
    The People, etc., Resp’ts, v. John McGrath and Mary McGrath, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 30, 1886.)
    
    Criminal trial—Husband and wife—Charge to jury—Conviction of PARTIES JOINTLY INDICTED.
    The appellants, who are man and wife, were convicted at the court of general sessions of the crime < f arson in the second degree. The court charged the jury, “ There has been no special claim made in reference to the wife in this case.” It is claimed by the defendants’ counsel that they are both innocent; and it is fair to say, under the evidence, if one is convicted, both should be. Held, that this charge was 'erroneous because it involved the proposition that no matter what might be the evidence in the ca e, no matter whethe- an equal amount of criminality or not was established by a proper estimate of the evidence, the jury had a right to convict botn.
    
      Appeal from a judgment of the court of general sessions convicting the appellants, who are husband and wife, of the crime of arson in the second degree.
    
      Hovje & Hummel, for app’lts; McKenzie Semple, for resp’ts.
   Brady, J.

The evidence by which the people essayed to sustain the charge made against the appellants was circumstantial—a usual feature it may be said in prosecutions of this kind. But it was insisted upon the close of the evidence for the prosecution that although there was sufficient to justify the court in submitting the case to the jury upon the question of whether or not the fire was of incendiary origin, nevertheless there was not sufficient evidence to connect the appellants with the fire—a very essential element of the prosecution, for the reason that the jury were not only to find whether the fire was of incendiary origin, but whether the defendants were the incendiaries, and being such were guilty of the offense alleged against them. And it is insisted by the appellants that on the evidence, and, therefore, upon the merits, the verdict is against law and unjust. It is not necessary, however, to consider that proposition in detail, for the reason that an error was committed by the learned justice in charging the jury, in consequence of which a new trial must be granted. Upon the argument of this appeal such was the impression, and it has been confirmed by a subsequent examination and consideration of the case and of the charge.

The court charged the jury as follows: “ There has been no special claim made in reference to the wife in this case. It is claimed by the defendant’s counsel that they are both innocent; and it is fair to say, under the evidence, if one is convicted both should be.”

The learned justice, it is thought, was not justified in the administration of his office in saying to the jury that their verdict should be guilty or not guilty as to both defendants, because that involved the proposition that no matter what might be the evidence in the case, no matter whether an equal amount of criminality or not was established by a proper estimate of the evidence, the jury had a right to convict both.

It may be assumed that if the jury believed the husband guilty and the wife innocent, or vice versa, as suggested by the learned counsel for the appellants, they would, under the charge, desirous of obeying their oaths, convict both, being unwilling to permit the guilty one to escape.

The learned judge subsequently charged that when husband and wife were arraigned for the commission of the same offense, if the acts constituting it were committed in the presence of the husband, a legal presumption existed that she was acting by his coercion, although it was a presumption that could be rebutted by proof that she in fact acted upon her own responsibility.

He then, after briefly discussing a part of the evidence, repeated the charge, saying:

“Therefore, I must say to you that your verdict should be £guilty ’ or ‘ not guilty ’ as to both defendants.”

No view of the case, either upon the facts or on the law by which it is governed, furnishes any legal reason or rule by which this charge can be sustained.

Among other objectionable elements by which it is surrounded may be stated the abnegation of the rule as to reasonable doubt, which might be well applied by the jury, in the exercise of their judgment, to the one and not to the other of the appellants, and yet, under the charge, both would have to be declared guilty. It is impossible for us to say that this direction did not prejudice the appellants, or one of them. The duty of finding both guilty, or both innocent, was so impressed upon the jury that they could not have failed to understand it as an imperative obligation.

For these reasons the judgment of conviction must be reversed and a new trial ordered.

Davis, P. J., and Daniels, J., concur.  