People v. Cassidy — 39 N.Y. St. Rep. 27

Majority

p. 27

The People of the State of New York, Resp’ts, v. Henry A. Cassidy, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.

Headnote

1. Arson—Evidence—Surroundings of house burned.

Upon the trial of a person charged with arson in the first degree it is competent and proper for the prosecution to show the situation and surroundings of the house alleged to have been burned.

% Evidence—Admissions to police officer—Code Grim. Pro., § 395.

Voluntary admissions made to a police officer in response to questions may be received in evidence unless they were made “ under the influence of fear produced by threats,” and the question as to whether they were so made is one proper for the jury to pass upon.

3. Same—Witness—Impeaching.

Defendant’s father denied on cross-examination that he had been previously discharged by the owners of the burned building, or had made charges against his successor. Held, that a letter written by him contradicting these statements was inadmissible as impeaching his credibility as a witness.

4. Same—Previous fires.

In such a case, evidence that fires had occurred at the same place, not confined to the period of defendant’s father’s employment or at a time prior to the fire alleged, is incompetent.

Appeal from judgment of the court of sessions of Westchester county convicting defendant of arson in the first degree, in setting fire in the night time to the house of the Mew York Catholic Protectory, used as a lodging place for their employees, and so occupied on the night of the fire.

The People were allowed to show that there were four houses in a row, occupied by families in the employ of the protectory, and that the houses were connected. Inspector Byrnes was allowed to testify to admissions made by the prisoner, who was requested to be brought before him, and which were made voluntarily, and in which he stated that his father was responsible for the crime.

His father had been discharged from employment in the protectory as gas manager, and testified that he had made no complaint and had not been discharged. He also denied that he had stated that the employee who succeeded him did not understand his business, and that the place would blow up, etc. A letter written by him containing charges against his successor and complaining of his own discharge was admitted under objections.

A fellow workman of the prisoner’s father who had been employed in the gas works for many years, was asked how many fires there had been at the protectory, but the evidence was excluded as immaterial.

p. 28

W.Popham Platt, for The People, resp’ts ; Fred'k. Wm. Sherman and Frederick W. Clark, for app’lt.

—The defendant was indicted, tried and convicted for setting on fire a dwelling house, in the night time, at the time occupied by human beings.

The case was submitted to the jury under a charge conspicuously clear and comprehensive, to which no exception was taken, and the verdict is amply sustained by the evidence.

Indeed, the proof of guilt was so abundant and conclusive that no other result could reasonably have been expected. There are, however, numerous exceptions that require notice.

It was competent and proper for the prosecution to show the situation and surroundings of the house alleged to have been burned. Such evidence was not only a part of the res geske, but had a bearing upon the question of motive.

Another answer to this exception is that the proof showed that all the houses inquired about constituted but one ■ dwelling, and , the proof was confined to a description of that one structure.

The admissions of the defendant were properly admitted.

The question raised by the testimony of the defendant whether the admissions were made voluntarily or under fear, for compulsion or duress, was fairly submitted to the jury.

. At the time the admissions were received as evidence there was no proof to bring the admissions within the exceptions contained in § 395 of the Code of Criminal Procedure.

In the present case the defendant was not taken before a magistrate or sworn, but the statements made by him seem to have been voluntarily made; therefore, it was not within the rule laid down in The People v. Mondon, 103 N. Y., 211 ; 2 N. Y. State Rep., 713 ; but rather within the case of The People v. McGloin, 91 N. Y., 241 .

. It is not difficult to imagine that the conduct of the police officers was well calculated to impress the defendant with fear, considering his age and the poor intellectual capacity he has been shown to possess, yet that question was distinctly passed upon by the jury and we cannot say that any legal error was committed in that regard.

• The letter of the father was competent as tending to impeach his testimony.

The answer to the exception to the exclusion of proof that other fires had occurred at the Protectory is that no time was fixed as to their occurrence. Had the inquiry been directed to the time when the defendant’s father was employed there, or at a reasonable time prior to the fire alleged, it would have been competent under the proofs already submitted.

We have examined the whole case and find no error sufficient to warrant a reversal of the judgment

Conviction affirmed.

Barnard, P. J., and Dykman, J., concur