I dissent from the judgment about to be pronounced in this case.
It is not charged that the defendant set the fire with his own hand. It is charged that Stein did the deed and that the defendant employed him to do it. The People, therefore, were called upon to prove the existence of a criminal agency. They could not do this persuasively or even intelligibly without proving the past relations between the defendant and the man who did his bidding. The crime charged in the indictment is the firing of Gold's house. The proof is that in November, 1910, the defendant told Stein there was a job for him. The job was to make this fire. It surely is not the law that the People could not go back of that day and hour to show the criminal agency in its genesis and its development. Men do not commonly approach each other on the street and offer jobs of that kind without preface or warning. "Mr. Grutz said that he had a job for me. I asked him where the job was. And he said to me, you know the man." The very terms in which the order was given presuppose some antecedent understanding. Its *Page 83 laconic phrases are equivocal, if not incredible, unless they are related back to some initial compact and some established course of dealing. The People were not required to leave the jury with the impression that suddenly, out of a clear sky, there came from the defendant the order to commit this crime. The jury had a right to know when and how and for what purposes these men had been associated in the past. Only through that knowledge could they judge of the verity of the charge that Stein in committing this crime was doing the defendant's bidding.
The People undertook, therefore, to exhibit the relation between the defendant and Stein in its origin and growth. The origin was in 1907, more than two years before the crime charged in this indictment. Stein, who was a painter, was employed to do some painting in the defendant's flat. A fire occurred there, and Stein was instructed by the defendant to say to the fire marshal that no one was in the house at the time. That fire was started by another man, one Titelbaum. More than a year later, in 1909, the defendant met Stein again and suggested that they work together. He said that there was money to be made in fires, and that there was no risk of detection. He referred to the fire in his own house, and said that no trouble had come of it. Thus tempted, Stein yielded. He set fire to the apartment of one Ledermann, and, afterwards, to many others. "You can go ahead," said the defendant, "and make fires, and there is money to be made here, and do not have any fear, and this is the easiest way to make money." They had entered on arson as a business. No other interpretation is possible of the words just quoted when read in the light of subsequent events. The defendant was an insurance broker. It was his part to supply the insurance policies. Stein was the workman. His part was to set the fires that would make the policies a source of profit. It is not necessary to show that the two men associated themselves as *Page 84 partners, in express terms, the defendant to procure the insurance, and Stein to burn the buildings as the defendant gave the word. Conspiracies are not usually formulated in that way. But the cumulative force of all their words and acts leaves no escape from the conclusion that there was a comprehensive plan between them to work in concert at the trade of arson, the defendant in command, and Stein his constant agent. The order to burn Gold's house, was, therefore, not an isolated and spontaneous and sudden solicitation to crime. It was a step in the consummation of a conspiracy. It was the last act of a continuing agency, with the defendant the master and Stein the servant.
To say that the People could not prove these things, that they were cabined and confined within the bounds of this isolated transaction, is to shut out from the consideration of the jury a body of truth most plainly helpful in reaching a right judgment. Only some overmastering principle or precedent should lead us to declare that our law of evidence withdraws from the jury these aids to a sound conclusion. I am persuaded that no such principle or precedent obstructs us here.
It is a mistake to say that in proving the course of dealing between the defendant and Stein, the People's effort was to demonstrate that because the defendant had committed other crimes, he was the kind of man that would be likely to commit this crime. (People v. Shea, 147 N.Y. 78; Makin v.Attorney-General, L.R. [App. Cas. 1894] 57, 64.) That they had no right to do, and that they did not attempt to do. They proved the course of dealing in order to establish the origin and scope of the agency, in a word to establish a conspiracy, and they did not lose the right to prove this because the result was to prove that other crimes had been committed. (Commonwealth v. Scott,123 Mass. 222, 234, 235; Commonwealth v. Blood,141 Mass. 571, 575.) The relation of agency between two men is sometimes the result of an express mandate. It is *Page 85 as often the product of a course of dealing. It is many times a composite of both factors. In criminal as in civil trials neither factor may be excluded. If at the first meeting between the defendant and Stein they had agreed in so many words that Stein would set fires whenever the defendant ordered them, the propriety of admitting such evidence would not, I think, be doubted by any one. Their conversation was not so explicit; it had, therefore, to be interpreted in the light of the events that followed; and so interpreted its meaning was no longer doubtful. The scope of a conspiracy may be made out, not merely by what is said in its inception, but also by what is done in its development. (Reg. v. Murphy, 8 C. P. 297.) When we view the totality of the acts, we perceive the nexus of the common scheme. The People were not restricted to proof of an employment the day before the fire. They were not restricted to proof of an employment in and through a single conversation. They could prove earlier conversations and leave it for the jury to say whether these earlier conversations, construed in the light of what was done under them, made out a general conspiracy. It is no sufficient answer to say that the first fire in the defendant's house was started by some one else. That fire was referred to merely to explain the defendant's mention of it when employing Stein to set the fire at Ledermann's. In this there was no error, and certainly none that could have affected the result. When once it is conceded, however, that the initial conspiracy might be proved, it is impossible to uphold the conclusion that later instances of its renewal should have been omitted. If the People had the right to prove how the criminal agency began, they must have had the right to prove the perpetuation of that agency during the intervening years. If it was lawful to prove a criminal compact once, it did not become unlawful to prove that it was reaffirmed a dozen times. Indeed, it might well have been argued that a conspiracy formed in 1909 was too *Page 86 remote in the absence of evidence that it was kept alive as a continuing relation. To that single end the People's evidence was directed.
It would be useless to prolong the discussion by the analysis of the cases. The leading authorities are well known. The doubt is in their application. One case, however, I may refer to as supporting my own view. It goes farther perhaps than we are required to go here, for there the separate crimes were not so closely welded together by proof of an agreement unifying them in their origin. It is the case of People v. McLaughlin (2 App. Div. 419;150 N.Y. 365). McLaughlin, a police captain, was charged with extortion. The charge was that he had collected the money through an agent, Burns. To confirm this, the People offered evidence that Burns had acted as the defendant's agent in many similar cases, and that there was a general scheme by which, through this division of labor, they were to practice extortion in their precinct. At the Appellate Division it was held by a unanimous court that the evidence was proper. WILLIAMS, J., writing for the court said (p. 433):
"The evidence here was given, not for the purpose of raising a presumption that the defendant committed this crime because he had, before this, been guilty of other crimes of a like nature. The prosecution sought to prove such agency of Burns. They could not be expected to do this by direct evidence. They must prove it, if at all, by circumstantial evidence; and this might properly be done by giving any proof that tended to establish such criminal agency, notwithstanding the evidence given also tended to prove other distinct crimes to have been committed by the defendant through the agency of Burns. The only question is whether the evidence received of these prior transactions was competent and proper as circumstantial evidence tending to establish the fact sought to be proved. The rules of evidence are the same in criminal cases as in civil cases, except as otherwise *Page 87 provided in the Code of Criminal Procedure (§ 392). It is common in civil cases to establish agency by showing the relations of the parties in other transactions than the one in issue in the case on trial, by showing other transactions relating to the same business and extending over months and years when the parties held the relations of principal and agent, and we see no reason why the same rule of evidence may not be applied in this case. The suggestions made by the learned trial judge in his charge upon this subject, and explaining the purpose for which this evidence was received, seem to us to have been proper and correct. The evidence given tended to show that these men occupied the same official relations to each other during the years 1888, 1889, 1890 and 1891, prior to the alleged commission of this crime, and that they were engaged in this same general scheme of extortion, Burns acting under the advice, commands and procurement of the defendant, apparently in pursuance of such general scheme, and that the defendant, in conversations had with him, practically conceded such agency in such prior transactions. We have no doubt but that the evidence of the transactions themselves were competent in connection with the conversations so testified to, as tending to establish the agency of Burns for the defendant in the commission of the crime for which the defendant was being tried."
When the case of People v. McLaughlin reached this court, it was reversed on other grounds. The opinion of MARTIN, J., does, it is true, contain a discussion of this subject. "The charge of the learned trial judge," he says, "seems to indicate that he entertained the opinion that what he denominated `criminal agency' could be established in the same way, and by the same species of evidence, as may be employed in a civil action to establish the relation of principal and agent in favor of third persons. We think no such rule exists. We find no principle of criminal law which recognizes the relation of *Page 88 principal and agent in the sense in which the term is used in reference to business or commercial transactions. It is true that in civil actions upon contract, the course of dealing between parties may be proved to establish a general agency, but that principle has no place in criminal jurisprudence. From such evidence in civil actions a presumption is raised that the relation shown to exist in other transactions continues, or an estoppel is created which prevents the principal from denying the agency, and hence is presumptive or conclusive evidence of that fact. No such presumption or estoppel arises in a criminal case. There the presumption is of innocence, and the doctrine of estoppel has no application." (p. 391.)
A majority of the court did not concur in holding that proof of similar transactions was inadmissible in such conditions. ANDREWS, Ch. J., BARTLETT and VANN, JJ., expressed no opinion on that point, and GRAY, J., dissented. We are thus left free to reach our own conclusion, unfettered by any adverse precedent.
There is no difference between civil and criminal trials in respect of the kind of evidence available to make out a criminal agency, which is merely another word for a criminal conspiracy. The agency that will subject the employer to criminal liability must, of course, be an actual agency, i.e., the agent's authority must be actual and not merely apparent. An agency by estoppel will not suffice. But an actual agency may be established by proof of what men have done as well as by proof of what they have said. (Blake v. Albion Life Assur. Society, L.R. [4 C.P.D.] 94, 109, 110; U.S. v. Cole, 5 McLean, 513, 601; Martin v. Niagara Falls Paper Mfg. Co., 122 N.Y. 165,175; Hanover Bank v. Am. Dock Trust Co., 148 N.Y. 612, 621,623; Martin v. Webb, 110 U.S. 7.) The same kind of evidence that will tend to sustain an inference of actual agency in civil trials will tend to sustain it in criminal trials. The same kind of evidence admissible to prove conspiracy in the *Page 89 one instance is admissible in the other. Truth is the same whether we seek it at the civil or at the criminal bar, and it is apprehended in subjection to the same laws of logic. The criminal law is not to be treated as a thing apart and by itself. The command of the statute is that "the rules of evidence in civil cases are applicable also in criminal cases, except as otherwise provided in this Code." (Code of Criminal Procedure, sec. 392.) The same rule prevails in England, and eminent judges have deplored the fact that it is sometimes overlooked. (King v.Rodley, L.R. [3 K.B. 1913] 468, 472.) It is not an adequate answer to say that in criminal prosecutions there is the presumption of innocence. That presumption does not destroy the efficacy of circumstantial proof, In the language of the court inDunlop v. U.S. (165 U.S. 486, 502): "If it were broadly true that the presumption of innocence overrides every other presumption, except those of sanity and knowledge of the law, it would be impossible to convict in any case upon circumstantial evidence, since the gist of such evidence is that certain facts may be inferred or presumed from proof of other facts." In criminal as in civil causes it is legitimate to argue back from individual acts to a scheme that underlies them. The true rule was tersely stated by BEST, J., in King v. Burdett (4 B. Ald. 95, 121, 122): "It has been said that there is to be no presumption in criminal cases. Nothing is so dangerous as stating general abstract principles. We are not to presume without proof. We are not to imagine guilt, where there is no evidence to raise the presumption. But when one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen as well in criminal as in civil cases. * * * If the rules of evidence prescribe the best course to get at truth, they must be and are the same in all cases, and in all civilized countries. There is scarcely a criminal case, from the highest down to the lowest, in which courts of justice do *Page 90 not act upon this principle." Evidence of sufficient weight to make out an agency in civil trials may lack the weight essential to a conviction in criminal trials; but evidence is not incompetent because, standing alone, it is inadequate. "It may be that a piece of evidence admissible in either class of cases, may not be sufficient in a criminal case, that is, without further evidence; but the evidence is not the less admissible." (GROVE, J., in Reg. v. Mallory, 15 Cox Cr. 460; quoted in Wigmore on Ev. 1, sec. 4.) Subject to the qualification that the conclusion is to be established with greater certainty in respect of crimes, the process of inference, regardless of the subject of the controversy, remains the same.
I think that the evidence of the past relations between Stein and the defendant was properly received.
Other rulings have been complained of, but if they involve technical error, they are not sufficiently substantial to affect the justice of the verdict. (Code Crim. Pro. sec. 542.)
The judgment of conviction should be affirmed.
WILLARD BARTLETT, Ch. J., HISCOCK and COLLIN, JJ., concur with WERNER, J.; CUDDEBACK and MILLER, JJ., concur with CARDOZO, J.
Judgment of conviction reversed, etc.