
    The People of the State of New York, Respondent, v. Frederick Wagner, Appellant.
    
      Arson—when the proof that the fire was incendiary is insufficient—when such, objection is sufficiently presented by a motion for acquittal and an exception .to a refusal to so charge.
    
    Upon the trial of an indictment charging the defendant with having feloniously set fire to a dwelling house on the night of January 30; 1901, evidence was given tending to show that the defendant had heen a tenant of the building and had been dispossessed therefrom August 1, 1900; that on being evicted he declared that he would set the building on fire; that on January 14, 1901, he was seen in the hallway of the house, and that in a few minutes thereafter there was a fire in the house; that on the night of January 30, 1901, the house was discovered to be on fire; that the defendant spent the "night in question in saloons and about the streets within a few blocks of the premises, and was seen within a block and a half thereof a few minutes after the fire was discovered.
    The location of the fife which occurred" on January 14, 1901, was not disclosed by the evidence nor did it appear that the defendant had access to the place in which it was started. The fire which occurred on January 30,. 1901, started in the cellar of the building, but it did not appear whether or not it was accidentally caused or could have been accidentally caused or how the defendant ' could hav.e obtained access to the cellar.
    
      Meld, that as no evidence had been given tending to show that the fire of January 30, 1901, was of incendiary origin, the defendant was entitled to an acquittal;
    That, as the defendant had moved for an acquittal and excepted to the'refusal of the court to so direct the jury, his failure to except to the charge of the trial ■ judge, in which the latter assumed that the fire was of incendiary origin, did not operate as a waiver of his right- to insist, on appeal from a judgment of conviction, that the-evidence was insufficient in this respect.
    Van Brunt, P. J., and O’Brien, J., dissented.
    Appeal-by the defendant, Frederick Wagner, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 22d day of April, 1901, upon the verdict of a jury convicting the defendant of the crime of arson in the first degree, and also from an order entered in said clerk’s office on the 22d day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis Stuyvesant Chanler, for the appellant.
    
      Howard S. Gans, for the respondent.
   Laughlin, J.:

The defendant was indicted -for arson in the first degree for feloniously burning a dwelling house in the city of New York on the night of January 30, 1901. Upon the trial evidence was given tending to show that between three and four o’clock in the morning of the 30th of January, 1901, a fire was discovered in the cellar of the five-story brick tenement house known as No. 855 East Eighty-eighth street which was occupied by twenty-six families.

Evidence was given tending to- show that defendant had been a tenant. of the building and was dispossessed on the- 1st day of August, 1900; that on being evicted he declared that he would “ fix the landlord and the house by putting it ablaze, and if it wouldn’t blaze he would pour kerosene oil upon it;.” that on the 14th day of January, 1901, he was seen in the hallway and frightened some small boys who were watching him up the stairs out of sight, and in a few minutes after “there was a fire in the house.” It further appeared that he spent the night in question in saloons and about the streets within a few blocks of the premises, and was seen within a block and a half of the premises a few minutes after the fire was discovered.

If the fire was of incendiary origin there was doubtless sufficient evidence to connect the defendant with the crime. We think, however, that the testimony utterly fails to show that the crime of arson was committed by anybody. Not a single fact or circumstance is shown to indicate that the fire on either of these occasions did not originate from natural causes or through accident. The defendant’s conduct on the fourteenth of January, as disclosed by the evidence, is most suspicious, and if he at that time made an unsuccessful attempt to burn this same building it would be competent and cogent evidence tending to connect him with the subsequent fire, if of incendiary origin. It does not appear, however, where the fire was on the fourteenth of January. It was not shown whether it was in the cellar or garret, in a public hall near where he was seen or to which he had access or in a private apartment to which he did not have access.

Taking the testimony “ there was a fire in the house,” which is all the information the witnesses were asked to give, literally the fire may have been in the furnace or in a stove. But probably it should be inferred that the house was on fire, but as has been observed, neither its location nor the attendant circumstances are given.

Concerning the fire on the thirtieth of January, no evidence is given with reference to the use that was made of the cellar, or whether the fire originated near a furnace, a lighted gas jet, or other light or fire from which it might have been naturally or accidentally caused. Nor was any evidence given as to how long before the fire was discovered any one had been in the cellar. Furthermore, it does not appear how the defendant or any one else who did not live in the building could have obtained entrance thereto without breaking a door, window or other opening. There is no evidence that a door was open or unlocked or that an entrance was forced, and we are not at liberty to indulge in presumptions or take judicial notice of those matters.

Too much has been taken for granted on the trial of this case, and the same is -true of many other criminal cases coming before--this court. The People should have offered some evidence tending to show that the fire was of incendiary origin, so as to warrant the-essential finding of the corpus delicti by the jury as a basis for the conviction of the guilty party: There is no presumption that every fire that occurs in a thickly populated city, in- buildings occupied by many human beings, is of incendiary origin, and although a man may have an inclination and a motive for burning a building, yet the burden cannot .be placed on him, if perchance it should burn,, pf showing that the fire was not from natural causes.

We do not find that the defendant in any manner waived his right to insist that, the evidence is insufficient in this regard to ivarrant the conviction. At the close of the plaintiff’s case and at the close of all the evidence he duly moved for an acquittal and excepted to the refusal of the court to so direct the jury. The learned trial judge in his charge to the jury assumed that the fire was of incendiary origin, and no exception ivas taken to this charge, but we think that does not supply the want of evidence of the criminal origin of the fire. . -

The judgment must be reversed and a -new-trial granted.

Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.

Judgment reversed, new trial granted.  