
    Supreme Court—Appellate Division—Third Department.
    June, 1901.
    THE PEOPLE v. JAMES W. BUTLER
    (62 App. Div. 508; 105 St. Rep. 129.)
    1. Arson—Penal Code, 488, sued. i.
    Defendant was indicted for arson in the third degree. The charge was that he caused his own barn to be burned, which was insured at the time, with intent to prejudice the insurer. On the trial, the People proved that the barn burned was the property of defendant’s wife with no proof that it was insured, and rested. Subsequently one of defendant’s witnesses testified under defendant’s objection that the barn was insured in the name of the wife. But the judge told the jury that the single question for them to determine was whether defendant caused the barn to be set on fire which subsequently did burn. Held that conviction could not be had, that the facts upon which the People rely to prove the crime must be alleged in the indictment and the proof must be as charged.
    2. Same—Evidence of accomplice.
    Where the only witness to the hiring of persons to set fire to the barn is one of the accomplices, his evidence could not be corroborated by defendant’s declarations showing a desire on his part that the bam would burn so he could get the insurance, and that defendant’s brother had a talk with the incendiaries.
    
      3. Samí:—Evidence.
    The judge refused to charge “ that evidence showing the. defendant was in the society of the accomplices is not sufficient, and such relations are consistent with innocence.” Held error.
    4. Same.
    Where two witnesses had distinctly testified that the accomplices had told them that the insurance company had told him that if he would swear against defendant they would do all that they could, and all that money could to help him out of the scrape the jury should have been allowed to consider it all.
    5; Same.
    The People were allowed to show under defendant’s objections that after the barn was burned defendant refused to pay him the twenty-five dollars promised unless he burned the house, and in pursuance thereof he and Cooper did burn the house. The court struck out the evidence as to what he did in reference to firing the house, but left in the statement as to refusing to pay. Held error.
    6. Same.
    Defendant was required to answer as to whether he ever heard that his accomplice Cooper had made a confession, and whether he had ever seen such confession. Held error.
    Appeal by the defendant, James W. Butler, from a judgment of the county court of Chenango county in favor of the plaintiff, rendered on the 1st day of January, 1900, convicting him of the crime of arson in the third degree.
    Hubert C. Stratton, for the appellant.
    Wordsworth B. Matterson, District Attorney, for the respondent.
   Per Curiam.

The defendant was indicted.for arson in the third degree. The charge was that he caused his own barn to be burned, which was insured at the time, with intent to prejudice the insurer. That was charging the commission of the. crime as defined in the 1st subdivision of section 488 of the Penal Code.

Arson in the third degree, under the 2d subdivision of that section, might be committed by burning a barn or other structure not within the curtilage, nor adjoining an inhabited building, and in which there was at the time no human being.

The charge, however,' in this indictment is confined to the crime as defined in the ist subdivision; and evidently it was incumbent upon the People to convict the defendant of having been guilty of the acts which are therein specified. That is, not only must they show that the defendant burned the barn, but that it was one which was insured at the time, and that he did it with intent to prejudice the insurance company.

Upon the trial, when the People rested, they had proven that the barn burned was not the defendant’s, but was his wife’s. There was also no proof whatever that it was insured. The defendant thereupon moved that he be discharged on the ground that the proof varied from the offense as charged. This motion was denied.

At that stage of the case it appeared that, if the defendant burned anything, he burned his wife’s barn. That was all. Clearly that was arson in the third degree, within the provisions of the 2d division of that section; but it fell far short of the arson charged in the indictment. Subsequently, however, and while the defendant was introducing his evidence, the People were allowed to show by one of his witnesses and under his objection, that the barn which was burned was insured in the name of his wife and that the insurance was subsequently paid to her.

There was also evidence in the case tending to show that the defendant stated to those whom he hired to burn the barn that he wanted to get the insurance thereon.

The trial judge, however, told the jury that if the defendant hired Cooper and Whitmore to burn the barn, as Whitmore stated he did, then he was guilty of the crime charged in the indictment; that the single question for them to determine was. whether the defendant induced Cooper and Whitmore to set fire to the barn, which subsequently did burn on the same evening. “ Everything else that has been brought into the case is of no consequence whatever unless it has some bearing upon that single question.”

Thus the jury were instructed that if the evidence convinced them that the defendant procured his" wife’s barn to be burned, they must find him guilty under the indictment; and the element of insurance and the intent to prejudice the insurer, which are required by the ist subdivision and which are charged in the indictment, were entirely taken from their consideration. It seems clear that the theory of the People and the holding of the court upon this trial was that when it appeared that the barn was not the defendant’s, they might convict this defendant under the 2d subdivision of section 488 by proving that he hired Cooper and Whitmore to burn his wife’s barn, and so the charges concerning his intent to defraud the insurance company were abandoned.

We are of the opinion that such a conviction should not have been had. Every fact charged in the indictment seems to have been abandoned. The jury have not found that he burned his own barn. They have not found that the barn he did burn was insured, nor that he burned any barn with intent to prejudice any insurer because those questions were taken from them by the charge of the court. They have found him guilty, however, because he burned another person’s barn, an act with which the indictment did not pretend to charge him. The facts upon which the People rely to prove the crime must be alleged in the indictment, and the proof must be as charged. It was error to charge the facts specified in the ist subdivision and prove those other and different facts required in the 2d division. People v. Dumar, 106 N. Y. 502; People v. Flaherty, 162 id. 539, 540.

The barn burned on the night of January 20, 1897. It is claimed that James Cooper and Henry Earl Whitmore set it on fire, and that the defendant hired them to do so. The said Whitmore testified to that effect, and he is the only witness who testified to the hiring. There is no claim that the defendant had any part in the burning, save that he procured it to be done by these two persons. Evidently Whitmore was an accomplice with Cooper and the defendant in the crime to which he testified, and a conviction of the defendant could not be sustained upon his uncorroborated testimony alone. Code Crim. Proc. § 399. Inasmuch as the defendant is connected with the burning only through his procuring or inducing them to burn it, it was necessary for the People to corroborate Whit-more’s testimony upon that very question: Did he induce Cooper and Whitmore to set fire to the barn? Evidence corroborating Whitmore’s statement that they burned the barn does not reach that point. Much of the evidence which the People claim to be corroborative on this question, is evidence of the defendant’s declarations showing a desire on his part that the barn and house would burn so he could get the insurance. If it is a legitimate conclusion that because a man wishes his buildings would burn, he would be likely to hire some one to burn them, such evidence may be deemed corroborative in its character; but it is of a kind'that should be received with great caution, and certainly, alone by itself, should be given but little weight. The other evidence tending to corroborate Whit-more upon this question is that of his brother Pearl, who says that on the afternoon of the twentieth the defendant was up to the house where he, Earl Whitmore and Cooper, were living, and had a talk with Earl and Cooper. He does not pretend to know what they were talking about. But he says that, as the defendant left, he asked him, the witness, if he would go with the boys and help them do a job for him; witness inquired what it was, and the defendant replied, “ You know all about it.” Now this is quite indefinite as evidence that the job he referred to was to burn the barn. Witness does not assume to say that it was. He says he does not know to what the defendant referred. The defendant testifies that he had been there to get Earl Whitmore to go with his heavy team and draw out some large logs for him; and it seems that soon afterwards this very witness did go and assist in that job. All this, taken together, is at most very slight corroboration that the defendant was there to hire the others to burn the barn. And, even if we concede that the evidence relied upon by the People is sufficient to sustain the conclusion of a jury, it constitutes - a very close case against the defendant, which should not be prejudiced by any immaterial or irrelevant evidence, or error in the charge, calculated to influence the jury against him.

As bearing upon this question of corroboration, it appears that the court was asked to charge “ that evidence showing the defendant was in the society of the accomplices is not sufficient and such relations are as consistent with innocence.” The judge replied: “ I do not think that is applicable to this case.” It seems to us that such request, in so close a case as this, should have been charged. People v. Courtney, 28 Hun, 589.

The court was further asked to charge “ that any money offered or promises made by the insurance company, or anybody else, to Whitmore to induce him to testify, is material as bearing on the credibility of the witness.” The judge replied : “ There is no evidence in the case that promises were made to Whitmore of any kind. You should take that fact into consideration in determining the amount of credibility to give his testimony.” Two witnesses had distinctly testified that Whitmore said to them that there was no danger of his going over the road; that the insurance company told him that if he would swear against Butler they would do all they could do, and all that money could do,. to help him out of this scrape. 'This testimony was given without objection and had become evidence in the case. With that evidence in the case, which the learned trial judge had probably forgotten, we are of the opinion that the jury should have been allowed to consider it all, and that the defendant’s request should have been granted.

During the trial the People were allowed to show by Whit-more, under the defendant’s objection and exception, that after the barn was burned, the defendant refused to pay him the twenty-five dollars promised for burning the barn unless he would also- burn the house, and that, in pursuance thereof, he and Cooper did burn the house. The court afterwards struck out the evidence of Whitmore “ as to what he did in reference to firing the house,” but left in the statement that the defendant refused to pay him until after he had burned it. It was also proven that the house was actually burned. This evidence seems to be material only as tending to prove a separate and distinct crime on the defendant’s part, committed after the one for which he was being tried. It was irrelevant and improper, and strongly calculated to prejudice the jury against him, and it was error to receive it.

The People were also allowed to show upon the trial that the alleged accomplice, Cooper, had absconded.

On his cross-examination the defendant was also required to answer whether he had ever heard that Cooper had made a confession, and he replied that he had heard so; a paper was then held up before him, and he was asked if he had ever seen that confession, and he was required to answer, under objection, whether he had or not.

It is very clear that the acts and declarations of Cooper, so referred to, were not admissible against the defendant, and it was an error plainly calculated to prejudice the defendant to permit them to be given in evidence. People v. Sharp, 107 N. Y. 464; People v. McQuade, 110 id. 307.

Without considering the further exceptions to which the appellant’s counsel calls our attention, we conclude, for the reasons above given, that the judgment should be reversed and a new trial granted.

All concurred.

Judgment of conviction reversed and new trial ordered, and case remitted to the county court for such purpose.  