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carrying out the intent of this provision as children at labor instead of school, or from applicable to civil cases, has provided that capricious or recalcitrant motives, may be appeals in such cases, originating in inferior allowed to manufacture easy excuses for courts, not otherwise permitted, may be tak- not sending their children to school, a ready en to the court of appeals by permission of method will have been developed for evadthe appellate division. Code Civ. Proc. $ ing the statute compelling such attendance; 191. The constitutional provision being and, if the statute which requires parents broad and complete enough without supple- to see to it that their children attend and mentary statutory provision to secure the take advantage of this school system may right of appeal by permission, I see no rea- be lightly and easily evaded, the purposes son why we should not give to it the force of the state in providing and insisting on in criminal cases which has been adopted in education will be frustrated and impaired. civil ones, and thereby secure harmony of Failure to comply with the statute ought practice.

not to be excused except for some good reaThis course has been pursued in respect son. of the unanimous affirmance clause of the It is perfectly evident that in a great same section of the Constitution. The leg. city like New York, with its complex and islature re-enacted this provision as applica- varying conditions, regulations must be ble to civil cases. Code Civ. Proc. & 191. adopted for the purposes of preserving disIt never did this in regard to criminal pro- cipline, order, and health in the public ceedings, and in the absence of such statu- schools. Some of these regulations would tory enactment it was for some time doubt- be so plain and essential that no reasonable ed whether such constitutional provision person would think of disputing their vaapplied to criminal proceedings. That doubt lidity or of making unwillingness to comply now has been removed, and it has been therewith a basis for not sending his chil. abundantly held that it is so applicable. dren to school. The question which, within The reasoning which was applied by Judge certain limits, is presented here, is whether Gray to that question seems to be entirely the statute and the by-laws of the board of pertinent to the present one. He wrote: education in that city, adopted under and “The constitutional provision as to the con- in accordance with the statute requiring clusiveness of a judgment upon all ques- vaccination as a condition of attending the tions of fact, when unanimously affirmed by public schools, are, under ordinary condithe appellate division, is unqualified in its tions, so unusual or oppressive that a parlanguage, and there is no reason for deny- ent should be allowed to make his unwilling. ing its effect in criminal cases.” People v. ness to comply therewith a basis for not Maggiore, 189 N. Y. 514, 515, 81 N. E. 775, sending his children to school; for that is 776.

what the present position of the defendant Without deciding the question, it was as. amounts to. I do not think that they are sumed in People v. Johnston, supra, that of such a character. the constitutional provision under consider. It is unnecessary to engage in any disation was applicable to criminal cases. cussion of the police powers of the state in

There was no necessity for formulating respect of this subject, or to argue that the and certifying a specific question. Kurz v. statute requiring vaccination as a condition Doerr, 180 N. Y. 88, 92, 105 Am. St. Rep. of attending public schools is well within 716, 72 N. E. 926, 2 Ann. Cas. 71.

such police power. This subject was careThus we are brought to a consideration fully and elaborately construed by this of the appeal on the merits. It is ob- court in Re Viemeister, 179 N. Y. 235, 70 vious that a parent should not be allowed L.R.A, 796, 103 Am. St. Rep. 859, 72 N. E. to escape his duty to send his children to 97, 1 Ann. Cas. 334, and it was there held school, as provided by law, on any excuse that the legislature might pass such a law, which is not an ample justification for such and, amongst other things, it was writtan course.

in substance that, while it could not be Our public school system has been de exactly and absolutely demonstrated that veloped with great pains and solicitude, vaccination prevented smallpox, and while and its maintenance and support have been some authorities disputed this proposition, recognized as so important for the welfare the prevalent belief was that it did have of the state that they have been provided this effect, and therefore that it was for the for and safeguarded in the Constitution it- legislature, in the exercise of its discretion, self.

to decide this question, and, if it considered As a part of this system, a statute has that the remedy was effective, pass such a been passed requiring attendance at school statute in the interest of public health. of children within certain limits. If in- Under this decision we must assume that different or selfish parents, for ulterior pur- the law requiring vaccination of children in poses, such as the desire to place young 'the public schools is a proper one.

But it is urged that, while this law may , compelling vaccination is constitutional. properly be applied to those who, in the Jacobson v. Massachusetts, 197 U. S. 11, 49 face of its provisions, elect to attend the L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. public schools, still it is of such a character Cas. 765. that its remedies ought not to be indirectly Therefore, at least under general and forced upon any unwilling person through ordinary conditions, I do not believe that a the compulsory attendance provisions of parent may escape his duties under the edthe education law, and we are reminded of ucation law by pleading simple unwilling. the familiar principle that a penal law ness to have his child attend the public should be strictly construed.

schools subject to the condition of vaccinaAdmitting all of the force which this tion. principle justly has, there is another rule So far as the evidence discloses, the of construction which seems to me more defendant's refusal to comply with the repotent in this case, and that is the one that quirements of attendance at school was arstatutes relating to the same general sub- bitrary and capricious; and as one reads ject are to be construed in harmony with the record and argument of his counsel each other if possible.

the impression somehow arises that he was The statute requiring vaccination was more interested in asserting his right to readopted in its present form in 1893. Pub- fuse to comply with the law than he was lic health law (Laws of 1893, chap. 661), s actuated by the purpose of protecting his 200. The provision requiring attendance child from some possible or supposed injury, upon instruction was first adopted in 1894 I think there is still another reason why (chapter 671). Thus we find that the legis- the defendant was not excused for disobedilature adopted the statute providing for ence of the law requiring him to see to the compulsory attendance at school the very education of his child. next year after it had passed the statute re- The vaccination statute which we have quiring vaccination of those attending the been considering applies only to the public public schools, and it does not seem reason- schools. It is well known that there are able to assume that it was the legislative schools of other kinds and classes which intention, in passing both of these statutes might have been attended by the defendant's relating to attendance at school, to provide child, where attendance would not have and have it come to pass that the unwilling- been subject to the condition which he now ness to comply with the one requiring vac- urges as an excuse for his failure to send cination might be turned into a good ex- his child to school. It is answered in his cuse for disobeying the other one concerning behalf to this suggestion that that would attendance.

entail expense. This might or might not be It is hardly to be assumed that when the so, and even if it were, it would not be suflegislature passed the later statute there ficient to excuse the present position and had slipped from its theoretical mind re- situation of the defendant. We are made membrance of the other law providing a well aware at the present day that the gove very important condition of attendance at ernment, in the exercise of its police powers, public schools, and, if it had purposed that does impose many regulations which involve a child might be excused from attendance by trouble and expense, and such trouble and reason of the unwillingness of its parent expense have not been regarded as an exto have it vaccinated, I cannot but believe cuse for noncompliance. If the defendant that something would have been said on does not desire to take advantage of the that subject.

public schools under the conditions preIt does not require much spirit of proph- scribed fo their operation, it very possibly ecy to foresee what will follow a contrary may result that he will incur some addiconstruction of the statutes. If a parents tional trouble in the education of his chil. may escape all obligation under the statute dren elsewhere. The choice of courses rests requiring him to send his children to school with him, and the burdens of either will by simply alleging that he does not believe doubtless be fully compensated by the benein vaccination, the policy of the state to fits to accrue from furnishing an education give some education to all children, if nec- to his children. essary by compelling measure, will become The order should be affirmed. more or less of a farce under existing legislation,

Werner, Chase, Collin, Cuddeback, It is to be borne in mind in this connec- and Hogan, JJ., concur. Willard Bartlett, tion that it has been held by the Supreme Ch. J., concurs on ground last stated in Court of the United States that a statute I opinion.

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NEW YORK COURT OF APPEALS. upon the question whether or not the fire

which is the basis of an indictment for PEOPLE OF THE STATE OF NEW arson was set.

YORK, Respts.,
V.

(Cardozo, Cuddeback, and Miller, JJ., disGEORGE GRUTZ, Appt.

sent.) (212 N. Y. 72, 105 N. E. 843)

(June 9, 1914.) Appeal – defect in indictment. 1. Failure of an indictment for arson to

of the Appellate Division of the Sudescribe the dwelling or identify the per- preme Court, First Department, affirming son alleged to have been in it is not, in the a judgment of a Trial Term, Part I., for absence of demurrer, available on appeal. New York County, convicting him of arson Evidence - of other arson.

in the second degree. Reversed. 2. Upon trial for arson in which defend- The facts are stated in the opinion. ant is alleged to have consented to procure Mr. Robert H. Elder, for appellant: insurance on buildings, burn them, and collect the insurance, evidence is not admis- the one mentioned in the indictment, hav

It was error to prove offenses other than sible of a fire in his own building before the conspiracy existed, and which was not ing no necessary connection with one anstarted by the one who started those under other, but each being an independent transthe alleged conspiracy, or shown to have action. been connected with the one for which the People v. Zucker, 20 App. Div. 363, 46 indictment was found.

N. Y. Supp. 766; People v. Molineux, 168 Same - liability for acts of agent.

N. Y. 304, 62 L.R.A. 193, 61 N. E. 286; 3. Upon the question of the guilt of one Underhill, Ev. § 88, pp. 108–110; People accused of arson through the agency of v. Sekeson, 111 App. Div. 490, 97 N. Y. another, evidence is admissible of conver- Supp. 917. sations between accused and such person,

A defendant can always show bias or tending to show a conspiracy between them to insure buildings and set them on fire to hostility on the part of a witness against

him. procure the insurance. Same - separate arson.

People v. Webster, 139 N. Y. 73, 34 N. E. 4. Evidence of fires which had taken 730; People v. Brooks, 131 N. Y. 321, 30 place from time to time under agreement N. E. 189; Brink v. Stratton, 176 N. Y. between two persons to get the property 150, 63 L.R.A. 182, 68 N. E. 148. insured and one to set it on fire and the It was error to permit De Malignon to other collect the insurance and to share in testify to his opinions as to the incendiary the proceeds is not admissible upon a trial nature of the fire, in corroboration of Stein of an indictment for causing one of the and Gold. fires, if each was a separate transaction, with no relation between them in respect to Am. St. Rep. 608, 57 N. E. 757; Schutz v.

Dougherty v. Milliken, 163 N. Y. 527, 79 time, place, or circumstances, so that the mere evidence of the origin of one would Union R. Co. 181 N. Y. 33, 73 N. E. 491. tend to prove the origin of another.

The indictment did not state facts suffiTrial – permitting statement of ques.

cient to constitute a cause of action. tion to witness.

People v. Corbalis, 178 N. Y. 516, 71 N. 5. When a witness has denied hostility E. 106; People v. Willis, 158 N. Y. 392, 53 to defendant in a criminal cause, counsel N. E. 29; People v. Lammerts, 164 N. Y. for accused should be permitted to state 144, 58 N. E. 22; People v. Dimick, 107 N. his questions to another witness, called to Y. 29, 14 N. E. 178. prove hostility, so as to show whether or Messrs. Robert S. Johnstone, Royal H. not they are within the rule admitting eviWeller, and Stanley L. Richter, with Mr. dence of that character.

Charles S. Whitman, for respondents: Evidence opinion origin of fire.

Evidence which may show the commis6. Expert testimony is not admissible sion of crimes other than the specific one

Note. — The general subject of the ad- charged is not inadmissible; if there be some missibility of evidence of other crimes in proper purpose for which the testimony criminal cases is treated at length, and in may be received, the fact that it incidenits application to the various specific of- tally tends to show the commission of other fenses, in the note to People v. Molineux, crimes does not in the slightest stand in the 62 L.R.A. 193. That note, so far as the offense of arson is concerned, is

way of its admission.

supplemented in the note to Fish v. United States,

Wigmore, Ev. $$ 215, 304, 351; People L.R.A. 1915A, 809. For annotation supple- v. McLaughlin, 150 N. Y. 365, 44 N. E. menting the earlier note as to various other 1017; People v. Peckens, 153 N. Y. 576, 47 specific offenses, see Index to L.R.A. Notes, N. E. 883; People v. Van Tassel, 156 X. Y. "Evidence," 8 295.

561, 51 N. E. 274; People v. Place, 157 N. Y. 584, 52 N. E. 576; People v. Molineux, , which dwelling there was at the time some

168 , n

People v. Doty, 175 N. Y. 164, 67 N. E. 303; | simply repetitions of the first, with the exPeople v. Cahill, 193 N. Y. 232, 20 L.R.A. ception that each names a different person (N.S.) 1084, 86 N. E. 39; People v. Katz, as the householder in whose dwelling the 209 N. Y. 311, 103 N. E. 305, Ann. Cas. fire took place. The defendant now chal1915A, 501; People v. Marrin, 205 N. Y. lenges the sufficiency of the indictment on 275, 43 L.R.A. (N.S.) 754, 98 N. E. 474; two grounds: (1) That it refers to a People v. Dolan, 186 N. Y. 4, 116 Am. St. dwelling house, but does not state in precise Rep. 521, 78 N. E. 569, 9 Ann. Cas. 453; terms or by description where the house People v. Shulman, 80 N. Y. 373, note; Peo- was located. (2) That it states that there ple v. Weisenberger, 73 App. Div. 428, 77 was some human being in the house at the N. Y. Supp. 71; Weyman v. People, 4 Hun, time of the fire, but does not identify the 511, 62 N. Y. 623; Com. v. Robinson, 146 person by name or otherwise. Both of these Mass. 571, 16 N. E. 452; Mayer v. People, objections could have been raised by de80 N. Y. 364; Rex. v. Bond, 21 Cox, C. C. murrer (Code Crim. Proc. § 323, subdiv. 2), 252; Rex v. Rhodes, 19 Cox, C. C. 182; but they were not available to the defendState v. Schnettler, 181 Mo. 173, 79 S. W. ant at the trial or on his motion in arrest 1123.

of judgment (Code Crim. Proc. § 331), and Evidence showing the bias or hostility for that reason they cannot be considered of a witness must not be remote and uncer- on this appeal. tain, from which hostility might or might The case was tried for the prosecution not be inferred, but it must be direct and upon the theory that the defendant and positive.

Stein had entered into a conspiracy to inSchultz v. 3d Ave. R. Co. 89 N. Y. 242; duce various persons to insure their houseGale v. New York C. & H. R. R. Co. 76 N. hold effects for the purpose of having them Y. 594; People v. Brooks, 131 N. Y. 321, damaged or destroyed by fires which were 30 N. E. 189; Brink v. Stratton, 176 N. to be made by Stein; and that the defendY. 150, 63 L.R.A. 182, 68 N. E. 148. ant's part in the scheme was to take care

The testimony of De Malignon was ad- of the adjustment of the losses and the colmissible.

lection of the insurance moneys for a stipuWigmore, Ev. chap. LXV. & 1917, pp. I lated percentage, out of which he was to 2545, 2546, 2549, 2552; Dougherty v. Milli- pay Stein for the setting of the fires. As to ken, 163 N. Y. 527, 79 Am. St. Rep. 608, 57 the fire referred to in the indictment, the N. E. 757; Finn v. Cassidy, 165 N. Y. 584, two principal witnesses were Gold, the 53 L.R.A. 877, 59 N. E. 311.

owner of the property which had been inThe indictment was not defective. sured and burned, and Stein, who laid and

Phelps v. People, 72 N. Y. 334; People started the fire. Their testimony tended to v. Adams, 85 App. Div. 390, 83 N. Y. Supp. show that Gold had procured insurance 481; People v. Herlihy, 66 App. Div. 534, upon his household goods, pursuant to an 73 N. Y. Supp. 236; People v. Tower, 135 understanding with the defendant that N: Y. 457, 32 N. E. 145; People v. Free Stein should be employed to make a fire, man, 160 App. Div. 640, 145 N. Y. Supp. and that then the defendant would attend 1061; Levy v. People, 80 N. Y. 327; Peo- to the adjustment of the loss and the colple v. Willis, 158 N. Y. 392, 53 N. E. 29; lection of the insurance. With the details People v. Knapp, 206 N. Y. 373, 99 N. E. of this branch of the trial we need not con841, Ann. Cas. 1914B, 243.

cern ourselves, for the judgment entered

upon the verdict has been unanimously afWerner, J., delivered the opinion of the firmed, and that imports absolute verity of court:

everything not challenged by objection and The defendant was indicted jointly with exception. one Isador Stein on the charge of arson in The prosecution adduced evidence, from the second degree and was convicted. At Stein, of nine other incendiary fires in the appellate division the judgment of con- which the defendant is said to have been viction was unanimously affirmed, and the implicated with Stein, and of one fire in case is now before this court on defendant's the defendant's own premises with which appeal.

Stein had no connection. All of this testi. The specification of the first count of mony was received by the trial court over the indictment is that the defendant and the objections and exceptions of defendant's Stein, in the daytime and on the 1st day counsel. These exceptions are the defendof December, 1910, did wilfully and feloni. ant's principal reliance on this appeal, alously set fire to and burn a certain dwelling though there are others to which we shall house of one Sam Gold, in the borough of have occasion to refer. Before we give more the Bronx, in the city of New York, in specific attention to the testimony of other

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crimes adduced by the prosecution against , separate heads. Evidence of other crimes the defendant, it will be useful to have in is, of course, always admissible when such mind the theory upon which its admission evidence tends directly to establish the paris sought to be justified on the one hand ticular crime; and evidence of other crimes and condemned on the other.

is usually competent to prove the specific It is one of the distinguishing features crime when it tends to establish (1) motive, of our common-law system of jurispru. (2) intent, (3) the absence of mistake or dence that, as a general rule, a person who accident, (4) a common scheme or plan is on trial charged with a particular crime embracing the commission of two or more may not be shown to be guilty thereof by crimes so related to each other that proof evidence showing that he has committed of one tends to establish the others, (5) other crimes. The reason for this general the identity of the person charged with the rule has been stated by this court in a num commission of the crime on trial. People ber of decisions, but never more tersely and v. Molineux, supra. By eliminating, as clearly than by Judge Peckham in People inapplicable to the case at bar, the first, V. Shea, 147 N. Y. 78, 99, 41 N. E. 505: second, third, and fifth of these judicial en“The impropriety of giving evidence show.graftments upon the general rule, we come ing that the accused had been guilty of at once to the one which the district attorother crimes merely for the purpose of ney invokes. He argues with much force thereby inferring his guilt of the crime for that the evidence of other crimes in which which he is on trial may be said to have the defendant and Stein are said to have been assumed and consistently maintained been jointly concerned tends to prove the by the English courts ever since the coni- existence of a common plan or scheme emmon law has itself been in existence. Two bracing the commission of two or antagonistic methods for the judicial in-crimes so related to each other that proof vestigation of crime and the conduct of of any one tends to establish the commiscriminal trials have existed for many years. sion of the others. Even if we were to conOne of these methods favors this kind of cede the applicability of this rule to the evidence in order that the tribunal which case at bar, we do not find any justification is engaged in the trial of the accused may for the reception of the testimony showing have the benefit of the light to be derived that there had been a fire in the house occufrom a record of his whole past life, his pied by the defendant. Stein testified that tendencies, his nature, his associates, his he had nothing to do with that fire, and practices, and, in fine, all the facts which there is no evidence that it was of incengo to make up the life of a human being. diary origin, except as that inference may This is the method which is pursued in be drawn from, the admission of the defendFrance, and it is claimed that entire jus- ant to Stein to the effect that one Titel. tice is more apt to be done where such a baum was the incendiary. That admission course is pursued than where it is omitted. would, of course, be competent evidence The common law of England, however, has against the defendant on a trial for the adopted another, and, so far as the party particular offense; but it was utterly iraccused is concerned, a much more merciful relevant to the question whether the dedoctrine. By that law the criminal is to fendant and Stein had entered into be presumed innocent until his guilt is made conspiracy which resulted in the fire to appear, beyond a reasonable doubt, to charged in the indictment. According to a jury of twelve men. In order to prove the record there was not the remotest his guilt it is not permitted to show his connection between the fire on the deformer character or to prove his guilt of fendant's premises and the fire charged other crimes merely for the purpose of rais- in the indictment or any other of the nine ing à presumption that he who would com- different fires in which Stein says the demit them would be more apt to commit the fendant was implicated. The fire in the crime in question.”

defendant's house occurred before there was The same subject is discussed at length any conspiracy between the defendant and in People v. Molineux, 168 N. Y. 264, 292, Stein, and it had no more relation to the 62 L.R.A. 193, 61 N. E. 286, and more other offenses than an assault or a theft recently in People v. Dolan, 186 N. Y. 4, 116 committed by the defendant. The error in Am. St. Rep. 521, 78 N. E. 569, 9 Ann. Cas. receiving this evidence was in itself so se453, in People v. Katz, 209 N. Y. 311, 103 rious as to require a reversal of the judgN. E. 305, Ann. Cas. 1915A, 501, and in ment; but we cannot stop here, for the other cases. There are, however, certain record discloses other equally prejudicial recognized exceptions to this general rule errors which must be avoided on another which cannot be scientifically classified or trial. enumerated, but which by common consent Stein testified to various conversations have long been grouped under five or six with the defendant which tended to estab

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