
    The People of the State of New York, Respondent, v. James O. Smith, Appellant.
    1. Arson—Evidence. The evidence in a case of arson examined and held that it tended to support a finding that the fire was of incendiary-origin.
    2. Witness—Corroboration. Where, upon a trial for - arson, the theory of the prosecution is that the fire was the result of a family conspiracy to burn buildings and defraud insurers, and evidence is given that they removed articles of personal property before the fire and subsequently included them in the proofs of loss, the testimony of a principal female witness for the prosecution as to the identity of such articles cannot be corroborated by another witness’ statement that she pointed them out to him as being the same as those mentioned in the proofs of loss, or, in effect, that she told him the same story out of court that she subsequently testified to on the trial.
    3. Evidence — Improper Assumption op Existence of Conspiracy. Upon such a trial the court cannot properly allude to a prior trial and conviction for the same offense of one of the alleged conspirators and assume the existence of a conspiracy for the purpose of admitting evidence of the acts and declarations of another alleged conspirator in the absence of defendant, and the reception of such evidence is reversible error.
    '4. Irrelevancy, of Evidence as to Failure to Pay Promised Wages. A witness for the prosecution, a former servant of the family, who has given important testimony as to the articles mentioned in the proofs of loss, but not destroyed by the fire, cannot be permitted to testify that he was not paid by them his agreed wages, as such evidence might be grouped'with other evidence in the case tending to disparage the methods and moral character of the family, and its reception is prejudicial error.
    5. Instruction as to Hypothesis of Quilt—Improper Qualification of Requested Charge. The refusal to grant a requested charge that the evidence, in order to convict, must be so strong as to remove every other hypothesis than that of the defendant’s guilt, followed by a charge that ‘ ‘ it must be sufficient to remove every reasonable hypothesis,” is error, because the jury may have understood that the evidence need not be so strong as to remove to a moral certainty every other hypothesis than that of the defendant’s guilt or every reasonable hypothesis of his innocence.
    6. Improper Statement of District Attorney. A statement by the district attorney in his opening that he would show, if permitted, that several other buildings owned by the mother and family of the defendant and other buildings which he had assisted in erecting or was interested in were destroyed in a similar manner, with an incomplete statement as to what had happened within less than a year before the Are, which he refrained from finishing after an objection was taken but overruled by the court, constitutes prejudicial error, since' the jury, After the court overruled the objection, may have understood that the district attorney was speaking within proper limits and may have inferred that they were dealing with an old offender.
    (Argued February 28, 1900;
    decided April 17, 1900.)
    
      People v. Smith, 37 App. Div. 280, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 11, 1899, affirming a judgment of the Monroe County Court convicting the defendant of the crime of arson in the first degree, and an order denying a motion for a new trial.
    The defendant was jointly indicted with his father, James Smith. The indictment contained two counts. The first count charged arson in the first degree, in that the defendant and James Smith did on the 6th day of December, 1894, in the town of Greece, Monroe county, unlawfully set on fire and burn in the night time the building and hotel commonly known as the Half" Way House of Frances M. Smith, the same being a dwelling house where at the time there was no human being, and six other buildings of the said Frances M. Smith, the first adjoining the Half Way House and the second adjoining the first, and the third the second, and so on, also four other adjoining buildings belonging to other persons. Only one act of arson was charged. The second count charged arson in the third degree by charging the defendant and James Smith with unlawfully and feloniously setting on fire and burning the same buildings of Frances M. Smith at the place and on the date above named, except the charge that it was in the night time was omitted, and the charge added that the buildings were insured, the intent being to prejudice the insurers thereof.
    
      
      P. Chamberlain for appellant.
    The defendant’s demurrer to the indictment should have been sustained. (Penal Code, §§ 487, 488 ; Woodford v. People, 62 N. Y. 117 ; People v. Wright, 9 Wend. 193 ; People v. Taylor, 3 Den. 98; Reed v. People, 1 Park. Cr. Rep. 481; People v. Upton, 38 Hun, 107; People v. O'Donnell, 46 Hun, 358; People v. Tower, 135 N. Y. 457.) The court erred in overruling the defendant’s challenge for implied bias of Andrew H. Brown and Henry P. Todd, thereby compelling the defendant to exhaust two of his peremptory challenges. (People v. Wilmarth, 156 N. Y. 566; Halstead v. M. Ry. Co., 32 N. Y. S. R. 109.) The opening of the district attorney to the jury was improper, and the defendant’s objection should have then and there been sustained and the counsel corrected by the court. (Halpern v. N. E. R. R. Co., 16 App. Div. 90; Chapman, v. E. Ry. Co., 55 N. Y. 579; McKenna v. People, 81 N. Y. 360.) The court committed numerous errors in the reception of incompetent evidence prejudicial to the defendant. (People v. Corey, 157 N. Y. 332; 148 N. Y. 476; Lambert v. People, 6 Abb. [N. C.] 181; People v. Altman, 147 N. Y. 473; Stokes v. People, 53 N. Y. 164; People v. Wood, 126 N. Y. 249; People v. Strait, 154 N. Y. 165; 1 Greenl. on Ev. 111; 3 Greenl. on Ev. 94; People v. McQuade, 110 N. Y 284; People v. Kief, 126 N. Y. 661.) The court erred in refusing to grant defendant’s motion to strike out the testimony of the witnesses Bid well, La Yiolette and La Flam me, and all the testimony relating to conversations and transactions had with James Smith, Frances M. Smith and Emma Smith, not in the presence of the defendant. (Clark v. Dillon, 97 N. Y. 370; People v. Stark, 59 Hun, 55.) The motion to direct a verdict of acquittal at the close of the People’s case should have' been granted and the exception to the court’s refusal is well taken. (Stokes v. People, 53 N. Y. 183; People v. Williams, 29 Hun, 520; People v. Thompson, 21 Wkly. Dig. 345; People v. Van Houter, 38 Hun, 168; Shepherd v. People, 19 N. Y. 537; Best on Presumptions, § 210; People v. Kelly, 37 Hun, 160; 
      People v. Humphrey, 7 Johns. 314; People v. Bennett, 49 N. Y. 137; People v. Owens, 148 N. Y. 648.) There was a fatal variance between the proofs and the allegations of the indictment. (People v. Dumar, 106 N. Y. 502.) It was error for the court to permit the district attorney, upon cross-examination, to go into the relations of the defendant with one Barbara Buff. (People v. Corey, 148 N. Y. 476; Hutchins v. Hutchins, 98 N. Y. 56; Jackson v. Osborn, 2 Wend. 555 ; People v. Gay, 7 N. Y. 378; People v. Fitzgerald, 156 N. Y. 253.) The verdict of the jury was against the evidence, and defendant’s motion for a new trial upon the' minutes should have been granted. (Clark v. Dillon, 97 N. Y. 370.)
    
      S. J. Warren for respondent.
    The indictment is not bad for duplicity, and the defendant’s demurrer was properly denied. ( Woodford v. People, 62 N. Y. 117; Taylor v. People, 12 Hun, 217; Code Crim. Pro. §§ 285, 684 ; People v. Shorter, 2 N. Y. 193 ; 1 Colby Crim. Law, 267, 268; People v. Buddensieck, 103 N. Y. 496 ; People v. Dimick, 107 N. Y. 29; People v. Clements, 107 N. Y. 210; People v. Weldon, 111 N. Y. 575; People v. Willett, 102 N. Y. 253.) There was no error in the court overruling the defendant’s challenge for implied bias of Andrew H. Brown and Henry P. Todd. (People v. Wilmarth, 156 N. Y. 569.) The remarks of the district attorney in his opening were proper. (People v. Greenwall, 108 N. Y. 296; People v. Shea, 147 N. Y. 79; People v. McKane, 143 N. Y. 455; People v. Murphy, 135 N. Y. 450; Hope v. People, 83 N. Y. 418; People v. Peckens, 153 N. Y. 576 ; People v. McLaughlin, 150 N. Y. 365; People v. Van Tassel, 156 N. Y. 561; People v. Place, 157 N. Y. 598.) No error was made by the court in the reception • of evidence. (People v. McQuade, 110 N. Y. 284; People v. Murphy, 3 N. Y. Cr. Rep. 338 ; People v. Kief, 126 N. Y. 661.) The refusal of the court to grant defendant’s motion to strike out the testimony of the witnesses Bidwell, La Yiolette and La Flamme, and all the testimony relating to conversations and transactions had with James Smith, Frances M. Smith and Emma Smith, not in the presence of defendant, was proper. (People v. McKane, 143 N. Y. 455; People v. Wicks, 154 N. Y. 766 ; 11 App. Div. 539; People v. Peckens, 153 N. Y. 576; People v. Willis, 54 N. Y. Supp. 129.) There was no variance between the proofs and the allegations in the indictment. (Woodford v. People, 62 N. Y. 117.) The district attorney was properly allowed upon cross-examination to go into the relations of the defendant with Barbara Ruff, (People v. Eckert, 2 N. Y. Cr. Rep. 470 ; People v. Irving, 95 N. Y. 541; Ryan v. People, 79 N. Y. 594; People v. Noelke, 94 N. Y. 143; People v. Tice, 131 N. Y. 651; People v. Webster, 139 N. Y. 73; People v. Dorthy, 156 N. Y. 237.)
   Landon, J.

1. In view of the lack of unanimity in the affirmance by the Appellate Division of the judgment of conviction, we have examined the record to ascertain as a question of law whether there is evidence tending to support’ the verdict. The single question in this part of our investigation is whether there is evidence tending to support the finding that the fire was of incendiary origin.

The fire broke out about two o’clock in the morning of December 6th, 1894; in the Half Way Flouse, a building belonging to Mrs. Frances M. Smith, situate on the Boulevard in the town of Greece, Monroe county. The building was occupied by James Smith, the father of the defendant, as a hotel, but at the time of the fire the business done in the building was very slight, and had practically ceased. The defendant spent the night of the fire at the house of his sister, Emma Smith, on Meigs street in the city of Rochester, about three miles away from the Half Way House. James Smith and his servant, Thomas Bid well, and a carpenter named La Flam me in his employ, sat around a small stove in the barroom during the evening before the fire and until about midnight, when they together left the building, and all of them went to the Electric Cottage, so called, directly across the street, where the senior Smith and his wife, Frances M. Smith, the mother of the defendant, resided. Two hours later the senior Smith gave the alarm of fire. He was then in the street, clothed in his usual manner. The fire appeared to be in a bedroom in the second story. There is no direct evidence of any combustible materials there, or showing how the fire originated. The jury seem, in view of the circumstances, to have inferred that the senior Smith went in there and kindled it, and then gave the alarm. The fire extended and consumed eleven buildings. Seven of these buildings belonged to Mrs. Smith, the mother of the defendant. They were insured in various companies. There is evidence that the buildings, or some of them, were constructed by the defendant and his father of cheap materials and by low-priced labor, and that the insurance companies settled the losses for less than the face of the policies, but no other evidence that they were insured for more than their value. The contents of the Half Way House and the store adjoining were also insured. Evidence was given tending to show that shortly before the fire the defendant, his father and mother removed from these buildings most of their contents, and that after the fire they with their sister co-operated in making proofs of loss in the name of defendant’s mother in which these removed articles, and some others that were never in the buildings, were inserted as destroyed. There was also evidence to the effect that the defendant and his father in conversing with each other made some remarks susceptible of a construction that a fire would occur, and after the fire that the defendant made some remarks indicating a desire to suppress information, about the fire. The theory of the People was that the defendant, his father, mother and sister Emma, before the fire, entered into a conspiracy to burn the Half Way House and store and defraud the insurance companies afterwards, and that the Half Way House was set on fire in'pursuance of this conspiracy. Of course, the fire might have been accidental, or the work of some unknown incendiary, and the conspiracy to defraud the insurance companies, if such there was, have been formed after the fire. But we cannot say that there was no evidence tending to support the finding that the fire was of incendiary origin. The evidence also tends to show that the defendant, although absent at its origin, aided and abetted, counseled and induced his father to commit the act, and thus to convict the defendant as a principal. (Penal Code, section 29.) The competency of some of this evidence is challenged. .

2. A Miss La Yiolette was the principal witness on the part of the People to prove the incriminating remarks of the defendant and his father, the removal by the defendant, his father and mother of the personal property from the Half Way House before the fire, their co-operation with each other and his sister in making the proofs of loss after the fire, and the inclusion in the proofs of loss of the removed articles and others not destroyed. Her history of herself and of her relations with the Smiths tended to impair her credibility.

The People placed the proofs of loss of the personal property in the Half Way House and store in evidence and then jailed Miss La Yiolette. She testified that some of the articles mentioned therein were removed from the house before the fire and taken to the house of Emma Smith in Meigs street, Rochester, and others to the Electric Cottage, a house occupied by the Smiths on the opposite side of the street from the Half Way House, and she specified the articles. In doing this she responded mainly to questions asked by the district attorney as he read from the proofs of loss, one article after another named therein. She then testified that some time after the fire she went with Officers Muir and Hawley down to the Electric Cottage and saw the articles, and she there pointed out and identified in the presence of the officers some of the property that had been in the Half Way House and store. She also testified that she went with them to the house on Meigs street, and that some of the articles named in the proofs of loss were there, but she did not testify that she pointed out any of the articles to the officers.

The People then called Officer Muir, who testified that he went with Miss La Yiolette to the Smith house, on Meigs street, and that she there pointed out to him many articles, of which he produced the list, and the defendant’s objection to its competency being overruled and the defendant excepting, he further testified that she identified - all the property with the exception of some books as coming from the Boulevard, that is, from the Half Way House and store. In like manner, under like objection and exception, the officer testified that Miss La Yiolette, on the same day, pointed out to him at the Boulevard several articles of the like kind named in the proofs of loss.

It was competent for the officer .to enumerate the articles he saw at the house in Meigs street and down at the Boulevard, and to describe them. Such evidence might assist the jury in identifying the articles with those set forth in the proofs of loss. But it was not competent for him to testify that Miss La Yiolette identified the articles, or pointed them, out to him, as the same mentioned in the proofs of loss. In effect, his testimony was that she told him the same story out of court that she had testified to in court. Officer Muir’s testimony as to her acts and declarations was not competent to support her testimony as to the identity of the articles with those in the proofs of loss; but when adroitly adduced under the sanction of the court it might seem to the jury to be a conclusive corroboration, and they might believe, as they probably did, that, as she was thus corroborated in this particular, she probably told the truth in other important particulars as to which she was contradicted or her truthfulness challenged.

3. Miss La Yiolette was also permitted, over the defendant’s objection and exception, to testify to the acts and declarations of Mrs. Frances M. Smith, the mother of the defendant, in his absence, on the day before the fire, tending to show, in connection with the subsequent fire, her removal of some articles from the Half Way House in anticipation of the fire. In overruling the defendant’s objection the trial court said: “ Received, because I suppose the evidence will follow up the same line it did in the other case (meaning the trial before the same court of the defendant’s father upon the same indictment, upon which he was convicted, which trial and conviction were sufficiently alluded to upon this trial to enable the jury to understand the reference made by the court), and' there is no doubt in my mind but there was evidence to go to the jury on the question of conspiracy between all these people.”

Thus the court assumed, for the purpose of receiving the testimony, the. existence of a conspiracy, not- upon the evidence adduced in this case, but upon evidence alleged by the court to have been received in another case, which was quite satisfactory to the mind of the court. What the evidence was in the other case we do not know; whether the same was after-wards given in this case we do not know. That case and the evidence of a conspiracy in it were irrelevant and incompetent here, but, nevertheless, they were cast into the scale to the prejudice of the defendant, enhanced in influence by the declarations and approval of the court, the true weight and merit of which the jury had no other means of determining and were not at liberty to know. (People v. Corey, 157 N. Y. 332.) Moreover, there is no direct evidence that the fire was of incendiary origin. The remarks of the court, assuming that the. jury knew of the conviction of defendant’s father, tended to ease their minds of scruples on that score. -

4. Thomas Bidwell was a witness for the People. He lived with the Smiths at the time of the fire. He was about fifty years old, was a cripple, and, before accepting the protection and entering the service of the Smiths, he had lived and wandered with the gypsies. After the fire he seemed to have fallen under the influence of Miss La Violette, and he gave important testimony as to the articles mentioned in the proofs of loss but not destroyed by the fire. He testified, over the objection and exception of the defendant, that the Smiths promised to pay him ten dollars per month, but never paid him. This was error. Other testimony as to which the defendant’s objection to its irrelevancy was, perhaps, properly overruled, tended to disparage the methods of the Smiths, and thus their moral character, and makes it clearer that this testimony of Bid well, which could be grouped with the other, was prejudicial to the defendant.

5. The defendant requested the court to charge: “ That before the jury can convict this defendant the evidence must be so strong as to remove every other hypothesis than that of the defendant’s guilt.

“ By the court: I decline to charge in that language.

“ Exception.

“ By the court: I charge that it must be sufficient to remove every reasonable hypothesis. Exception.”

The request was not technically proper, since the rule is that the evidence must, to a moral certainty, or beyond a reasonable doubt, exclude or remove every other hypothesis than that of the defendant’s guilt. (Ruloff v. People, 18 N. Y. 194; People v. Fitzgerald, 156 N. Y. 253.) But the qualification was improper, since it is difficult to conceive how any hypothesis of the defendant’s innocence that remains reasonable under the evidence can be removed by it. The hypothesis of innocence must appear by the evidence to be unreasonable in order to be excluded or removed by the evidence. Doubtless the learned trial judge did not aptly express his own meaning. But his refusal to charge, followed by such a qualification, was confusing to the mind. The jury might have understood that the evidence need not be so strong as to remove to a moral certainty every other hypothesis than that of the defendant’s guilt or every reasonable hypothesis of his innocence.

6. In opening the case to the jury the district attorney used this language : “ We shall show you, if permitted, that before this fire, which occurred at the Boulevard, in which some seven buildings owned by the mother and family of this defendant were burned, many other buildings which this defendant had assisted in erecting, or in which he was interested, were destroyed in a similar manner. Within less than a year before the fire on the Boulevard-”

Before this statement was completed the counsel for the defendant raised the objection that it was improper. This objection was. however, overruled by the court, to which ruling an exception was taken, whereupon the prosecuting attorney remarked : If counsel insists upon it, I will not go into the matter at this time.”

The statement made by the district attorney was thus approved by the court and may have had a prejudicial influence with the jury. If the district attorney had the right to make the proof he proposed he did not make it, and thus may have prejudiced the defendant by a charge he could not or did not intend to support; if the district attorney had no right to make the proof then the charge, although no more harmful to the defendant, was a more reprehensible invasion of his rights. In this case the defendant did not by his own hand burn or set the building on fire. The charge is that, although three miles away at the time, his father did it in the execution of a conspiracy with defendant. There could have been no. innocent conspiracy to do such an act, no execution of it by honest inadvertence. Res ipsa loquitur as to the willfulness of such an act.

The second count of the indictment charges arson in the third degree, in that it omits to charge, as the first count does, that it was committed in the night time, and charges that it was committed with the intent to prejudice the insurer thereof; the manifest office of the second count was to prepare the way to use the evidence under it to secure conviction upon the first count. To admit evidence also that the defendant had committed the like ofíense before, would be to permit evidence of one to secure conviction of another.

This case is unlike the cases of larceny by trick or device, obtaining money under false pretenses, receiving stolen property knowing it to have been stolen, passing counterfeit money knowing it to be such, where the intent is determinative of the crime, bpt often remains in doubt when but the single transaction charged in the indictment is unfolded. An honest man may by chance be confronted by all the accusing circumstances and yet be innocent. If, however, it should appear that a person thus confronted and protesting his innocence, had been involved in the like circumstances upon former occasions, confidence in his honesty would probably be replaced by a conviction of his rascality. Many cases illustrate this view, and show when such evidence is admissible. (People v. Jefferey, 82 Hun, 409; People v. Dimick, 107 N. Y. 13; People v. Everhardt, 104 N. Y. 591; People v. Altman, 147 N. Y. 473 ; Copperman v. People, 56 N. Y. 591; Mayer v. People, 80 N. Y. 364.) They have no application here.

It is difficult to lay down an inflexible rule applicable to irrelevant statements by the public prosecutor to the prejudice of the defendant. In some cases it is manifest they do no harm. In others, where the case depends upon a mass of circumstances, many of which are contradicted, others equivocal except as light is reflected upon them by their association, it is more important that nothing- but proven and relevant facts should be brought into the whole field of observation from which the jury are to deduce their conclusion. And as the field enlarges it is the more important that care should be taken to prevent the mingling of mere statement with fact. Enough has already been said to show that the ease before us is of the latter kind. If the court had sustained the objection of the defendant, the jury would have been instructed as to the range of the inquiry. As the court overruled it, they understood the district attorney to be speaking within proper limits,, and they might have inferred that they were dealing with an old offender.

The judgment should be reversed and a new trial granted.

Parker, Oh. J., O’Brien, Bartlett, Martin and Vann, JJ., concur; Haight, J., concurs in the third proposition only expressed in the opinion.

Judgment reversed, etc.  