Of the various reasons assigned by the learned .counsel for the defendant why the judgment of conviction in this case should be reversed, there are but two which, as I view it, seem to require serious consideration.
Upon the trial the defendant offered himself as a witness in his own behalf, and upon his cross-examination he was asked by the prosecuting attorney if he had not for five or six years past been living in criminal intercourse with a certain woman whose name was given ; and when, upon stating that he did not know what was meant by that term, he was asked whether or not he had not had intercourse with this woman, he answered “ I might have.” This evidence was received under objection, and the exception taken to its reception raises one of the questions upon which counsel apparently places great reliance.
The right of a party charged with the commission of a crime to testify in his own behalf is one which did not exist under the common law, nor was it conferred by statute until a comparatively recent period ; but now that the right does exist, a party who avails himself of it and enters the witness box stands in precisely the same situation as any other witness, and upon his cross-examination may be required, unless he claims his privilege, to answer any and every question which tends to affect his credibility. This rule is too well settled to require the citation of authorities, but the reason for it is quite fully discussed in People v. Irving (95 N. Y. 541) ; People v. Tice (131 id. 651), and People v. Webster (139 id. 73, 84).
The extent to which the cross-examination of a party may be permitted is, of course, a matter of discretion with the trial court,
In the case under consideration, the defendant, upon his direct examination, had, in the most unequivocal manner, contradicted the evidence of various witnesses upon the part of the prosecution, tending to connect him with the offense charged in the indictment; and when asked upon his cross-examination if he was not living in open adultery with a female, although he had a wife from whom he had never obtained a divorce, instead of claiming his privilege, he, as we have seen, answered the question in the affirmative. This answer certainly tended to affect his moral character and consequently I do not see why it did not bear directly upon his credibility as a witness, and if so, why the evidence was not perfectly competent and proper.
The other reason to which reference has been made is one which at first glance would seem more serious, and yet it is one which upon mature reflection I am persuaded is not sufficient to justify this court in granting the defendant a new trial.
It appears that in opening the case to the jury, the learned attorney for- the prosecution, in rehearsing the facts which he expected to prove, 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.”
It is now contended that the statement objected to related to proof which the People claimed to possess of the commission by the defendant of independent crimes, which were irrelevant to the issue, and which, therefore, could in no view of the case become competent ; that by overruling this objection the court virtually intimated
If it be conceded that proof of this character would have been irrelevant and improper if offered on behalf of the People, it would still be exceedingly doubtful, in my opinion, whether the defendant’s exception possesses the merit claimed for it, for I am unable to see how, in the circumstances of the case, the ruling of the trial court can be regarded as prejudicial error. Suppose, by way of illustration, that the district attorney had called a witness and attempted to prove by him the facts stated in his opening, and the trial court had held, notwithstanding the defendant’s objection, that such proof was competent, would it be contended that, this ruling would involve error requiring a reversal of the judgment, if the district attorney, instead of acting upon it, had dismissed the witness, without insisting upon an answer to his inquiry % I hardly think so, and yet the implication that such evidence was competent would be quite as strong in the case suggested as in the case in hand. But just here the inquiry which naturally suggests itself is, why, in the peculiar circumstances of this case, would evidence of this character have been incompetent had it been offered ?
The indictment under which the defendant was tried charged him and his father, James Smith, who died before the present trial took place, with having set fire to certain buildings therein specifically mentioned, and it contained two counts, the first of which alleged facts constituting the crime of arson in the second degree, as defined by subdivision 3 of section 487 of the Penal Code; while the averments contained in the second count were obviously designed to bring the case within the provisions of subdivision 1 of section 488, which defines the crime of arson in the third degree, the-essential allegations of the second count being that the buildings in question were insured against loss or damage by fire, and that they were burned by the defendant and his father, “with the intent then and there unlawfully and feloniously to prejudice the insiorersthereof”
In other words, the defendant, although indicted for the crime of arson, pure and simple, also stood charged with the crime of having conspired with his father to cheat and defraud certain insurance companies by setting fire to and causing the destruction of various:
So, too, in cases where a party is charged with obtaining money under false pretenses, or with having received stolen property, knowing it to have been stolen, evidence that the accused had made similar representations to other parties, or had received similar articles under like circumstances, is always proper upon the question of evil motive or fraudulent intent. (Weyman v. People, 4 Hun, 511; People v. Jefferey, 82 id. 409 ; Copperman v. People, 56 N. Y. 591; Mayer v. People, 80 id. 364.)
The case of People v. Dimick (107 N. Y. 13-32) is in principle, if not in its facts, analogous to the one under consideration. There the crime alleged was larceny, and one of the counts of the indictment charged in substance that the defendant, with intent to deprive a marine insurance company, of which his firm was the agent, of .its property and to apportion the same to its own use, feloniously, falsely and fraudulently represented to the company that it had, through the firm, insured the cargo of a vessel for the sum of $5,000 for the benefit of some person unknown; that a loss had occurred whereby the insurance company had become liable to pay the amount of the insurance, and that in consequence of such representations the company paid over to the defendant the sum of $4,975. Upon the trial the People were allowed to give evidence, under objection and exception, that the defendant, during the same season in which the alleged crime was committed, had committed other similar frauds; and in considering the propriety of this character of evidence, it was said by Earl, J.: * * * Here it was necessary for the People
This court has had occasion to quote this language with approval in a very recent case (People v. Wicks, 11 App. Div. 539, 550), and I am unable to see why it is not equally applicable to the case in hand.
In a still more recent case it was held by the Court of Appeals that upon the trial of an indictment for subornation of perjury, where a conspiracy "was alleged, evidence of other transactions, otherwise material or relevant, was not inadmissible merely because it tended to prove another crime. (People v. Van Tassel, 156 N. Y. 561.)
While in the case of Wright v. People (1 N. Y. Crim. Rep. 462) the precise question which is here presented appears to have been decided adversely to the contention of the appellant’s counsel.
The record before us contains abundant evidence tending to show that the defendant, with his father, conspired to defraud certain insurance companies by obtaining from them insurance upon buildings to an amount far in excess of the value of the property insured, and that they thereafter set fire to and destroyed the property insured. Having made this proof, it is difficult to see why, within the principle of the cases cited, the People would not have been entitled to follow it with evidence of similar transactions occurring at other times within the same year, for the purpose of establishing the fraudulent intent of the defendant. And if so, the learned prosecuting attorney transgressed no rule of propriety in stating to the jury that he expected to make proof of these facts; nor did the learned trial judge commit any error in refusing to sustain the objection to such statement; for although he gave no reason for his ruling, it may be safely assumed that had evidence of this character
The judgment and order appealed from should be affirmed. .Judgment of conviction and order affirmed and judgment certified to County Court pursuant to section 547 of the Code of Criminal Procedure.
McLennan and Spring, J J., concurred. Dissenting memorandum by Hardin, P. J., in which Follett, J., concurred.