(dissenting):
Defendant was indicted jointly with his father James Smith for the crime of arson in the second degree by the grand jury of Monroe county in January, 1897. A motion was made to quash the indictment, which was denied, and a demurrer was interposed to the indictment and- overruled, and after the defendant had plead not guilty a trial was had in the County Court of Monroe county before •a jury, and a verdict of guilty was rendered. A motion for a new trial was made and denied. Defendant was sentenced to be imprisoned in the State prison at Auburn for the period of nine years, where he is now serving out his sentence. He appeals from the judgment of conviction and also from the order denying his motion for a new- trial, and gives notice of his intention to bring up for review the order overruling and disallowing the demurrer to the indictment, and also the order denying his motion to quash the indictment.
By the appeal book it appears that when the jury was completed the assistant district attorney, during his opening, said, viz.: “We shall show you, if permitted, that before this fire which occurred t 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. * * * ” Thereupon the counsel for the defendant “ objected as improper,” and thereupon the objection was overruled and an exception was taken. The assistant district attorney, who was opening the case to the jury, continued, “ if the counsel insists upon it, I will not go into that matter at this time.” When the objection was made to the statement made *287in the opening the court overruled the objection, thereby holding that it was proper that such a statement be made to the jury during the opening. The language used tended to indicate that the prosecution could prove that the defendant had been guilty of a similar crime to the one embraced in the indictment preceding the occasion of the fire mentioned in the indictment. It seems that the assistant district attorney, having obtained the ruling of the court in the presence of the jury that the statement so far as he had made it was proper, desisted himself from further statement, acting perhaps upon the consciousness that the statement he had already made was improper, although the court had, by its ruling, sustained the course adopted in referring to antecedent fires. The improper statement made by the assistant district attorney to the jury may have influenced them in the determination of the principal questions submitted to them at the close of the trial. To establish the defendant’s guilt the People resorted to circumstantial evidence with a view of establishing that there was a conspiracy between the defendant and several other parties to burn the buildings mentioned in the indictment with a view to obtain the insurance resting upon the buildings. Whether that conspiracy was established depended upon grouping the circumstances that were offered tending to support the allegation that there was a conspiracy. Confessedly the defendant was not at the place of the fire on the night of the fire. Instead, he was at the city of Rochester some distance from Greece where the buildings that were burned were located. Doubtless, the reference made to the alleged connection of the defendant with antecedent fires was the result of the zeal of the counsel in behalf of the prosecution. If the trial judge, instead of having sustained the irregular course adopted in the opening, had properly checked it, or when the objection was raised sustained it and thereby indicated to the jury that that part of the opening which was objected to was improper, it might not have had any impression upon the jury, but, under the circumstances, the judge, having overruled the objection, impliedly said in the presence of the jury that the statement made by counsel was proper, and the impression left upon the jury by the opening and by the ruling may have been prejudical to the rights of the defendant.
In the course of the opinion delivered in Halpern, v. Nassau *288Electric R. R. Co. (16 App. Div. 90) statements made by plaintiffs’ counsel to the jury of facts which had no support in the evidence and tended to inflame the minds of the jurors were not condemned by the court at the trial, and it was held that an error was committed ; that it was the duty of the trial court to prevent improper and immaterial matter from being presented to the jury. Near the close of the opinion in that case it was said that “ Possibly this decision may have a salutary influence in restraining the introduction by counsel in their summing up of matters not connected with the issues on trial to the end that the rights of parties litigant may be protected and not abused, and that juries may be limited to the consideration of evidence affecting the issues submitted to them, and to that evidence alone.”
If the conviction in this case be reversed, it may deter overzealous counsel for prosecutions from interjecting by way of opening, or otherwise, during the progress of a trial, matters irrelevant or improper.
Permitting improper matter to be presented to a jui;y during a trial was the subject of examination and condemnation in Griebel v. Rochester Printing Company (24 App. Div. 288).
Criminal trials should be conducted in accordance with the law and the rules of evidence, and extraneous matters calculated to prejudice the accused should be excluded. No speculation should be indulged in in respect to the extent of the injury done to the defendant by assertions in the presence of the jury, with the approbation of the court, of improper matters.
The objection made by the learned counsel for the defendant was improperly overruled, and the exception taken to such ruling presents an error which ought not to be disregarded.
The conviction, judgment and orders should be reversed and a new trial ordered in the County Court of Monroe county.
Follett, J., concurred.
Judgment of conviction and order affirmed, and judgment to be entered and certified to the County Court of Monroe county, pursuant to section 547 of the Code of Criminal Procedure.