By the Court,
The refusal of the court to direct an acquittal of the defendant was manifestly right. It was unnecessary to state in the indictment the names of the jurors by whom it was found. This was expresly decided in the case of The People agt. Bennett, (37 N. Y., 117). The second objection urged, that the indictment omits to charge that the setting fire to the building was wilfully done, was not well founded in fact. It was charged that Haynes “ unlawfully, maliciously, and feloniously in the night time, did set fire to a certain gristmill.” This language is equivalent to a charge that the act was wilfully done. It is in point of fact, a charge, that it was designed, intended, hence wilfull. The third ground of objection is also untenable. The charge is that the defendant set fire to a certain grist-mill, then and there being, owned by and in possession of one Frederick Whittlesey.” This was sufficient to meet the requirements of the statute as regards the crime of arson in the third degree,
The case was plainly one for the jury on the evidence. It would have been manifestly improper to have taken it from them on any of the' grounds urged. It is true the only evidence to establish the guilt of the party, was the uncorroborated testimony of a confederate in the crime. But whatever opinion the court may have entertained in regard to the integrity and reliability of the witness, the question of guilt or innocence was for the jury. The witness was not incompetent to testify because an accomplice, such admitted fact affected her “credibility only, and it was for the jury to say, whether her statement was credible and a safe reliance for a verdict against the party charged. Such is now the settled rule in this state, even where the accomplice stands entirely uncorroborated. Mr. Justice Beardsley remarked in The People agt. Costello, (1 Denio, 83), that “ although it had often been said by judges and elementary writers, that no person should be convicted on the testimony of an accomplice, unless corroborated by other evidence, still there is no such inflexible rule of law.' It is a question for the jury, who are to pass upon the credibility of an accomplice, as they must upon every other witness.” He adds, “his statements are to be received with great caution and the court should always so advise; but after all, if his testimony carries conviction to the mind of the jurv and they are fully convinced of its truth, they should give the same effect to such testimony as should be allowed to that of an unimpeached witness, who is in no respect implicated in the offense.” This language of Mr. Justice Beardsley was quoted with approval in Haskins agt. The People, (16 N. Y., 344-352). Judge Comstock said in The People agt. Doyle, (21 N. Y., 578-9,) “ there is no rule of law which prevents a conviction on the testimony of an accomplice alone. The utmost caution should undoubtedly be exercised; but juries are nevertheless at liberty to con
To the same effect are the remarks of Mr. Justice Ingraham, in Dunn agt. The People, (5 Park. Cr. R., 120; see also 1 Greenleaf on Ev., § 380, 381.) But notwithstanding the jury may convict on the unsupported testimony of an accomplice, yet it is, as remarked by Mr. G-reenleaf, so generally the practice on the trial, for the court to advise an acquittal, in the absence of corroborating proofs, that its omission would be regarded as an omission of duty on the part of the judge; and the same learned writer on the law of evidence adds that, so great respect is always paid by the jury to such advice from the bench, that it may be regarded as the settled course of practice, not to convict in any case of felony upon the sole and uncorroborated testimony of an accomplice.
It is a well settled rule, not to be departed from in criminal cases especially, that no issue shall be decided against a citizen without testimony equivalent at least, to that of one credible witness. Therefore, verdicts rendered on the testimony of confederates, wholly uncorroborated, are of doubtful propriety, and will not in general be allowed to stand, if the witness be otherwise at all impeached.
It was the manifest duty of the jury in this case, to scan the testimony of Mrs. Bronk with the utmost severity. In addition to the fact that she admitted herself to be a felon, she was shown to be unblushing in her immoralities and notoriously untruthful; while several witnesses testified to the contrary, not one of the eleven, who spoke to her general character, gave the opinion that she was then a credible and reliable person. She was also contradicted in her statements, given as a witness, on the stand. Nor does her story commend itself to the fullest credence by reason of its inherent probability. It is difficult, if not impossible, to find a motive for the crime. There was no ill-feeling existing between the defendant and Whittlesey, the owner of the
Now, in this condition of the case, the jury must have been in some doubt, some perplexity as to the propriety of convicting on the testimony of this confederate. They are pesumed to have been warned by the court of the danger attending a conviction on testimony from a source confessedly corrupt. They doubtless examined the evidence with great care, as they had been instructed, and were bound to do, considering every minute
Mrs. Bronk testified that the defendant promised her four hundred dollars if she would burn the mill; which sum would buy for her a place she desired to purchase. It seems that the place was owned by Westfall, for whom Stevens was agent.
She further testified that soon after the fire, Stevens called on her and inquired if she wanted the place; whereupon she went to the defendant at the paper-mill, and obtained from him forty dollars,—four ten dollar bills; that she paid Stevens ten dollars, and afterwards went to Quaker street, to complete the transaction, and then paid the balance of the money, thirty dollars, to Westfall. Stevens was called and testified that Mrs. Bronk gave him ten dollars, a ten dollar bill, to bind the bargain for the place; then arranged with him to meet him'at Quaker street to complete the transaction for the property; and that they met at Quaker street, pursuant to the arrangement; and then she paid three ten dollar bills to Westfall’s agent. All and every part of this evidence was admitted against the defendant’s objection. If the evidence tended to corroborate Mrs. Bronk in any material part of her testimony it was properly admitted, otherwise its admission was error inasmuch as it was urged upon the consideration of the jury as matter of corroboration, and doubtless, to a greater or less extent influenced their verdict. Unquestionably this evidence tended to prove that Mrs. Bronk told the truth in several particulars. But that alone was not sufficient to authorize
The remaining evidence introduced with a view to corroboration, that she arranged to meet a third person at Quaker street to close the arrangement for the place, and that she in fact paid similar money to that, she said she received from the defendant to third persons was clearly remote and irrelevant to the issue. This evidence was improperly admitted; and it was of a character, as the case stood before the jury, likely to affect their verdict. ■ Its admission was therefore error.
It is also insisted that evidence bearing on the question
Counter evidence was given on the part of the people by five witnesses, who testified that they were acquainted with her character, and that they would prior to the fire and to her arrest have believed her on oath.
On cross-examination of two of these witnesses, the defendant’s counsel sought to show that her character at the time she testifid was bad, and that they would not then believe her on oath. This evidence was objected to : 1st. On the ground that the inquiry should be limited to what her character was before the fire: Sd. That the number of impeaching witnesses had been limited by the court to six on a side, and that the defendant had exhausted his full compliment. The objection was sustained and the evidence excluded. If excluded on the first ground of objection it was manifest error. The jury were to determine the credibility of the witness at the time she testified. The question for them was, whether she was then at the time she spoke, a truthful and reliable witness. It was competent for the district attorney to fix the limit of his inquiry at some prior period, but the point to be reached by the proof, was for all that, her standing for truth and veracity at the time she testified. As was said in Willard agt. Goodnough, (30 Vt. 397,) it is practicably impossible to limit the scope of the answer to "any particular period. The testimony when given under such a question, will bear more or less strongly upon the present character of the impeached witness, according as it fixes the existence of the bad character at a more or less recent point of time. ***** The present character is the point in issue. What the character
So it might be argued that if Mrs. Bronk was a person whose statements upon oath were to be credited before the commission of the felony, she" was still under the circumstances of the case at the time of testifying, also to be credited. In Sleeper agt Van Middlesworth, (4 Denio 431), Judge Beardsley remarked that the law indulged a strong presumption against any sudden change in the "moral as well as in the mental and social condition of man—that a state oí mind once proved to exist, is presumed to remain unchanged till the contrary appears. How the district attorney proved Mrs. Bronk to be a credible person in the opinion of the witnesses, prior to the fire and rested, as well, he might according to Judge Beardsley, on the presumption which such opinion supported. The defendant then had a right to meet and overthrow this presumption by inquiring of the witnesses, on cross-examitation, whether they would then believe her upon oath. If they would not, the argument and inference in favor of her credibility based on her former standing in community, were effectually overcome. And if they would still deem her credible, considering her present general character, and her sworn admission of guilt, such fact was important with a view to test the value of their own opinion favorable to Mrs. Bronks integrity as a witness given on their direct examination. It is plain I think, that this was a proper subject of inquiry on cross-examination of witnesses, who had spoken to her credibility at a period long anterior to the trial.
But it is to be presumed that the evidence was excluded on the ground of objection, secondly stated, to wit, that the number of impeaching witnesses had been limited to six on a side. It was undoubtedly competent for the court to
Give the ruling the effect claimed for it, and it would deprive the party against whom the witness was called, of a substantial right, a right to test the capacity, integrity and means of knowledge possessed by the witness by a cross-examination. The defendant was, therefore, entitled to the same right of cross-examination as if no ruling had been made in regard to the number of witnesses on the subject of impeachment, otherwise the limitation would be itself improper, inasmuch as it would deprive the party against whom the witness was called, of a right always deemed of the utmost consequence, a right of full and searching cross-examination. In my judgment, the cross-examination was here improperly abridged. In conclusion it may be remarked that when a case is sought to be established by the testimony of an accomplice who stands in the main, if not wholly uncorroborated, it is due to the party accused and to the cause of justice that none but evidence clearly admissible under the severest test should be allowed, and that none in the least bearing on the question of credibility, and admissible should be excluded. Mr. • Justice Beardsley well remarked in The People agt. White, (14 Wend., 114,) that u when the case is one of delicacy and importance and the evidence is nicely balanced, and the scale liable to be affected by slight circumstances, the court will be exceedingly vigilant in preventing any extraneous or irrelevant matter from being brought before