alone evidenced such moral depravity and such a reckless disregard of human life as to constitute the offense irrespective of the actual motive from which the act proceeded. So that if it be true that the defendant in this case set fire to his room for the purpose of destroying the property insured, in order to defraud the insurance company, and not to destroy the building, this would not change the character of the offense, as the law on this subject has heretofore been understood. All this, the learned counsel for the defendant contends, has been changed by the provisions of the Penal Code, and thus it becomes necessary to inquire whether the legislature intended to or have in fact worked such an important change in the law by the passage of that statute. While it was intended to define all criminal offenses it was. a revision of prior laws on this subject and a substitute for the scattered and fragmentary legislation that preceded it, and must be construed with reference to the law which it replaced. Where an offense is defined in the same language as was employed before, or substantially the same, it will be presumed that no change was intended. (People v. Jaehne, 103 N. Y. 193; People v. Stevens, 109 id. 162; People v. Richards, 108 id. 144; People v. Palmer, 109 id. 110.) Prior to the enactment of the Penal Code arson was defined by statute in this state and divided into four degrees, and many of the acts embraced within the different degrees of the crime were obviously injuries to property merely. In the Penal Code the fourth degree has been dropped out, and all acts amounting to arson are concisely stated in three sections defining three degrees of the crime. Section 486 declares that a person who willfully burns or sets on fire in the night time a dwelling-house in which there is at the time a human being, is guilty of arson in the first degree. This case is certainly within the words of that section unless it is limited and modified by some oother provision. In the two following sections the second and third > degrees of the crime are defined, and then the punishment is prescribed in the next section. Then follows section 490, which reads as follows: “ The burning of a building under circumstances which shows beyond a reasonable doubt that there was no intent to destroy it, is not arson.” The learned counsel for the defendant insists that this provision must be read in connection with section 486, which defines arson in the first degree, and when thus read the intent to destroy the building is an essential element of the crime which must be alleged and proved. As before observed, arson does not belong to that class of offenses which requires a specific intent to do the particular thing charged in distinction from general malice (2 Bishop on Crim. Law, § 14) ; but if such an important change has been made in the law as is claimed by the defendant’s counsel, it is plain that the defendant could not have been convicted of arson in any of its degrees, as defined in the Penal Code, and his offense at most amounts to nothing more than an offense under section 637, for willfully settmg tire to a building under circumstances not amounting to arson in any of its degrees. Bearing in mind the fact that the Penal Code was a revision of pre-existing statutes on the subject of crimes, and that no change in the law can be presumed to have been intended unless clearly expressed, and recalling the condition of the law on the subject of arson in the first degree as it existed prior to the enactment of the Penal Code, it is impossible to believe that any such result was intended in the enactment of section 490. The thought which was in the legislative mind must prevail when it can be ascertained, though apparently contrary to the letter of the statute, and it must be a clear case that would warrant the courts in holding that the legislature intended to reduce the offense of which the defendant was -convicted from one of the highest known to the law to a misdemeanor. There is nothing in the nature of the crime, or in the law on the subject, as it has existed for centuries, that would be likely to induce the law-making power to introduce such an element into the definition of arson in the first degree. iNeither can it be supposed that the legislature enacted section 490 without some purpose in view, and while we are quite clear that the purpose was not to change the nature of the crime of arson in the first degree, it is not so easy to ascertain just what was intended. It is safe enough to say, however, that it was enacted from abundant caution, in order to exclude from the operation of the previous sections, in which the different degrees of arson are defined, acts which never constituted the offense, and possibly some acts which did. It is quite possible that it was an unnecessary precaution, as the courts would doubtless hold that the three sections referred to contained the whole law on the subject, and that a criminal statute could not be enlarged by construction to include acts not specifically enumerated. It was always the law that to set fire to or burn a house by negligence or mischance or accidentally while in the commission of a mere civil trespass was not arson (2 Bishop’s Crim. Law, § 15); but it has been said that if a person set fire to or burn a house while engaged in the commission of a felony, it is arson, though there was no intent to set the fire or burn the building (Id. §§ 14, 15). The legislature, no doubt, intended to exclude all such cases from the definition of the offense by the enactment of section 490. It was.providedby section 488, defining arson in the third degree, that “ a person who willfully burns or sets fire to * * * a building, structure or other erection, under circumstances not amounting to arson in the first or second degrees, is guilty of arson in the tim’d degree.” This was a new definition of the crime, expressed in broad and comprehensive language, which, in the judgment of the legislature, might be construed to include acts which before did not amount to arson, and hence section 490 was passed as a precaution against such a result. There was no intention to qualify the definition of arson in the first degree, as expressed in the previous section, but to limit and qualify the broad language of the section defining arson in the third degree. It follows that the offense of which the defendant was convicted was sufficiently charged in the indictment and the refusal of the trial court to charge the jury that an intent to destroy the building was a necessary element of the crime, was not error.

There is an exception in the case to the decision of the court sustaining a challenge to a juror on the part of the people which it may be proper to notice. This juror had testified that before he would convict a person of arson in the first degree upon circumstantial evidence it would have to be such as to leave no doubt whatever upon his mind, very precise and exact. He explained his meaning further by stating that he did not refer to a reasonable doubt only, but to any doubt whatever. After some further examination the learned recorder propounded to him the following question: Suppose the court was further to instruct you that if all the circumstances as they were developed by the evidence in the case, pointed in one direction, beyond a reasonable doubt, and that was toward the guilt of the accused, and if it did it Avas to be received and treated in the same way as you Avould treat direct evidence, would you do so ? ” The juror answered: “ I don’t think I would.” Whereupon the court sustained the challenge and the defendant’s counsel excepted. It needs no argument to prove that instructions such as are mentioned in the question from court to jury would he improper hut it does not follow that the question can be made the basis of a legal exception, as it was intended to test the extent of the juror’s prejudice against circumstantial evidence. It was another way of inquiring whether the juror would convict at all upon circumstantial evidence. The exception was not to the question, but to the decision excluding the juror, and as he had stated before the question was propounded, in substance, that he would hesitaté to convict, even where the circumstances were of such a character as to establish guilt beyond a reasonable doubt, there was no error in the result within the recent decisions of this court. (People v. McQuade, 110 N. Y. 297; People v. McGonegal, Dec. 1892.)

There are some other exceptions in the record but we think that they have been fully considered in the court below as well as the questions here discussed and correctly disposed of. The record does not disclose any error that entitles the defendant to a new trial.

It follows that the judgment must be affirmed.

All concur.

Judgment affirmed. 
      
       136 N. Y. 631.
     