
    The People of the State of New York, Respondent, v. Hugh O’Neill, Appellant.
    Upon the trial of an indictment for arson, it appeared that defendant, who had been engaged in carrying on a manufacturing business, formed, with other persons, a corporation, of which he became president By an agreement with his associates the stock, machinery and fixtures were sold to the company. A committee of the directors came to the defendant’s place of business for the purpose of making an inventory, but desisted upon being informed by defendant that he had an inventory just taken. The contract of sale, however, provided that the inventory should be subjected to a corrected count, weight and measure on delivery of the property. Defendant received notes of the corporation for a portion of the purchase-money, which he discounted. The property at the time of sale was insured, and additional insurance was then procured. Before the delivery of the stock had been completed the fire in question broke out in the building, which the circumstances showed to be of incendiary origin. Defendant, as president oí the corporation, together with its treasurer, made the proofs of loss. The amount claimed was §20,000. It appeared that, between the time of the sale and the fire, much of the stock had been shipped away by defendant. Defendant, as a witness in his own behalf, admitted that tbe claim presented was larger than the actual loss. The proofs of loss were offered and received in evidence on the part of the prosecution, under objection and exception. Held, no error; that they were competent as part of the res gestee-, and that the fact that they were executed by defendant jointly with another did not affect the question of their admissibility.
    The prosecution was also allowed to prove that while the adjustment of the fire losses was in progress, defendant had a bottle of liquor with him and “ drank every once in a while.” Held, no error.
    (Argued January 18, 1889;
    decided January 29, 1889.)
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made at the July Term, 1888, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Cortland, entered upon a verdict convicting defendant of the crime of arson in the third degree. {Mem. of decision below, 49 Hun, 422.)
    The facts, so far as material, are stated in the opinion.
    
      
      Louis Marshall for appellant.
    The acts or conduct of one on trial for a crime, to be competent must be such as, according to common experience, indicate a guilty mind; they must be unnatural and abnormal; not such acts as are usnally performed or conduct ordinarily pursued by ah classes of people; but must be the expression of an emotion or a state of mind which is generally indicative of a consciousness of guilt. (Greenfield v. People, 85 N. Y. 75; Levy v. People, 80 id. 327: Johnson v. Carnley, 10 id. 570; Hutchins v. Hutchins, 98 id. 56; O'Hagan v. Dillon, 76 id. 172; Anderson v. R., W.& O. R. R. Co., 54 id. 341,342; Allis v. Leonard, 58 id. 288.)
    
      Horace L. Bronson for respondent.
    It was competent for the People to show that the defendant had procured insurance upon the stock to an amount far beyond its value, and that he endeavored to obtain such insurance after the fire, and that he did actually obtain a portion of such insurance for the purpose of showing motive. Also to show by the proofs of loss, verified by defendant, his contradictory statements with reference to the fire and as to the cause thereof. (People v. Conroy, 2 N. Y. Cr. R. 582; Freund v. People, 5 Parker’s Cr. E. 198.) The people were properly allowed to show the statements made by defendant after the fire to the adjusters, as to the amount of property which defendant claimed to have been destroyed by the fire, also that about the time of the fire defendant was drinking a good deal. (Levy v. People, 80 N Y 335; People v. Conroy, 2 N. Y. Cr. R. 582; Gordon v. People, 3 N. Y. 501; Lindsay v. People, 63 id. 154; Greenfield v. People, 85 id. 85.) The evidence as to defendant’s taking a drink or drinks of liquor, was harmless, and if inadmissible would not justify a reversal of the judgment. (Stephens v. People, 4 Parker’s Cr. R. 396; Shorts v. People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625, 627; Page v. Ellsworth, 44 id. 636.)
   Gray, J.

The defendant was convicted of the crime of arson in the third degree, at the Cortland Oyer and Terminer, and has appealed here from, the affirmance by the General Term of the judgment of conviction. The property burned consisted of a building, used as a carnage shop or factory, in the village of Cortland, in this State.

The appellant’s counsel has insisted upon the existence of errors in this record; some of which we shall consider, although they were discussed at the General Term. They relate to the reception of evidence and to the charge to the jury. He argues that it was error to admit in evidence certain proofs of loss, which were made for the insurance companies after the fire. They were executed by the defendant, as president of the O’Neill Wagon Company (Limited), conjointly with one Conger, as its treasurer, and were prepared after an adjustment and compromise had been made of the losses between defendant, on the one side, and the representatives of the insurance companies on the other.

In order to understand the situation of matters, when these proofs of loss were made, and the relevancy of the proofs, a very brief review of the case made will suffice. The defendant had been engaged, in partnership with other parties, in the manufacturing and sale of wagons at Cortland, under the style of the O’Neill Wagon Company. In October, 1883, as the result of disputes between him and his associates, it was agreed by the latter to sell to him all of their interest in the business, subject to the payment of the debts owing by the firm, and he at once set about forming some new connections, in some other locality. In December, 1883, he formed, with various persons, in Springville, in this State, a company called the O’Neill Wagon Company (Limited),-of which he became the president. By an agreement with his new associates the stock, machinery and fixtures, etc., on hand were sold to the company at the sum of upwards of $36,000. A committee of three of the Springville directors had come over to Cortland for the purpose of taking an inventory of the property; but desisted, after commencing the task, on being informed by defendant that he had an inventory in his possession which had just been taken, and accepted that as the basis of a sale and purchase; "but embodied in the contract of sale the provision that that inventory should be subjected to a corrected count, weight and measure on the arrival and delivery of the property at Springville. By this contract payment was to be made as follows: $20,000 in shares of the capital stock subscribed and taken by him at par value, and the balance in two notes of the company in equal amounts, payable in six and twelve months, respectively.

It also provided that the title to the property should be deemed to pass as of December 18, 1883, as also should the right to the insurance upon it. Within a few days of the making of the contract, defendant obtained and discounted the notes intended as part of the purchase-money for the property sold, and placed the proceeds to the credit of the O’bTeill Wagon Company, of the property of which firm he had become the sole owner by the previous sale to him by his partners. This property, at the time of the sale to the new company, was insured for $19,000 and additional insurance was then effected, for three months, to the amount of $15,000. Before the delivery of the stock had been completed, and on the evening of February 14, 1884, the fire in question occurred. It broke out at about eleven o’clock, in three different places in the building, and that it was the work of an incendiary is substantially, if not in fact, conceded. The loss occasioned thereby was claimed by the defendant to amount to $20,000. This the representatives of the insurance companies refused to'believe or to concede, and the claim was finally compromised by defendant at $10,000. Then the proofs of loss in question were prepared and executed by defendant, as president, and one Conger, as treasurer of the insured company. The introduction in evidence by the People of these proofs of loss was with reference to their bearing upon the question of proof of defendant’s guilt, and we are unable to see how any error was committed by the trial court.

The proof relied upon by the prosecution as establishing -guilt was mainly circumstantial m its nature; except that evidence was given by witnesses as to statements made by defendant in conversation, which' might be deemed equivalent to admissions or confessions of guilt. The facts elicited by the testimony of witnesses related to the conduct of the defendant before, during and after the fire, and statements made by him in conversation with employes, his former partners and the insurance adjusters. Between the time of the sale of stock to the new company, in December, and the time of the fire, it was testified that much of it was shipped away by defendant. Witness O’Connor, a bookkeeper, testified that on the day .of the fire, he went to his supper at six o’clock, leaving the defendant alone in the building, and before he left defendant obtained from him a list of wagon materials and of customers’ names and addresses and of the number of wagons they had got and of the prices paid for them.

During the progress of the fire the defendant stood apart, apparently indifferent, in so far as he made no effort to save any articles, while O’Connor was active and- exposed himself to peril in his endeavor to save the books and property. O’Connor testifies that after the fire the defendant directed him to bum the invoices, and said he was sorry that he had saved the books and that the “ whole damned’ place didn’t burn down; ” that when witness called his attention to the fact that some books were gone, defendant said that was “ all right, he knew where they were, but he did not want them to fall into the hands of the insurance men; ” that defendant told him not to mention that the books had been saved; that when informed that the insurance men had been in the building lately, he said, “ why did you not tell me so at the time; if you had I could have made different arrangements, but as it is I must do the best I can; ” that he told the witness he had “ made up an inventory to settle with the insurance company ; ” that he had “ made up an inventory for the purpose; ” that it “showed a loss of $20,000; * * * if he could get $20,000 of the insurance men he would let the Spring-ville men go to hell, he would not go to Springville.”

Witness Lansing, an employe, testified that defendant told him to tell the insurance adjusters that the second floor was filled up with wagon material. Witness Baker, also an employe, testified as to the amount of stock on the premises, and that there were no oils, or paint, or varnish in the showroom; that “after the fire O’Neill said if the insurance, men came around and asked him how much stock there was in the building, to tell them the building was full, we didn’t know how much there was in there.” When the adjusters examined the premises, they found no indication of a loss of any large stock of materials. They insisted that wagon materials could not be so totally destroyed as to leave no evidence, in parts more or less indestructible. One of them, Bice, testifies that while with the defendant and others in the premises they refused to believe defendant’s statements as to the quantity of stock and materials, and he asked him “ where the iron corners for the bodies were,” remarking, if he had seven hundred and seventy-seven bodies here, he would have four times as many irons. He didn’t think defendant “made much of a reply. He turned red in the face.” Defendant paid a visit to the premises with his former partners, Duffy and Fitzgerald, and Duffy testified that defendant then said to him, “ you see Mr. Duffy, here is no evidence of anything having been burned here; * * * you see the floor has not burned, nor scorched, and if the damned thing had only gone down, as I intended it should, it would have been all right.” Fitzgerald corroborated Duffy in this testimony, and further testified that defendant said, in reference to a query as to how much of a loss he had, “from a thousand to fifteen hundred dollars would cover it all.”

In giving his own evidence, the defendant admits that there was a mistake in the amount claimed in the inventory of December,"on the basis of which the sale was made to the new company, and that the claim he presented for property destroyed was larger than the actual loss. I have collated these items in the proofs which went to make up the case which was submitted to the jury. , A fuller review or analysis is not called for to the end in view, which is, to establish the materiality of evidence bearing upon the principal fact, or the question of the defendant’s motive or want of motive. Where the proof relied upon is circumstantial, the law requires it to be such as to satisfy the jurors, beyond any reasonable doubt, of the guilt of the defendant; and, under such a rule, it is of the essence of justice that no facts or circumstances shall be excluded from the jury, which have relation to, or bear upon the principal fact; not facts which owe their origin to subsequent events, but such as were of necessity connected with, or would have had no existence except for the principal fact. Here the principal fact was the burning of the building, and the defendant was charged by the People with having caused it. The proofs of loss, which he executed subsequently, were for the purpose of collecting the insurance moneys upon property which he stated was destroyed. They were required under the policies; they gave the amount of other insurance on the property, the amount of the compromise, and stated the cause of the fire, in the affiant’s opinion, to be incendiarism. They, thus, were directly connected with the fire, and the defendant, being concerned with, and interested in their making, they formed part of the res gestae. When we speak of the res gestae, we mean those surrounding circumstances, which relate to and illustrate the principal fact, and are its necessary or usual incidents. The admissibility in evidence of these proofs of loss rested upon the fact of their being made necessary by the fire, and of being the formulation in a statement under oath by defendant, as an interested party, of facts concerning the fire, its consequences and probable cause. The principle of their admissibility is in their necessary connection with the principal fact. These proofs of loss, though subscribed and sworn to by defendant, in his official capacity as president, none the less were the statements of the individual. Their execution jointly with Conger, the treasurer, in no wise affected the question of their admissibility as links in the chain, which the People were forging to hold the prisoner. Though jointly subscribed, each proof of loss was, in reality, but the separate statement of each affiant, made in that form.

These proofs of loss, being in the case, would have some bearing upon the question of the existence or absence of a motive in the defendant for the commission of the crime charged. The theory of the People’s case against the prisoner was that a motive did exist, which led him to commit this act, and to the end of sustaining that theory and exhibiting the motive, they arrayed various facts and circumstances. He had induced the O’Neill Wagon Company (Limited) to buy of him, at a price of upwards of $36,000, a stock of goods, etc., on his valuation of $40,000 in an inventory prepared by him, and had realized upwards of $16,000 of the agreed price in cash, long before the delivery of the goods, and there remained his liability to be covered on the stock subscription of $20,000. The contract-price was subject to correction at Springville, as the goods were delivered there, and it would soon be known that the amount of stock, etc., which he had sold and agreed to deliver, fell far short of his representations. The People did furnish evidence through their witnesses, and it appeared, through the prisoner’s own evidence, that no such amount of stock'was on hand as he had contracted, in December, 1883, to sell and deliver.

Another question raised by the appellant is as to the correctness of the ruling of the trial judge, in admitting evidence of the defendant’s drinking liquor at a time subsequent to the fire.

The witness O’Oonnor testified to various interviews and conversations with defendant while the adjustment of the fire losses was in progress, some of which I have already given, wherein the defendant exhibited great irritation and temper, because the books and the whole building had not been destroyed, and declared his purpose of letting the Springville men go to a hotter and a more undesirable place, if he could get $20,000 of the insurance men. Witness was then asked to state “ whether at that time and for several days previous the defendant was drinking a good deal of liquor.” The objection to the question was overruled and defendant’s counsel excepted. Witness answered/1 He was drinking some; he had a bottle there Avith him; Conger carried a bottle and every once in a while Mr. O’Neill would take a slug.” We do not think the court committed an error in the reception of this evidence. Its admission was, under the circumstances, somewhat a matter of discretion. It was a remote circumstance, but it bore upon the question of guilt, in that it tended to show what was his conduct and demeanor when engaged in matters connected with the fire, and in the course and disposition of which he was principally interested and a prominent actor. The calm or disturbed demeanor, the natural or the unusual conduct of the individual are witnesses to the workings of the mind, and, taken in connection with all other circumstances tending to connect him with an event, aid the jury in forming the inference of innocence or of guilt.

In Greenfield v. People (85 N. Y. 85), the demeanor of a prisoner, soon after the commission of a crime, was considered as a proper subject for consideration in determining •the question of guilt. The conduct of a party may be as much evidence as his statements. To admit evidence of his drinking liquor was not necessary, it furnished simply an additional circumstance, which would add to the body of proof, from which the jury might deduce the inference of innocence or guilt. That the nature of the circumstance was such as to create a prejudice in the jurors* minds, which might have unjustly influenced their verdict, we can no more assume, than we can that the uncalled for profanity in his conversation had shocked them and unduly biased their minds.

As to the charge of the trial judge, I think, in view of its careful analysis in the General Term opinion and of their expressions, little need be said here. If the correctness of the verdict were to depend upon the diction, style or perspicuity of a charge, then I should doubt whether this verdict ought to be allowed to stand; but though deficient in these respects, it yet was intelligible and was a summing up, though in a discursive and inartistic way, of the proofs in the case. There are no such errors in it as demand a reversal of this judgment. The questions of fact were left with the jury by the trial judge, who instructed ' them that they were the exclusive judges as to all such questions. This instruction was repeatedly given, in different words, throughout the charge, whenever the trial judge commented upon the facts, and also in his rulings upon the requests to charge.

Upon the whole ease, we think the verdict was right, and that it is supported by the evidence. Taking the whole body of proofs surrounding the principal fact, they point to the guilt of the defendant, and among those proofs is no item, the admission of which constituted a legal error, or which was not fairly within that strict line of investigation, which the policy of the law favors, as expedient for the discovery of the truth and for the aid of the jury in arriving at a right verdict.

The judgment and order appealed from should be affirmed.

All concur except Huger, Oh. J., not voting.

Judgment affirmed.  