The defendant was indicted for wilfully and maliciously burning a building belonging to his two sons. The second count in the indictment charges an intent thereby to defraud the insurer. At the trial evidence was admitted in support of the indictment, against the defendant’s objection, tending to prove that the defendant set fire to the same mill a few nights before, and that the fire was then discovered and extinguished by a neighbor.
The evidence was competent on the question of the intent with which the defendant subsequently burned the building, and committed t he offence for which he was then tried. It was carefully limited to the single purpose for which it was competent. The unsuccessful attempt to do the same thing, a few days before, was evidence that the burning was wilful and intentional, and not the result of accident or negligence on the part of the defendant. It *45was sufficiently near to the time of the commission of the offence charged, to justify the inference that the defendant then had a settled purpose in regard to it. It is a rule of criminal law, that evidence tending to prove a similar but distinct offence, for the purpose of raising an inference or presumption that the accused committed the particular act with which he is charged, is not admissible. But there was no invasion of this rule in the admission of this evidence. The intent and disposition with which one does a particular act must be ascertained from his acts and declarations before and at the time; and when a previous act indicates an existing purpose, which from known rules of human conduct may fairly be presumed to continue and control the defendant in the doing of the act in question, it is admissible in evidence. In many cases it is the only way in which criminal intent can be proved; and the evidence is not to be rejected because it might also prove another crime against the defendant. The practical limit to its admission is, that it must be sufficiently significant in character, and sufficiently near in point of time, to afford a presumption that the element sought to be established existed at the time of the commission of the offence charged The limit is largely in the discretion of the judge, and no error in law is here apparent.
The case at bar is not distinguishable upon this point from Commonwealth v. McCarthy, 119 Mass. 354, where, on the question of intent, the government was permitted to show that the defendant a few days before set fire to a shed, ten feet distant from the building burned, and connected therewith by a flight of steps. The defendant in that case was the owner of the building burned, while in this case the defendant had conveyed the property to his sons subject to his mortgage, which was paid in part from the avails of the insurance upon it. It is sufficient that under the second count the jury in this case must have, found that the defendant wilfully burned the building with intent to injure the insurer, and this is enough whether he owned the building or not; and besides, the evidence was admissible without reference to the alleged intent to injure the insurer. See also Thayer v. Thayer, 101 Mass. 111.
The testimony of the defendant taken at the fire inquest was clearly admissible. It is objected “ that a judicial oath adminis*46tered when the mind is agitated and disturbed by a criminal charge, or by suspicion of crime, may prevent free and voluntary mental action.” But this objection, if there is anything in it, is not sustained as a matter of fact, for there is nothing in the case to show that he was, at the time his testimony was given, proceeded against criminally, or was then under suspicion of crime. The testimony was given voluntarily, and its weight must depend upon the circumstances under which it was given. Commonwealth v. King, 8 Gray, 501. Commonwealth v. Reynolds. 122 Mass. 454.
The defendant’s conversation with the insurance broker in January, in which he suggested that there should be an increase of insurance, taken in connection with his liability on the morfc gage note which the sons had agreed to assume, tended to show that he had a pecuniary interest in the insurance and a motive to commit the offence'charged. Commonwealth v. Hudson, 97 Mass. 565.
Exceptions overruled.