The defendant was indicted jointly with one Isador Stein on the charge of arson in the second *Page 75 degree and was convicted. At the Appellate Division the judgment of conviction was unanimously affirmed, and the case is now before this court on defendant's appeal.
The specification of the first count of the indictment is that the defendant and Stein, in the daytime and on the 1st day of December, 1910, did willfully and feloniously set fire to and burn a certain dwelling house of one Sam Gold, in the borough of The Bronx, in the city of New York, in which dwelling there was at the time some human being. The other two counts are simply repetitions of the first, with the exception that each names a different person as the householder in whose dwelling the fire took place. The defendant now challenges the sufficiency of the indictment on two grounds: 1. That it refers to a dwelling house but does not state in precise terms or by description where the house was located. 2. That it states that there was some human being in the house at the time of the fire, but does not identify the person by name or otherwise. Both of these objections could have been raised by demurrer (Code Crim. Pro. sec. 323, subd. 2), but they were not available to the defendant at the trial or on his motion in arrest of judgment (Code Crim. Pro. sec. 331), and for that reason they cannot be considered on this appeal.
The case was tried for the prosecution upon the theory that the defendant and Stein had entered into a conspiracy to induce various persons to insure their household effects for the purpose of having them damaged or destroyed by fires which were to be made by Stein; and that the defendant's part in the scheme was to take care of the adjustment of the losses and the collection of the insurance moneys for a stipulated percentage, out of which he was to pay Stein for the setting of the fires. As to the fire referred to in the indictment, the two principal witnesses were Gold, the owner of the property which had been insured and burned, and Stein, who laid and started the fire. Their testimony tended to *Page 76 show that Gold had procured insurance upon his household goods, pursuant to an understanding with the defendant that Stein should be employed to make a fire, and that then the defendant would attend to the adjustment of the loss and the collection of the insurance. With the details of this branch of the trial we need not concern ourselves, for the judgment entered upon the verdict has been unanimously affirmed, and that imports absolute verity of everything not challenged by objection and exception.
The prosecution adduced evidence, from Stein, of nine other incendiary fires in which the defendant is said to have been implicated with Stein, and of one fire in the defendant's own premises with which Stein had no connection. All of this testimony was received by the trial court over the objections and exceptions of defendant's counsel. These exceptions are the defendant's principal reliance on this appeal, although there are others to which we shall have occasion to refer. Before we give more specific attention to the testimony of other crimes adduced by the prosecution against the defendant, it will be useful to have in mind the theory upon which its admission is sought to be justified on the one hand and condemned on the other.
It is one of the distinguishing features of our common-law system of jurisprudence that, as a general rule, a person who is on trial charged with a particular crime may not be shown to be guilty thereof by evidence showing that he has committed other crimes. The reason for this general rule has been stated by this court in a number of decisions, but never more tersely and clearly than by Judge PECKHAM in People v. Shea (147 N.Y. 78,99): "The impropriety of giving evidence showing that the accused had been guilty of other crimes merely for the purpose of thereby inferring his guilt of the crime for which he is on trial, may be said to have been assumed and consistently maintained by the English courts ever *Page 77 since the common law has itself been in existence. Two antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for many years. One of these methods favors this kind of evidence in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of his whole past life, his tendencies, his nature, his associates, his practices, and, in fine, all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such a course is pursued than where it is omitted. The common law of England, however, has adopted another and, so far as the party accused is concerned, a much more merciful doctrine. By that law the criminal is to be presumed innocent until his guilt is made to appear, beyond a reasonable doubt, to a jury of twelve men. In order to prove his guilt it is not permitted to show his former character or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question." The same subject is discussed at length in People v. Molineux (168 N.Y. 264, p. 292), and more recently in People v. Dolan (186 N.Y. 4), in People v. Katz (209 N.Y. 311) and in other cases. There are, however, certain recognized exceptions to this general rule which cannot be scientifically classified or enumerated, but which by common consent have long been grouped under five or six separate heads. Evidence of other crimes is of course always admissible when such evidence tends directly to establish the particular crime; and evidence of other crimes is usually competent to prove the specific crime when it tends to establish (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, (5) the identity of the *Page 78 person charged with the commission of the crime on trial. (People v. Molineux, supra.) By eliminating, as inapplicable to the case at bar, the first, second, third and fifth of these judicial engraftments upon the general rule, we come at once to the one which the district attorney invokes. He argues with much force that the evidence of other crimes in which the defendant and Stein are said to have been jointly concerned tends to prove the existence of a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of any one tends to establish the commission of the others. Even if we were to concede the applicability of this rule to the case at bar, we do not find any justification for the reception of the testimony showing that there had been a fire in the house occupied by the defendant. Stein testified that he had nothing to do with that fire, and there is no evidence that it was of incendiary origin, except as that inference may be drawn from the admission of the defendant to Stein to the effect that one Titelbaum was the incendiary. That admission would of course be competent evidence against the defendant on a trial for the particular offense, but it was utterly irrelevant to the question whether the defendant and Stein had entered into a conspiracy which resulted in the fire charged in the indictment. According to the record there was not the remotest connection between the fire on the defendant's premises and the fire charged in the indictment or any other of the nine different fires in which Stein says the defendant was implicated. The fire in the defendant's house occurred before there was any conspiracy between the defendant and Stein, and it had no more relation to the other offenses than an assault or a theft committed by the defendant. The error in receiving this evidence was in itself so serious as to require a reversal of the judgment, but we cannot stop here, for the record discloses other equally prejudicial errors which must be avoided on another trial. *Page 79
Stein testified to various conversations with the defendant which tended to establish the existence of a conspiracy between them for the making of fires in which Stein was to be the actual incendiary and the defendant was to assist in the adjustment of the losses and the collection of the insurance, while both were to receive stipulated shares of the proceeds. To the extent that this testimony was directed to the establishment of a general plan or scheme which resulted in the Gold fire charged in the indictment it was clearly competent, and it may be stated in passing that there was evidence of this nature which was ample to support the verdict convicting the defendant. This testimony was competent because it bore directly and cogently upon the defendant's guilt of the crime charged, through the criminal agency of Stein.
We have yet to consider, however, whether the evidence as to other specific fires tended to prove the felonious origin of the fire set forth in the indictment. In that connection we must not overlook the fact that each of the nine other fires was a separate and independent transaction entered into as the occasion arose and not in pursuance of any preconcerted general plan or design. There was between them no such relation of time, place or circumstance that the bare evidence as to the origin of any one of these fires, in and of itself, tended to prove the origin of the Gold fire. The Ledermann fire, according to the testimony of Stein, occurred in the latter part of 1909. The time of the Greenberg, Goldberg and Sardoff fires is not fixed. The fires of Shapiro, Wasserman, Titelbaum and Dreier are said to have taken place respectively in April, June, July and November of 1910. Each was the subject of a separate and distinct conversation or understanding based upon the particular occasion as it arose. None had any relation to the Gold fire except that all are said to have sprung from the general agreement between the defendant *Page 80 and Stein. It is to be noted also that the evidence as to these other fires is quite unsatisfactory. Excepting Gold, not one of the persons whose property is said to have been damaged or destroyed by fire was called as a witness, and Stein's testimony was very uncertain as to the places where these several fires occurred. From the prejudicial nature of such evidence as was given by Stein of other separate fires in which the defendant is said to have been concerned, it is obvious that it should not have been received unless the perpetration of any or all of these acts tended, by visible connections, to prove the defendant's complicity in the crime charged in the indictment, and we think we have demonstrated that it had no such effect. Even in a case where evidence of this kind is so dubious that a court cannot clearly perceive its relevancy, the benefit of the doubt should be given to the defendant instead of permitting jurors to become prejudiced by independent facts which carry with them no proper proof of the particular crime charged. As we have already had occasion to observe, the subject is one which cannot be treated with dogmatic or scientific precision. In the final analysis the application of the general rule and its recognized exceptions must depend upon the special facts. In concluding our discussion of this branch of the case we deem it proper to add that the antithesis of the case at bar is to be found in the case ofPeople v. Duffy (212 N.Y. 57), in which a police officer in the city of New York was convicted of bribery. There it appeared that the accused had received from a certain individual a sum of money as a bribe. It was received under circumstances which rendered it proper, if not necessary, to give evidence of the defendant's guilty intent. It was shown, moreover, that the specific sum which the accused there received was but one of many contributions which had been regularly levied upon the proprietors of various resorts and establishments under a general plan or system. There proof of the system was cogent and competent evidence *Page 81 of the guilty character of the particular act. In the case at bar there was no such connection, and this is the determining difference between the two.
Since there must be a new trial we shall consider two other minor errors in order that they may not be repeated. Aside from Stein, the principal witnesses against the defendant were Gold, Mrs. Gold and one Roch. Defendant's counsel tried to show that these witnesses were ill-disposed toward the defendant, and on their several cross-examinations he had interrogated them as to certain hostile acts and expressions against the defendant which they either denied, or explained with some equivocations. When the defense had the case several witnesses were called by whom the defendant's counsel sought to prove the hostile expressions and acts against the defendant which the witnesses Gold, Mrs. Gold and Roch had, on their cross-examinations, either denied or explained. The trial court ruled that this evidence was inadmissible. It is probably fair to assume that this ruling was not predicated upon the idea that evidence of this character is never admissible, but rather upon the ground that counsel's questions were inartificial or insufficient. Of this feature of the case it is enough to say that evidence of this character is generally competent, but whether it is brought within the rule governing the subject can only be decided in the light of the conditions under which the question arises. Defendant's counsel called a witness to contradict Gold as to certain hostile expressions which it is claimed the latter had made against the defendant. Before the counsel could complete his question the court ruled against him, and it is, therefore, not clear whether the evidence should have been received. It is plain, however, that the counsel should have been permitted to state his question to the witness.
The district attorney called as a witness one De Malignon, who was an assistant fire marshal in the city of New York. In his official capacity he had visited the Gold *Page 82 premises and investigated the fire. He was asked to give his opinion of the origin of the fire, and in answer he enumerated a number of facts which it was quite proper for him to state, and which he stated "indicated to my mind the fire was set." The question put to this witness was shorn of much of its harmful effect by the nature of his answer, which was quite unobjectionable with the exception of the conclusion which we have quoted. This is not a case for expert opinion. The physical facts, which are the subject of investigation, are so simple that they can be readily understood when properly described, and it is then for the jury to draw the appropriate conclusion.
The judgment of conviction should be reversed and a new trial ordered.