People v. Fanshawe

The great number of questions presented by the defendant, appellant, including among others the contention that the verdict was against the law and against the evidence, and that the indictment itself was materially defective, will necessitate not only an examination of the latter, but also a review of all the evidence in the voluminous record presented.

At the outset a statement of the facts proven will be necessary in order to make a disposition of the motion made by counsel for defendant at the close of the case for the prosecution to direct a verdict of acquittal upon the ground stated, “ that where it appears beyond all reasonable doubt that the object of firing, setting fire to the premises, burning a building under circumstañces which show beyond a reasonable doubt that there was no attempt to destroy it,” is not arson in the first degree as defined by law. The authority for a motion of this kind is said to be section 410 of the Code of Criminal Procedure, which provides that “ if at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant, and they must follow the advice.” That no injustice may be done the prisoner by summarizing the evidence ourselves, or taking the version presented by the district attorney as to what the evidence for the prosecution showed, we will confine ourselves to what, according to the counsel for the prisoner, such testimony proved to be the facts presented upon the trial in support of the indictment.

Early in the morning of the 3d day of February, 1888, between the hours of two and three o’clock in the

The entrance- to the premises was on Twenty-ninth street, and it was the custom to leave the door on the latch. It was not a Yale latch, but an old-fashioned, ordinary latch—a simple lock. Some time prior to the fire, the policeman on the beat found the door open, and notified the landlady. Defendant, a young man of about twenty-nine years of age, was employed at the time as a clerk in the Knickerbocker Eire Insurance Company.

The defendant had effected two insurances upon his personal effects, wearing apparel, jewelry, etc., one for $1000 in the company in which he was employed, and one of $1000 in the Phoenix Eire Insurance Company. It appears that the companies did not charge any greater rate of premium for insuring $1000 than for any sum under $1000.

On the morning, and at about nine o’clock, on which the fire occurred, as the defendant was going out, he was called into Miss Yan Duzer’s room, which was on the ground-floor, and was there confronted by Miss Yan Duzer and Mrs. Lizzie S. Courtney, one of the lodgers in the house, and upon the defendant expressing his regret that Miss Yan Duzer should have been put to any loss, Mrs. Courtney said to him : “ Mr. Fanshawe, the only way you can do anything for Miss Yan Duzer is to make good what you have destroyed.” Whereupon the de

The adjuster of the insurance companies, Mr. James W. Stevens, after an examination of the debris, estimated the sound value of everything of which he could find a trace at $261.25, but on the night of the fire the trunk was thrown out of the window, and the examination upon which Mr. Stevens based his estimate of the sound value was not made until the tenth day of February, 1888, and the premises had been meantime in the possession of the landlady, and were accessible not only to all the lodgers, but were visited by workmen engaged in repairing the damage done by the fire; and it appears that the only experience Mr. Stevens had as to the value of clothing, wearing apparel, and personal effects prior to his engaging in the business of insurance adjuster was that derived from keeping a country store in Staten Island, and that, although the defendant had furnished him with the bills of goods which he claimed were destroyed, with the tradesmen’s names, he never took any steps to ascertain whether those goods were really furnished him or not. Subsequently, and in May, 1888, the insurance companies settled the loss by paying $350 to Mr. James M. Lyddy, at that time counsel for the defendant, and to whom the policies had been assigned.

Some of the lodgers, notably Mrs. Courtney, testified that the defendant was fully dressed, and this may well have been, since the witness testified that at the time she thus described his appearance it was five o’clock in the morning, and since the fire took place between two and

We do not understand that the appellant contends that this evidence was not. sufficient to justify the conclusion that the firing of the house was done by him; the claim being, as we take it, that such evidence showed that the motive actuating the prisoner was a desire to defraud the insurance company, and that the evidence did not show beyond a reasonable doubt that it was done with an intent to destroy the building, and, therefore, that it did not support the indictment, for arson in the first degree, but only sustained one for arson in the third degree ; and as the law would not permit a conviction of the latter offense upon an indictment charging arson in the first degree, that the appellant was entitled to have the motion for an acquittal granted (Dedieu v. People, 22 N. Y. 178 ). With respect to the error thus assigned in the refusal of the learned recorder to adopt appellant’s view of the law of arson, we are confronted with the principal and oft-reiterated ground relied upon for a reversal of the judgment, and it is proper that the question thus presented should be here disposed of.

Sections 486, 487, and 488 define arson in its three

Had we to deal exclusively with these sections of the Penal Code, no doubt would arise but that the view taken by the learned recorder, which was consistently adhered to throughout the trial, was correct, that to establish the crime of arson it was necessary to charge the prisoner with, and to establish by competent evidence, “ that the defendant willfully, that is intentionally, did burn or set on fire in the night-time the premises described in the indictment; and, second, that the premises at the time of burning or setting the same on fire were a dwelling-house in which at said time there was a human being.” Both these questions, he charged, should be answered in the affirmative before the defendant could be convicted of. the crime charged.

The appellant insists that the Penal Code, by section 490, has added another element which the trial judge deliberately ignored and refused to consider as in any way qualifying or destroying the definition of arson as given in sections 486 and 488. This section 490 provides that “ the burning of a building under circumstances which show beyond a reasonable doubt that there was no intent to destroy it is not arson.” It is claimed by the appellant that this section 490 is to be construed as though its language were in fact incorporated in sec

There can be no room for discússion, if a conclusion is reached that section 490 introduces another constituent element of the crime of arson, in addition to those contained in the definition to be found in sections 486 and 488, and then this judgment must be reversed, for the reason that it is a well settled rule of criminal pleading that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offense ; and that if the “intent to destroy the building ” be an absolute prerequisite, it would be necessary to set forth such intent in the indictment itself, and upon the trial to present competent evidence to establish such intent. As stated by the court in 1 Parker, 564 : “We deem the rule well settled that every fact or circumstance which is a necessary ingredient of the offense should be averred in the indictment. If any fact which is a material ingredient to constitute the crime is omitted in the indictment, such omission vitiates it, and the defendant may avail himself of such defect by demurrer, writ of error, or on a motion in arrest of judgment.”

Section 486 of the Penal Code, defining arson in the first degree, is a practical re-enactment of the provisions of the Revised Statutes, (2 R. S. 657, 1st Ed., part 4, chap. 1, title 1, sec. 9) and prior thereto the law declared “ that any person who shall be duly convicted of willfully burning any inhabited dwelling-house shall suffer death ” (Rev. of 1813, p. 407). In construing' “the act declaring the punishment of certain crimes (Rev. of 1813, p. 407) in the case of People v. Butler ( 16 Johns. 203 ), which arose in 1813, the court in the course of the opinion said: “ It is well settled that to constitute the crime of arson it is not necessary that the house should be absolutely consumed or burned. It is enough if the fire is applied with a malicious intent so as to take effect, though only a part is consumed.” In People v. Jones (2 Edm. Select Cas. 86), which arose under the Revised Statutes in 1849—a case relied upon by the trial judge below—Edmonds, J., in charging the jury, says: “ When it was clearly made out, as it was here, that the fire in the house was willfully done, it was of no consequence what was the motive for or intention of the act; nor was it even necessary to prove that the prisoner knew that the building was inhabited. The fact that it was so was all that the law required to be made out. The motive of the prisoner, then, for

In addition to the statutes and the decisions construing them since 1813, at least in this state, it has never been held necessary in order to establish the crime of arson—nor was it necessary to constitute arson at common law-—to prove that there was an intent to destroy the entire building; nor was it necessary to show that it was wholly consumed all that was essential was to establish that it was willfully burned; this being subsequently enlarged by the Revised Statutes, which added the words “ set on fire ” and framed the statutory definition in practically its present form, so that the crime would thus consist either in willfully burning or setting on fire a building. Were it of any advantage, we might .-show, in addition to the statutes, and the long line of .-authorities, that all the text-writers, in discussing what -constituted arson, agree substantially with the definition given by Russell on Crimes (vol. 2, p. 1024), wherein it is said: “ The burning of a house necessary to constitute arson at common law must be an actual 'burning of the whole or some part of the house, . . . but it is not necessary that every part of the house should be wholly consumed or that the fire should have any continuance; and the offense will be complete though the fire should be put out, or go out of itself.” (See also Roscoe’s Criminal Evidence, 8th Ed., p. 407 ; Wharton's Criminal Law, § 826.)

A strong argument is thus furnished against the contention of the appellant, growing out of the fact that if the effect claimed by him is given to section 490, it will -abrogate and destroy all statutory and well-settled authoritative definitions of the crime of arson.

Such a radical change is not to be presumed or inferred from some statutory provision unless its meaning and bearing are so direct and plain as to leave no

Applying these well-known rules of interpretation to. the section here involved, and having regard to what was intended by the legislature in enacting section 490, at the time of the adoption of the Penal Code, we think it hardly conceivable that it was its intention or purpose to radically change the definition of. the crime of arson as it existed in this state since the year 1813, at least, and down to the time of the adoption of the Penal Code in 1881.

That some support is to be found for the view that section 490 should be given the sweeping effect claimed for it by the appellant is undoubted. We have the old case of People v. Cotteral ( 18 Johns. 115 ), decided in 1820, which, in construing the law already referred to which existed in this state at that time, held in a case where prisoners took hot coal from the fire and burned a hole in the wood-work of the jail for the purpose of' facilitating their escape, and notwithstanding the efforts to put out the fire the building was burned, though not totally destroyed, that the prisoners were not guilty of arson because there was wanting the intent to destroy the building.

With respect to this decision, all that need be said is that it has not been followed in this state; and, as already shown, the definition of arson was changed by the Bevised Statutes by adding thereto the words “ set on fire,” which made it clear that the legislature intended that the views expressed 'in that case by the judge in respect to its being necessary to have an intent to destroy the building present were not to be the law of this state. This authority may be regarded, therefore, as obsolete, because, though it was in one or two instances followed by other states, it was finally repudiated by all, so far as our examination shows. Neither has it been accepted as a correct statement of the law

It can never be presumed that the legislature intends an unwise or injurious result to flow from its action; and where two constructions can be given to a statute, that one, other things being equal, should be given which would negative the charge of unwise and injurious legislation. It cannot be that the legislature intended to show undue leniency to, or to throw any safeguards around, those who in the dead of night would set on fire a building or dwelling inhabited by families, and where this was done deliberately and intentionally, with a view of obtaining gain or profit by way of insurance, that, because it was not coupled with proof showing an intention to burn the entire building, the criminal should go unwhipped of justice. The crime of arson has always been justly regarded as one of the greatest and most heinous offenses, and one which merits least consideration and the greatest punishment. In our large cities numberless families are at times compelled to huddle together, and it would be a serious mistake for the legislature to allow a malefactor who willfully and intentionally set on fire such a dwelling-house to escape because his motive or intent was not to destroy the whole building, but only sufficient thereof to obtain insurance which may have been placed upon furniture in one of the apartments thereof. That was exactly the attitude of the prisoner here. " There can be no doubt, upon the •evidence, that he set fire to the house, having kindled a fire in five separate places. Hus motive was to secure the fruits of the policies of insurance which he, a few

If we were to apply, in the absence of any statute, the rule that one must necessarily intend the consequence of his acts, the intent could readily be divined from the act itself. This is, moreover, a rule of criminal evidence, that “ a man is presumed to intend the natural, necessary, and even probable consequences of what he intentionally does ” (1 Bishop on Criminal Law, 7th Ed., § 734). If therefore, an attempt to destroy the building needed' to be present, it would have been necessarily implied from the character of the criminal act and the rule of criminal evidence just cited.

The appellant insists, however, that section 490 is part of the definition of what constitutes the crime of arson in the first degree, and, therefore, the indictment should have alleged the intent, and the evidence on the part of the prosecution should have gone to the extent of proving beyond a reasonable doubt that the prisoner had the intent, at-the time he willfully set fire to the dwelling, of destroying it. It may be here remarked parenthetically that the word “ it ” in the last sentence of section 490 under the authorities must be construed to mean, not only the entire building, but “ any part of it,” the whole being put for a part under a figure of speech.

With respect to this contention we think there are

The second, and we think the more reasonable view, which also renders harmonious the entire legislation, is that this section 490 has reference to another and distinct class of crimes—namely, non-willful as distinguished from willful acts, which latter are the ones included in the other sections defining arson in its various degrees. This construction is enforced when we remember that in the prior sections the essential words are the willful setting on fire, which are omitted in section 490 ; thus showing that this section must refer to a different class of burnings from those covered by the prior sections,

If a painter, engaged in repainting a dwelling-house, for the purpose of removing paint from a door or other portion of the house, should apply alcohol or benzine with a view to burning off the old paint, and which, without any intention on his part, resulted in a destruction of the building, it would have been at common law, and under our statutes prior to the Penal Code, and now under section 490, a good defence, in pleading to an indictment and upon a trial for arson, to have shown that the act charged as a crime was the result of carelessness, or that, though the act of burning may have been willful, it was not the result of a design to destroy the building ; .which is well illustrated by the instance just given of the painter, who, though he had willfully applied fire to a portion of the building, had no intention of destroying the whole or any portion thereof. Such a plea, established by evidence beyond reasonable doubt, would be a perfect answer to the crime charged, against one who technically may have brought himself within the letter of the definition. The section thus viewed would.be but declaratory of the common law.

We think, therefore, that section 490 should not be so construed as to give to the crime of arson a new definition or make it depend, not upon the willful burning or setting on fire of a building, but on the presence or absence of an intent to destroy it at the time it was set on fire. The indictment having been drawn in the language of section 486, defining the crime of arson, we think it was a' sufficient specification of the crime. Upon the trial of such an indictment, section 490 was available to a defendant in the event that he could produce evidence tending to show that there was no intention to destroy the building; upon which, if clearly made

This construction of section 490 was the one given by the learned recorder, and the one contended for by the people upon this appeal, and which, it seems to us, brings it in harmony with the preceding sections. Thus taken together they constitute a complete declaration of the law of arson as applied, first, to willful acts of burning and setting on fire of buildings (sections 486, 487, 488), and, in section 490, to non-willful acts resulting in such burning. Such a construction, moreover, disposes of the contention of appellant that the presence of a motive other than the destruction of the building relieves one who willfully sets on fire a building from criminal liability under an indictment for arson in the first degree.

It will be noticed that the learned recorder was consistent in the view he took as to this construction of section 490, if we examine his charge, which was entirely fair and impartial, and the requests submitted by the defendant, which, in respect to the effect to be given to section 490, were made conformable to such construction by his amendments thereto. The view contended for by the appellant was presented by his sixth request—which was refused—to the effect that “ if the jury shall find that the burning of the building was for any other purpose or intent, beyond a reasonable doubt, than to destroy the building, then it is not arson, and no conviction can be had under this indictment.” The construction, on the other hand, given to the section by the recorder is to be found in the amendments to the fourth, fifth and seventh requests of the defendant. The fourth request asked that “ if the jury find, from all the evidence, beyond a reasonable doubt, that there was no intent to destroy by burning the building, . . . then the act of burning is not arson, and the defendant should be acquitted.” This request was charged in the following

We think that in the amended form the requests were presented as favorably to the prisoner as the law required or demanded, and that the refusal to charge the sixth request in the form in which it was presented was not error.

Nor do we think that any exception will lie to the answer which was given by the recorder, in response to the question propounded by the jury during the course of their deliberations—viz., “ That if they [the jury] find that the defendant set fire for the purpose of obtaining the insurance only, can they find him guilty of the offense?” It is insisted that this question demanded a categorical answer, or, as claimed by appellant’s counsel, that it was the duty of the recorder to read section 490 in answer thereto. In our view, it would have been proper for the court to have answered the question cat

Besides this principal one, many subsidiary questions have been pressed upon our attention, some of which it is necessary briefly to refer to. In this connection it may serve the purpose of clearness if we classify these other errors assigned and consider them in the order in which they respectively arise, taking up, first, those which relate to the indictment; second, the question relating to the qualification of one of the jurors ; third, exceptions to the admissibility of evidence; and fourth, exceptions to the judge’s charge other than those already noticed.

First. The indictment contained two counts, in one of which the defendant and appellant is charged with feloniously, willfully and maliciously having set fire to the dwelling-house of one Ellen R. Van Duzer, in the Twenty-first ward, city of Hew York.” The other count of the indictment charges the defendant with having set fire to the dwelling-house of Frank B. Doughty, at the ward, city and county aforesaid. The complaint of the indictment was threefold: (a) In not setting forth, as provided by section 490, facts and circumstances showing an intent to destroy the building— which we have already discussed and disposed of.

(c) The failure of the court to compel the district attorney to elect between these two separate and distinct crimes. What we have, already said with respect to the indictment itself is equally applicable to this objection. If two crimes had been charged, it would be an undoubted right to have compelled an election; but as there was but one and the same offense charged by a joinder of two counts stating the same offense distinctly and separately, the motion to compel the district attorney to elect was properly denied.

Second. The exception relating to the qualification of the juror Whiting. This juror, after a very thorough examination, was challenged by the people, which was sustained by the court, and an exception taken to the ruling. The law in regard to reviewing such ruling is thus stated in the case of People v. McQuade ( 110 N. Y.

“ By the court: Q. What do you mean that it would have to be very precise and exact ? A. Well, before I would convict a man of arson in the first degree, the evidence would have to be such that there would be no doubt whatever in my mind—very precise and exact.

“ Q. Bo you mean to say no reasonable doubt or no doubt whatever ? A. Ho doubt at all.

“ Q. You would include every doubt ? A. Yes, sir.

“ Q. Seasonable and unreasonable ? A. It depends entirely on the evidence.”

And finally, in answer to the question of the court, as follows : “ Q. And suppose the court was further to instruct you that if all the circumstances, as they were developed by the evidence in the case, pointed in one direction, beyond a reasonable doubt, and that was towards the guilt of the accused, and if it did, it was to be received and treated in the same way as you would treat

These extracts, we think, show that the mind of this juror was not in the condition to be guided, as he should have been, by the law as it was to be laid down by the court, to which, if erroneous, an exception could be taken and any injury done remedied by an appeal; but with respect to a juror who would follow his own view, regardless of the instructions of the court, there would be no means of correcting the injury or harm that it might do, whether it was to the prisoner or to the people, by disregarding the law as laid down by the court. This he expressly stated he would do if the court instructed him in a certain way with respect to the weight and effect, under certain circumstances, to be given to circumstantial evidence.

Third. Though many exceptions were taken to the admissibility and exclusion of evidence by the defendant, the exception mainly relied upon and pressed upon our attention was to permitting William Simpson, a witness for the people, to state whether or not the bed in which the fire occurred had, in fact, been slept upon on the night of the 3d of February, 1888, when, it is charged, the crime was committed. The question was asked, “ Now, tell the jury the condition of the bed. A. I didn’t look at the bed any more than any part of the room.

“By the court: Q. Ton took a glance of it? A. Tes, sir.

“ Q. Tell how it looked—its appearance. A. It appeared to me like any other bed.

“ Q. I suppose so. Did it appear as if anybody had recently been sleeping in it ? ”

To this objection was made upon the ground that the witness should testify as to the exact condition of the bed, leaving it for the jury to determine whether anybody slept in it or not. This objection was over

We do not think that this is open to the objection that ordinarily lies to the expression of a mere opinion. The evident intention of the witness was, in his own way—and from his answer it would appear that he was not over-intelligent—to describe just how the bed appeared to him. The question was directed to eliciting information as to the condition of the bed, and no objection could be had to a question of that character which sought to elicit such information. The answer given was a natural one from a person who apparently had so definite an idea of what was sought from him. To the answer, when given, no exception was taken by a motion to strike out, or in any other form, the answer being allowed to remain, the appellant’s counsel relying on the exception taken to overruling his objection to the question. As the question sought to elicit information which the people were justified in producing before the jury, the objection thereto was not good.

Fourth. As to the exceptions to the judge’s charge other than those already noticed. Most of these exceptions resulted from a failure to correctly apprehend the charge, due no doubt to the continuous presentation by the recorder to the jury of the law bearing upon the case; and certain phrases and portions of his language are excepted to apart from the connection and context of the charge, which, when considered as it was delivered, presents no valid ground for an exception. It is unnecessary to notice all, but the one mainly relied on will show that the criticism made is not well founded.

Thus, exception was taken to the language used by the recorde,: “ Now, these are facts, it appears to me; but I leave it entirely for you to determine which have

As said by Judge Raparlo in Sindram v. People ( 88 N. Y. 169 ; 1 N. Y. Crim. Rep. 448 ) : “ Comments upon the testimony, so long as the judge leaves the question of fact to the jury and instructs them that they are the sole judges of the matters of fact, are not the subject of legal exception.” We think that the whole charge was a clear and correct statement, not only of the rules of law governing direct evidence, but also of those relating to the treatment of circumstantial evidence by a jury. As said by the court of appeals in People v. Fanning ( 131 N. Y. 659 ; 8 N. Y. Crim. Rep. 363 ) : “In a criminal case, we think the judge has the right, and indeed it is his duty, to present the evidence to the jury in such light and with such comments that the jury may see its relevancy and pertinency to the particular issue upon which it was admitted, and thus be better qualified to appreciate its character and weight and to determine its credibility. These questions are for the jury, but it is proper that a judge should assist the jury in marshaling the evidence, so that they may more readily and intelli

Upon examining this record, therefore, and having in mind section 542 of the Criminal Code, which says that, “ after hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties,” we are of opinion that justice requires that this judgment should be affirmed.

Barrett, J., concurs.

While concurring in the opinion of Mr. Justice O’Brien, it may not be inappropriate to add a few words upon the point raised as to the construction to be given to section 490 of the Penal Code.

The only difficulty which exists in reference to the legislation as contained in the Penal Code arises from the fact that the codifiers were not content with codifying the law as they found it, and as it had been expounded for over fifty years, but attempted to make plain that which was entirely clear before, and with the result, usually attending such efforts, of producing confusion and uncertainty.

A person who willfully burns or sets on fire a building, structure, erection, vessel, car or other vehicle is guilty of arson as such crime is defined by the Penal Code.

Upon the part of the defendant it is claimed that because of section 490, which is as follows : “ The burning of a building under circumstances which show beyond a reasonable doubt that there was no intent to destroy it is not arson,” the defendant, therefore, was not guilty of arson.

It may very well be claimed that this section has no

If the claim advanced by the defendant is true, then the definitions of arson as contained in sections 486, 487 and 488 of the Penal Code are expressly repealed by section 490; and as to what is called a fire-proof building the crime of arson has been abolished. A person may with impunity set on fire a portion of a building which is fire-proof, and not be guilty of the crime of arson.

We do not think that the legislature defined arson with so great particularity and then intended to repeal absolutely the definition. The definition is particular : “ a person who willfully burns or sets on fire; ” “ willfully burns ” would seem to imply a destruction of the building; a simple setting on fire would imply that the building was not destroyed. Therefore, so far as the definition of arson is concerned, the question as to whether the building is destroyed or not is entirely immaterial. If it is willfully set on fire, it is just as much arson as though the building was burned and destroyed. This being the definition of arson at the time of the codification, the codifiers seem to have been needlessly apprehensive lest some injustice might be done because of the breadth of the definition of arson; in other words, that in case where a fire was started intentionally, but innocently, and for an innocent purpose, the person should not be guilty of arson, although the building might be destroyed and such action might possibly come within the rigid definition of willful burning or setting on fire. This apprehension was entirely groundless in view of the fact that it had been well settled that the intent with which the fire was started must be malicious in order to constitute the crime of arson. It was only for the purpose of preventing this forced construe

Barrett, J., concurs.