
    The People of the State of New York, Respondent, v. Henry H. Fisher, Appellant.
    Third Department,
    December 30, 1909.
    Crime—trial — charge — credibility of witnesses — force of evidence of good character—when bias of judge not shown.
    On the trial of an indictment for arson, it is not error for the court to refuse to charge that if certain witnesses who had sworn on behalf of the People, or any one of them, have knowingly testified falsely to any material - fact, the jury may disregard their entire testimony,where the proposition involved in the request to charge had been substantially charged in response to the defendant's previous request.
    It is not legal error for a trial-judge to indicate his opinion. It is only where there is evidence of marked bias, and where, in the opinion of the appellate court, the balance of proof is only slightly in favor of the prosecution, and the interests of justice seem to require another trial, that the .court will reverse a conviction for such a cause.
    Charge in regard to the force which might be given to evidence as to the good character of the defendant examined, and/ieZd, that the jury was properly instructed.
    Appeal by the defendant, Henry H. Fisher, from a judgment of the County Court of Ulster county, rendered on the 21st day of ^November, 1908, convicting the defendant of the crime of arson in the second degree, and also from an order entered in the office of the clerk of said county on the 21st day of December, 1908, denying the defendant’s motion for a new trial.
    
      1f. Frank O’Beilly \_Bosooe Irwin-oí counsel], for the appellant.
    
      William D. Cunningham, District Attorney, for the respondent.
   Smith, P. J.:

The defendant was indicted by the grand jury of Ulster county for the crime of arson in the second degree, in that on the 17th day of March, 190'8, he set fire and burned his dwelling house in the city of Kingston with intent to destroy the- same, in which dwelling house at the time there was no human being.' In that month the defendant kept a saloon at the corner of Chambers.and Union streets^ in the city of Kingston, and his family lived upstairs above the saloon. Upon the night in question one Sessler, together with one Jacob Banholzer, at the direction of the defendant, set fire to the building. Both of these parties were witnesses for the People upon the trial, and their testimony was fully corroborated. It is not necessary here to set out in detail the evidence upon which the conviction rests. It is sufficient to say • that the guilt of the defendant was abundantly established and beyond a reasonable doubt, and no question is made by the appellant upon this argument as to the sufficiency of the proof. The judgment is challenged solely upon the ground of certain rulings- of the learned trial judge upon the trial.

At the close of the trial the court was requested to charge if certain witnesses who had sworn in behalf of the People, or any one of them, have knowingly testified falsely to any material fact, that the jury may disregard their entire testimony.” This the court declined to charge as requested and to its refusal an exception was taken. This would undoubtedly have been error except for the charge made upon the defendant’s request .just preceding. In the preceding request the court was asked to charge that if any witness on the part of the People has knowingly or wilfully testified falsely to any material fact, that the jury may disregard the entire .testimony of such witness.” To this the court replied: “That applies not only to the People but to the defendant, or any other, but you are not obliged to disregard it.” Then follows the request and refusal to charge which is made the subject of challenge. It would seem, therefore, that the proposition to charge involved in the request had been substantially charged, and that the defendant has no ground ,of complaint on account of the refusal of the court to repeat the rule of law which had once been given ..to the jury. The next ground of challenge is as to the charge of the court in reference to the force of the evidence as to good character. After stating the claim of the defendant, that he stood well in the community, the law is thus stated: “ And the law is, gentlemen, upon that subject that good character is to be considered by you the same as all other evidence; that good character alone may cause in your mind a reasonable doubt, but it doesn’t have to; you weigh the fact of good character the same as any fact in the case with all the facts and then say where does the balance go and determine it that way. A man of good character may, or' may not commit a crime. It is simply a species of circumstantial evidence. In the ordinary run a man of good character does not commit a crime. We start with that fact, good character, and then commence to weigh it with all the other facts in the case.” Thereafter the defendant’s counsel requested the court to charge: That the character of the defendant may be such as to create a reasonable doubt in the minds of the jury as to the guilt of the accused, and lead them to believe in view of the improbabilities that a person of such character would be guilty of the crime charged that the other evidence in. the case is false or the witnesses mistaken.” To'this the court replied: “ That’s a general statement of law ;-as I told you before, evidence of good character is a circumstance to be considered with all the other evidence in the case.” The defendant’s counsel then requested the court to charge: “ That evidence of good character may in itself create a reasonable doubt, when without it none would exist as to the defendant’s guilt, and that such evidence in the exercise of a sound discretion by the jury may be sufficient to acquit the defendant.” To this the court replied: That is a proposition which is true. I have charged before, whatever weight you give to good character is for you to say, considered with all the other facts.” To this reply the defendant excepted. The jury'were rightly instructed as to what weight should be properly given to evidence of good character. The defendant points out other statements in the charge which he claims contain an intimation that, in the opinion of the court,- in view of other facts proven in this case, the evidence of good character was not conclusive, and the judgment is further challenged upon the ground that the charge of the court was biased as against the defendant, and indicated'a conviction in the mind of the trial judge of the defendant’s guilt. It is not- legal error, however, for a trial judge to indicate his opinion, and in fact it is. sometimes difficult not to 'do so in submitting a case fully to the jury. In the case at bar the questions of fact were left fully for the jury -to determine, and. the court in its charge in no way directed or advised- the verdict that should be rendered. It is only-in those cases where the evidence of bias is marked, and where in the opinion of the appellate court the balance of proof was only slight in favor of the prosecution, and where in the interest of justice.the defendant should be given another chance to prove his innocence, that the court would reverse a conviction for such a cause. No such condition here exists. The defendant further complains that lie was not allowed to ask the witness Sessler who was the defendant’s accomplice, whether he expected to be prosecuted, but if the sustaining of an objection.to that question be error, the error is- clearly cured in the testimony immediately following, where he swears: “I don’t know whether I expect to be taken care of or not for testifying, or for what I have testified to to-day. I don’t remember if I expected to on the last trial. I do .not remember testifying on the last trial in answer to the question: ' Q. (Read by Mr. O’Reilly from minutes of former trial.) You expect to be taken care of for what you have testified to 1 A. Yes.’” Again, error is claimed in the refusal of the court to charge that a conviction could not be' had upon the evidence of two certain witnesses named alone. This the court declined to charge except as charged in the original charge. But the court so charged in fact in response to the next request. In . that original charge' the court had told the jury that they must consider all of the evidence in reaching their conclusion. We have carefully examined the record as to other objections made by the defendant, and other errors claimed to have been committed by the trial judge during the trial, and we find'no questions raised which we deem necessary to discuss, and no rulings which would furnish just cause for a reversal of this judgment. The judgment and order should, therefore, be affirmed.

All concurred.

Judgment of conviction and order affirmed.  