
    Supreme Court—Appellate Division—Fourth Department.
    January, 1906.
    THE PEOPLE v. BURT C. BROWN.
    (110 App. Div. 490.)
    1. Trial—Arson—Evidence.
    In a trial for arson it is error to admit evidence of an admission by the defendant to an insurance adjuster that he had had fires at three other places within two years and it is also error to exclude evidence of the defendant’s brother that one of said fires was on the brother’s property and not on that of the defendant.
    
      2. Same—Admission by Defendant as to Former Fires.
    Evidence of such admissions by defendant is not competent to show intent or motive, and the fact that such evidence was brought out in a cross-examination of the defendant in a former trial for arson against his employee does not make it admissible as affecting his credibility, when he is not a witness on his own trial.
    3. Same—Evidence by Fire Department Chief of Watching Defend-
    ants Premises.
    It is error to admit evidence of the chief of a fire department that for a week after a prior fire which was extinguished he had one of his men watch the premises of the defendant at night, for it was in effect showing the action of the chief as indicating his opinion that the circumstances of the fire were suspicious and the premises needed watching to prevent another fire, and it is error to admit evidence of such chief that in his opinion the opening of certain doors and windows would create a draft.
    
      4. Same.
    It is error to admit evidence of a declaration of defendant’s witness made ten days after the fire that oil was put on the floor of the workshop “for a purpose.”
    Spring, J., dissented.
    Appeal by the defendant, Burt 0. Brown, from a judgment ■of the County Court of Herkimer county, rendered on the 27th day of March, 1905, upon the verdict of a jury convicting the said defendant of the crime of arson in the third degree.
    H. A. De Coster and A. M. Mills, for the appellant.
    George W. Ward, district attorney, for the respondent.
   Williams, J.:

The judgment should be reversed, the verdict set aside, and a new trial granted.

The indictment was filed December 7, 1903, and charged the crime as having been committed November 19, 1903, at Little Falls, N. T. The building burned was owned by one Convne, and occupied by the defendant as a furniture store. It contained a stock of goods owned by defendant. The building was insured for $9,500, and the goods for $13,000. The intent alleged was to destroy the property and to secure the insurance money.

The trial commenced March 17, 1905, and continued until March 24, 1905, when the verdict was rendered. A motion for a new trial was made upon the minutes of the court, upon the ground that the verdict was contrary to the evidence and the law, and upon exceptions to the admission and rejection of evidence and to the charge. This motion was denied.

While the record may not show the fact, still it was stated upon the argument that the defendant Jones had been tried and convicted, and was serving his term in State prison, the case having been affirmed by this court (People v. Jones, 100 App. Div. 511) and by the Court of Appeals (181 N. Y. 516), and that two prior trials of this defendant had been had, resulting in disagreement of the juries. The court, in the course of the charge, referred to the former trials that had taken place.

We have examined and considered the evidence contained in this record, and conclude that the verdict was not, within well-established rules, so contrary to or against the weight of the evidence as to require the reversal of the judgment for that reason. The questions of fact were close1, however, as appear not only from an examination of the record but from the fact that on two former trials the juries were unable to agree upon a verdict of guilty. This being so, we are called upon to consider carefully the exceptions taken during the trial with a view to determining whether the rights of the defendant were fully protected, or whether his conviction was, or may have been, brought about by reason of error committed by the court in the conduct of the trial. Our attention is called to various alleged errors, which we will consider.

1. For some years prior to 1901 the defendant resided and carried on business at Fulton, Oswego county, and the defendant Jones was in his employ there. In 1901 the defendant removed to Syracuse and carried on business there for about a year, and the defendant Jones was in his employ there also. - He then removed to Little Falls and went into business there, and so continued until the fire in question took place, and the defendant Jones was in his employ at that place. There was a fire in defendant’s store at Little Falls November 10, 1903, only a few days before the fire in question, but it was extinguished before a great deal of damage was done. An insurance adjuster came to Little Falls November 17, 1903, and had a talk with defendant, and early in the trial this adjuster was called as a witness for the People, and gave the following evidence under defendant’s objection and exception: “I asked Mr. Brown if he was the man who had a fire at Syracuse. He replied yes. I asked him if he was the man who had a fire at Baldwinsville. ... He replied yes, but that his brother occupied that building. I asked him if he was the man who had the fire at Fulton, and he replied yes.” After this evidence had been given defendant moved to strike it out, and the motion was denied, with exception. Other evidence was given by the witness relating to the loss of November 10, 1903, but was in no way connected with the evidence so objected to. Later in the trial the defendant called his brother and offered to show by him that when the fire at Baldwinsville took place he occupied the building. This was objected to by the district attorney, and the objection sustained with exception. It can hardly be doubted that the reception of this evidence and the refusal to strike it out was erroneous, especially in view of the refusal to allow the defendant to make an explanation by his brother, favorable to himself, as to the Baldwinsville fire. The People were permitted by this evidence to show that the defendant during the two years prior to the time of the fire in question had had fires at Fulton, at Baldwinsville and at Syracuse,™ addition to the fire at Little Falls. These fires were shown by the most satisfactory evidence possible, the admissions of the defendant himself, which he could not controvert unless he went upon the stand at a witness himself, and he was not permitted to prove by his brother that one of these fires was not his. It was not offered to prove by the brother that the Baldwinsville fire was not incendiary, but that it was not defendant’s fire at all, it was his brother’s, and this even was refused. There is no theory upon which this evidence was admissible, unless it was upon the question of motive or intent to commit the crime in question. We are unable to see how it was material for any such purpose. The transaction between these parties, including the conversation with reference to his loss in the fire of November 10, 1903, may have been competent in the case, it was not objected to any way, but the evidence which was objected to was not competent, merely because the transaction generally and the other conversation were. It did not creep in incidentally, as is now claimed. Its reception was persistently objected to, and a struggle was made to have it stricken out after it had been admitted. The district attorney insisted upon its reception and retention, and the court ruled with him. The evidence had no proper bearing upon the question of motive or intent. It was very dangerous evidence in the case. It was not harmless, as now claimed. It must have had a serious effect upon the minds of the jury, and may well have induced a verdict of guilty, which would not otherwise have resulted. In a close case like this, jurors were liable to reason that the defendant had recently had so many fires in his buildings that he must have been responsible for them, and very likely was liable for this fire in question. The jury would necessarily regard this evidence as important because of the struggle to get it in the case and to keep it out. ISTo instruction was given by the court limiting the effect to be given to it. On the contrary, in the charge they were instructed that they should carefully consider all the evidence in the case and base their verdict on such evidence. What use the district attorney made of this evidence in his address to the jury does not appear. He had a right to call the attention of the jury to the fact that the defendant had had all these former fires in his buildings, as circumstances in the case, because the- evidence was admitted and retained without any limitation as to its effect or any instruction to the jury as to the force they should give to it. We cannot say that the jury did not conclude that the defendant was guilty of causing this fire by reason, among other considerations, of the fact that he had had so many fires in his buildings before. It is said that this evidence was given in the Jones case, and yet there was an affirmance in that case by this court and by the Court of Appeals. In that case the evidence came into the case by way of the cross-examination of this defendant, who was a witness there. In this case the defendant was not a witness, and this evidence was not given to affect his credibility as a witness, but as direct evidence of defendant’s guilt.

2. The People were allowed to show by the chief of the fire department that from the time of the fire, ¡November nineteenth, until ¡November twenty-fifth, he had one of his men watching the premises at night. This was objected to and exception taken. It was incompetent evidence against the defendant. It was in effect giving the action of the chief as indicating his opinion that the circumstances of the fire were suspicious and the premises needed watching to prevent a further fire. This evidence was objected to and exception taken. The People were allowed also to give the opinion of the chief as to the effect of certain conditions in the building, produced by opening doors and windows, that it would create a nice kind of a draft. It was not a proper subject for expert evidence, and the chief was no more of an expert than the jurors themselves. The jurors were in effect allowed to rely upon the opinion of the chief instead of using their own judgment, based upon the conditions proven to exist in the building. This evidence was given under objection and exception.

3. The People were allowed to prove the declarations made by defendant’s witness Moran, ten days after the fire of November 10, 1903, that the oil on the floor of the workshop of defendant was put there “ for a purpose.” It was given under the claim that it was proper as affecting Moran’s credibility. It did not, however, tend to contradict what he had sworn to on the trial, that he had used a brush and oil in sweeping the floor. This remark was prejudicial to the defendant, and was improperly received as evidence under objection and exception.

4. The admission of evidence with reference to the demand upon the defendant to allow an examination of his goods and his refusal, and the exclusion of evidence by defendant’s wife as to directions given by her to Jones as to where he should send the telegram to defendant in "Rochester, were errors of minor consequence, under objection and exception, but should be considered with the other more serious ones as calling for a reversal of the judgment.

Other rulings are suggested by counsel as erroneous, but they call for no particular consideration in this opinion.

The rule is well settled that errors committed in a criminal trial should not be disregarded, and the judgment affirmed on appeal, unless it can be said such errors were harmless, and could, by no possibility, have prejudiced the defendant. (Stokes v. People, 53 N. Y. 164; People v. Koerner, 154 id. 355; 12 N. Y. Crim. 503; People v. Wennerholm, 166 N. Y. 567; 15 N. Y. Crim. 398.)

Tinder this rule we should reverse this judgment and grant a new trial for the errors hereinbefore referred to.

All concurred, Hiscock, J., on first two grounds only, except Spring, J., who dissented in an opinion.

Spring, J. (dissenting) :

The defendant was indicted for arson with one George Jones and they elected to have separate trials, and the conviction of Jones was affirmed by this court (100 App. Div. 511) and also by the Court of Appeals (181 N. Y. 516). The specific charge was the attempted burning of the stock of goods owned by the defendant in Little Falls, and the motive to obtain the insurance money, for the evidence shows quite clearly that the property was considerably over-insured. If the crime was committed, the fire was set by Jones, who was in the employ of the defendant, for the latter was in Eochester at the time.

An examination of the record satisfies me that there ivas abundant evidence given upon the trial to sustain the verdict of the jury. The trial was protracted, was bitterly contested and inevitably some improper evidence was received or some proper evidence excluded. It is not a case, however, calling for a microscopic hypercritical investigation of every exception contained in the record.

The fire set out in the indictment occurred November 19, 1903. There had been a previous fire on the tenth of the same month of these same goods, which had been stopped, and a claim for damages had been presented to1 the insurance companies and an investigation was set on foot by representatives of these companies for the purpose of ascertaining whether the fire was a suspicious one, and if so> the policies were to be canceled. As a result of this investigation the policies were canceled on the seventeenth, but such cancellation could not become effective within five days. The theory of the prosecution was .that the defendant realized the necessity of causing the destruction of his property by fire before the expiration of the five days, and hence, the fire on the nineteenth, while the policies were still in force.

On the seventeenth and during the explorations of the adjusters of these insurance companies, they had a conversation. with the defendant, which is narrated by one of them, the People’s witness Tyler. During this conversation he asked the defendant “ if he was the man who had a fire at Syracuse-. He replied, yes,” and the same inquiries as to fires at Baldwinsville and Fulton were propounded and elicited affirmative answers, and the competency of this evidence was properly raised by the defendant’s counsel. As already suggested, these inquiries were made while the agents of the insurance companies were engaged in the sifting process as to the fire of November tenth in order that they might ascertain whether they had just cause to- terminate the existing insurance. As a part of this probing they inquired of the defendant as to former fires of his goods. These inquiries did not necessarily imply an attack upon his integrity, hut the frequency of these- fires, even though unintentionally caused, might be an adequate justification for annulling the insurance. During the- subsequent part of the trial there was no intimation, so far as the record shows, that these fires were incendiary. No allusion to the subject was made- by the trial judge in his charge-, and he was not requested to advise the jury that the evidence did not tend to implicate the defendant as to these fires. Nor does the record show that during the summing up the- subject of these previous fires was alluded to in any way whatever. Had the charge been made by the district attorney that they were of incendiary origin the astute counsel for the defendant would have been alert to- correct the impression. On the contrary, as we will observe later, all parties disclaimed that the evidence had any such effect or tendency.

This same class of evidence comprised a part of the alleged objectionable evidence on the trial and conviction of Jones, and was urged strenuously as a reason for the reversal of the judgment of conviction. On that trial Girvan, also an agent of one of the insurance companies, was allowed to testify that Brown, the present defendant, said that a fire had occurred at Fulton while he was keeping a store at that place. Again, the defendant testified in behalf of Jones on that trial, and was cross-examined as to these previous fires at considerable length. Jones was in the .employ of Brown when the fire at Fulton occurred, and if the evidence is vicious, as is contended, it was. equally so against Jones. In any event 'the question of the admissibility and effect of this class of evidence was in the preceding record, was pointedly pressed upon the court by the appellant’s counsel, and while no opinion was written either in this court or in the Court of Appeals, yet we cannot assume that so vital a proposition was utterly overlooked by both appellate courts.

Passing that, however, I think, as. an original proposition, the evidence was admissible. Certainly evidence pertaining to the fire of November tenth was competent. That was not an unrelated crime in the sense in which that term is used. The same goods were involved in the same building, and they were in the custody of the same parties, and there was the same excessive insurance which, it is claimed, induced each fire.

The question of the defendant’s motive was an important element in the case of the prosecution. The fact that the insurance companies had canceled their policies to become operative five days after the notice was served upon the defendant, and the fire actually occurred within that brief space of time, was important. The motive of the defendant to burn his property was thus elucidated. The evidence criticised was elicited while the investigation preceding the cancellation was in progress. The evidence even of the previous fires was a connected part of this scrutiny. It bore upon the question of motive and illustrated the mental" operations of the defendant.

The prosecution was not necessarily confined to the proof of the fact that the policies were canceled. The People were entitled to prove that the companies were justified in annulling them and that the defendant knew the examination was for the purpose of revoking the insurance, and he was directly connected with what occurred. The information, in part, at least, on which the companies determined to cancel was derived from the defendant, and that information the plaintiff was entitled to have before the jury. The disclosure may possibly have tended to inculpate the defendant with some other offense, but that collateral circumstance does not render the evidence inadmissible.

In explanation or illustration of the motives or mental operations- of one on trial under an indictment much latitude has been given to the prosecution. In People v. Harris (136 N. Y. 423; 10 N. Y. Crim. 260) the defendant was on, trial for the murder of his wife and the crime was committed January 31, 1891, The district attorney was permitted to prove, under objection, that in September preceding the defendant had illicit intercourse in a hotel with a young woman, and in a conversation with her he was overheard to suggest to her that she marry some old man of wealth and that the defendant “ could give him a pill and get him out of the way.” The damaging character of this evidence was apparent, but its admissibility was sustained. The court, in commenting upon it, say: “ I consider that this evidence was admissible, because it bore upon the question of motive and tended to repel that strong presumption which would militate in favor of a husband when on trial for the murder of his wife. The rule that evidence in criminal cases should be confined strictly to the question in issue is not infringed upon because the evidence offered, while tending to prove some essential fact in the guilt of the accused, may also prove the commission of another offense. Such evidence is relevant and admissible whenever its presence goes to sustain the charge by showing scienter or motive; for these facts are essential elements of a crime. ... If this conversation, so overheard by the witness, furnished any clue to the existence of motives, we cannot assume nor say that it was meaningless or immaterial. The weight and importance to be attached to it were for the jury to consider in the light of all the circumstances.” (See, also, People v. Scott, 153 N. Y. 40; 12 N. Y. Crim. 374.)

In Stephen’s Digest of the Law of Evidence (Beers’ N. Y. ed., art. 8) the principle is thus stated: “ When a person’s conduct is in issu¡e or is deemed to be relevant to the issue, statements made in his presence and hearing by which his conduct is likely to have been affected, are deemed to be relevant.”

These inquiries revealed to' the defendant that he was suspected of careless managment of his property, or of the graver offense which resulted in the former fires. At the particular juncture of this conversation he may have realized that -the policies were to be canceled and he may then have conceived the purpose to burn his goods before the expiration period was reached.

It is, however, claimed that the defendant should have been permitted to prove that the previous fires were not of incendiary origin. Again it will be useful to turn to the record. Emmett Brown, a brother of the defendant, testified as a witness in his behalf. He lived in Baldwinsville and occupied a store once owned by his brother.' The following occurred: “ Q. Was there a time when the building that you occupied was on fire? By the District Attorney: I object to that as incompetent, irrelevant and immaterial. By the ourt: I don’t know about that. Isn’t that quite an issue to open up ? There isn’t any proof that there was any fire there of an incendiary origin. Mr. Mills: Ho, not a particle. The Court: Then I don’t think we will indulge in it. The objection is sustained. Exception to the defendant.”

The only pertinence to this evidence must have been to show that the fire was not of incendiary origin. The court, realizing there was no proof justifying that suspicion, pointedly so stated to the counsel for the defendant, and the latter, with equal emphasis, acquiesced in this construction of the evidence. There was no dissent by the district attorney, and thus the court and both parties, openly before the jury, were committed to the proposition that there was no suspicion by reason of these former fires and hence the evidence was unnecessary. The most that the defendant could have accomplished by the excluded testimony would have been to disprove in words that the fire was set by him, and in view of the disavowal there was no accusation to rebut.

A defendant even in a criminal case cannot openly assent to a proposition which governs the course of the trial judge in the reception or exclusion of evidence, and then repudiate the course adopted. He may not deceive the judge and then profit by his duplicity.

It is claimed for the evidence in the prevailing opinion that the purpose was to show that the witness, not the defendant, was responsible for the fire. Ho such claim was suggested on the trial. It was of no importance whose fire it was unless suspicion might have been imputed to the defendant concerning it.

The People were permitted to prove that after the fire some one of the fire department was watching the property or building nights, and it is urged that this evidence is incompetent. Before this evidence was objected to, the proof showed without objection that the firemen were in the building the greater part of the time after the fire and the defendant’s counsel had elicited the fact that some more of the fire department was in charge at night.” Proof had been given that excelsior and other material were found packed in between some furniture of the defendant and the wall or partition; that this furniture was blackened by fire, and the excelsior showed the presence of kerosene oil. To repel the effect of this evidence the defendant’s counsel showed on cross-examination that the defendant and Jones were in the building daily and had access to it at all times. The inference might be that they would have removed these evidences of guilt if they had been guilty. To counteract the force of this testimony the -People proved that there was no opportunity to spirit away this material, for a fireman was watching the property all the time. I think the evidence was competent.

The opinion of the chief of the fire department that a draft would be created by the opening of the trap door and the lowering of the window may have been improperly received, but the fact is self-evident and the admission of the opinion must have been harmless.

Harry Moran was a witness for the defendant. He had been in his employ in this building and testified that the kerosene oil which had been found upon the floor after the fire of November tenth had been placed there by him to aid in sweeping or cleaning the floor. He testified that he would let the oil drop from a brush, “ and then we would stamp it on the floor to get the rest out, so that it would not stick the floor up.”

He was asked on cross-examination if he did not tell Sanders and Bellinger on the morning of November 20, 1903, that the oil “ was put there for a purpose ” and he answered in the negative. Bellinger and Sanders were permitted to contradict Moran as to this specific question. I think it was competent to minimize or destroy the inference properly to be deduced from his direct examination that the oil came upon the floor innocently and naturally.

The other objections, 'I think, are unimportant. It is not wise to grant a new trial in a criminal action after a long trial for immaterial error. If that course is to be adopted few judgments of conviction will stand.

The judgment of conviction should be affirmed.

Judgment reversed and new trial ordered.  