The defendant was indicted with one John Blum for- setting fire to and burning a dwelling house, No: 264 Division street, and upon the trial on this indictment the defendant was convicted of arson in the first degree. There is one exception in the record which I *369think is fatal. The principal witness against the defendant was one Schoenholz, an accomplice, who testified that he lighted the fire at 264 Division street at the instigation of the defendant. The first talk he had with the defendant on the subject was in August, 1891. At that time the witness moved the defendant’s furniture from Division street, and the defendant then told the witness that, right after the Jewish holidays, he was to have another’ job to move his store to Newark;, that Zucker.said: “I got to burn down this shanty; otherwise the Board of Health, will condemn it, and if I should go to fix it up, it will cost about $2,000, and I will give the company a chance to fix it up- for me.” Blum, who was the owner of an adjoining house, entered into the arrangement by which both houses were to be burned or damaged by fire or water. The defendant also said that he had got a store in Newark in the name of one Seltzer, saying that he could have it insured in Seltzer’s name. After the Jewish holidays in October, the witness saw the defendant again, and the defendant said : I am going to move the store now to Newark; I have got a store already. First thing you will move me is the fixtures, boards and other things that belongs to the fixtures.” ■ The next day the witness again saw the defendant, and Seltzer and the witness moved some boards and a case of goods from the cellar, and some clothing and other articles, and took them to Newark. Seltzer went with the witness on the wagon, and when they got to Newark,. Zuker, the defendant, was there. The next day the witness carted a big truck of clothing from the same place to Newark from 264 Division street, and another load on the following day, three loads altogether. These goods were mostly clothes bundled up, but inside of the bundles some of them were burned over the edges. Subsequently, the witness had- another interview with the defendant at the Division street house, at which he said : “Now, I am going to prepare this place to burn it down, and I will see what kind of an engineer you will make.” The defendant then detailed the plan by which the fire-was to be started, and ended up by saying : “ Right after'the fire in •Newark I am going to prepare this.” The witness testified to a subsequent conversation with the defendant- in the latter part of December, at which the witness said: “ So you had a fire there *370already ,in Newark. ' Fou kept your word. You were going to let ■ me have it, to let me do it,” and the defendant said : “ You could not have done it anyhow, and the best luck that I ever had happened to me at this fire.” , The witness then described how- the defendant stated that he started the fire in Newark, and who also said,: “ Now, we are going, to ’ prepare . this, to burn down this shanty.” On January fourth the witness was again at. the-house in Division street with the defendant, when, as he testifies, the preparation for the fire was made. The partitions between Zucker’s house and Blum’s house were broken. down ; twenty gallons of benzine, were procured, and the defendant'took' the benzine and poured it into tubs or barrels, directed the witness to sprinkle some of the benzine upon the stairs and curtains, and then the defendant left the house, leaving the. witness in charge. Subsequently the defendant .returned and sprinkled the benzine all over the woodwork and on •the wall between his house and Blum’s house, and wetted the curtains and the staircase with it; and, finally, when the arrangement's were completed, the defendant told the witness that he would give him'twenty-five, dollars to light the candle. The defendant then went away, leaving, the.witness in the house. Sometime after the witness lighted the candle he went to the corner of Montgomery and Division streets, in a liquor store, waited there' until the fire broke out and until it was extinguished.
We have here the testimony of the participation by the defendant in. the burning of the Division street house, the crime for which he was indicted and convicted, If this testimony is true, the crime •with which the defendant is charged is proved. This' witness^, how* ever,, being an accomplice, the jury were not justified in convicting •unless his testimony was corroborated. For the purpose of such corroboration, the district attorney called one John Heath, who resided in Newark, and others, who - were, against the objection and exception, of the defendant, allowed to testify to facts tending to show that the defendant had set fire to the Newark house. The district attorney was, therefore, allowed to prove the commission by the . defendant of the crime of arson in Newark upon' an. indictment-charging a commission by the defendant of the crime of arson in New York. There was no immediate connection between the two crimes. ‘ According to the testimony of the conversations of the. *371■defendant, the Newark fire was started by the defendant himself, while the New York fire was started by an accomplice in the absence of the defendant. No immediate connection between the burning of the two buildings is shown, and nothing is shown to make the two fires a part of the one conspiracy or one crime. They seem to ■ have been as much independent crimes as the murder at different times of two people, one of whom was killed in Newark and the other in New York. No intention is disclosed of making one fire for the purpose of drawing suspicion from the defendant as to the other. There is no direct connection between them, except the fact that the defendant had stated to the witness that he intended to burn both buildings. When the district attorney offered evidence to show that the defendant was guilty of the crime in Newark, the learned court held that the evidence was only competent as tending to corroborate the accomplice, and it was admitted for that purpose. It will be noted, however, that the accomplice had not testified that the defendant had committed the crime in Newark, but merely testified to conversations in which the defendant expressed an intention to commit the crime and subsequent statement that he had committed the crime. In ■overruling the objection of the defendant the court said : “ The testimony upon the part of this witness is offered for the purpose of showing Zucker’s presence there (at the Newark store); that there was a clothing store opened about two months previous to this Christmas, and that a fire did occur, Schoenholz having testified that Zucker told him that that fire had occurred in the manner which they had intended and provided for. This is, therefore, to that extent corroborative. What weight is to be given to it, of course, is for the jury, but the competency of the evidence, I think, cannot be doubted.” I think that this evidence as to the Newark fire was entirely incompetent upon the trial of an indictment for setting fire to a house in New York, and it is quite clear that it was error which was essentially injurious- to the defendant. The jury were not authorized to convict upon the testimony of this accomplice, unless it was corroborated; but the corroborative evidence must be such as to show the commission of the crime for which the defendant is indicted, or to connect the defendant with it. It is not permissible for the accomplice to testify to the commission of a crime entirely *372independent of that for which the defendant was indicted, and then prove the commission of such independent crime to corroborate the-accomplice. The testimony of the conversation between Zucker- and this accomplice as to the Newark fire was not objected to and probably was competent as a part of the conversation, between the witness and defendant, at which the commission of the crime for which the defendant was on, trial was arranged for; but proof that the other crime referred to in the conversation was actually committed is incompetent as evidence to show that the crime-charged in the indictment was committed. How does it tend' to-show that the defendant was guilty of setting this house in Division street on' fire, to prove that he was guilty of setting a Newark house on. fire, except so far as it makes it probable that a man who had committed a similar crime before would commit the crime for which he was indicted ? Such evidence has always been held incompetent. We think this rule was violated in this-case when the People were allowed to prove, as evidence of guilt of the defendant upon this indictment, or as evidence tending to corroborate the accomplice, that he had been instrumental in setting on fire a house in Newark, New Jersey. It is true-that the mere fact that this evidence proved another crime against, the defendant did not make it inadmissible, if it -was relevant to-prove the crime for which the defendant was indicted ; but the difficulty is that the crime charged was not a scheme or conspiracy to-set fire to two houses, one in Newark and the other in New York,, but was that the defendant had set on fire and burned a house in New York.
The rule as to the admission of testimony which tends'to prove: crimes other -than that for which a defendant is indicted, has been much discussed by the Court of Appeals in.some late cases. In The People v. Shea (147 N. Y. 99) it is said: “ 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 bé more *373apt to commit the crime in question.” The court then proceeded to discuss the limitations of this rule, and said: “ Evidence, however, which is relevant to the issue by tending, for example, directly to explain or characterize the act which is in question on a criminal trial has never been held incompetent or inadmissible because it also tended to, or did, prove the accused guilty of another crime ;" and it was held in that case that the testimony which was objected to was competent upon the question of the intention and deliberation of the defendant’s firing the shot that killed;
In the case of People v. Sharp (107 N. Y. 467) Judge Peokham, after a review of all the cases, affirms the general rule before stated, " that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded. But for the purpose of showing guilt of the. offense for which the prisoner is on trial, as also for the purpose, where that is important, of showing the motive or intent with which an act claimed to be a crime was committed, evidence which is material upon such issues is admitted, although it may also tend to show, or even directly prove, the guilt of the accused of some other felony or misdemeanor.”
In this case premeditation or deliberation was not required to be proved. Knowledge of the character of the act was not required to be proved. The defendant was indicted for setting fire to a dwelling house in the city of New York, and the act of setting fire to that house was what the People had to prove. "What possible relation had the setting fire to the building in New ark to the burning of this house in New York 1 It is true that there is evidence that the defendant had stated that he intended first to burn one house and then the other, but when he stated that intention he stated an intention to commit two crimes, only connected with each other because they were of the same general character. He could have been indicted and convicted of arson in Newark whether he had. committed the crime of arson in New York or not, and so his guilt of the crime in New York did not depend in any way upon his carrying out his intention as to the Newark crime.
The illustrations in the opinion of Judge Peckham in the case of People v. Shea (supra) show the extent to which testimony of *374other crimes is admissible. Thus, where the evidence is admitted tosh ow guilty knowledge of the character of the act committed by the prisoner, as in the case of an indictment for passing counterfeit money, and also in the case of an indictment for shooting an individual, .of which the case then before .the court is an example. Cases of-’ embezzlement and obtaining money under false pretenses, are also noted, where the claim that a false entry by which funds, were embezzled was a mistake, is met by proof that other false entries of the. same kind had been made about the same- time by the-same person ; and such evidence has been admitted, for the purpose-of showing the motive for the commission of the crime charged.
Now, it is clear that none of these exceptions can.apply to -the case at bar. These crimes,, as before ¡stated,, were absolutely distinct.. They, had no relation one to the other, except so far as the .defendant had admitted to his accomplice that he intended to commit them both. The Newark crime was not so connected with the New York crime by evidence as to make it appear that the same person committed both crimes; and thus evidence that the defendant committed the Newark crime would not he competent to show that-lie committed the New York crime ■ nor was the. question of motive involved. I can conceive of no principle upon which these crimes were so connected as to. make evidence that he ¡committed one crime competent ■to-prove that he was guilty -of the other, except upon the principle that a man who would- set fire to a house in New Jersey would.be quite likely to set fire to. a house in New York. The competency of such evidence has "been consistently repudiated: by the common law. As before stated, it was not competent for- the purpose of corroborating- the testimony of the accomplice upon any fact tending to-show that the crime for which the defendant was indicted was committed, or to connect the defendant with the commission of that, crime; for this evidence tended only -to corroborate him as to conversations with the defendant about the commission of another crime, and as that did not tend to connect the defendant with the crime for which lie was indicted, nor to prove that, such crime had been committed, such corroboration was ineffectual,"not being such corroboration of an accomplice as the law requires. This evidence was Objected to and admitted over the exception of the- defendant. The learned trial judge seems to have recognized its. incompetency for the purpose of *375proving the defendant guilty of the crime and confined its effect solely to the corroboration of the accomplice. The court in the charge to the jury said that the testimony of.the Newark fire “was only admitted before yon for the purpose of establishing, if it could, some connection of Schoenholz and Zucker with the two fires, and so corroborate the story of Schoenholz that there .was to be a fire, according to this conversation with Zucker at Newark ; ” and the jury were then instructed “ not to consider whether he is guilt}' or not of the fire in Newark, hut.only whether the circumstances testified to by other witnesses fortify and corroborate Schoenholz and Meyers in the main story which they testified to before you.” Now this limitation of the effect of the evidence could not cure the error in -its admission, if it was not competent to prove the fact of such corroboration, and I think that it was clearly incompetent for that purpose.
I am constrained, therefore, to dissent from the affirmance of this judgment. ■
Judgment affirmed.