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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; and, if the statute which requires parents to see to it that their children attend and take advantage of this school system may be lightly and easily evaded, the purposes of the state in providing and insisting on education will be frustrated and impaired. Failure to comply with the statute ought not to be excused except for some good reason.

191. The constitutional provision being broad and complete enough without supplementary statutory provision to secure the right of appeal by permission, I see no reason why we should not give to it the force in criminal cases which has been adopted in civil ones, and thereby secure harmony of practice.

It is perfectly evident that in a great city like New York, with its complex and

This course has been pursued in respect of the unanimous affirmance clause of the same section of the Constitution. The legislature re-enacted this provision as applica-varying conditions, regulations must be ble to civil cases. Code Civ. Proc. § 191. It never did this in regard to criminal proceedings, and in the absence of such statutory enactment it was for some time doubt ed whether such constitutional provision applied to criminal proceedings. That doubt now has been removed, and it has been abundantly held that it is so applicable. The reasoning which was applied by Judge Gray to that question seems to be entirely pertinent to the present one. He wrote: "The constitutional provision as to the conclusiveness of a judgment upon all questions of fact, when unanimously affirmed by the appellate division, is unqualified in its language, and there is no reason for denying its effect in criminal cases." People v. Maggiore, 189 N. Y. 514, 515, 81 N. E. 775, 776.

Without deciding the question, it was assumed in People v. Johnston, supra, that the constitutional provision under consideration was applicable to criminal cases.

There was no necessity for formulating and certifying a specific question. Kurz v. Doerr, 180 N. Y. 88, 92, 105 Am. St. Rep. 716, 72 N. E. 926, 2 Ann. Cas. 71.

Thus we are brought to a consideration of the appeal on the merits. It is obvious that a parent should not be allowed to escape his duty to send his children to school, as provided by law, on any excuse which is not an ample justification for such

course.

Our public school system has been developed with great pains and solicitude, and its maintenance and support have been recognized as so important for the welfare of the state that they have been provided for and safeguarded in the Constitution itself.

As a part of this system, a statute has been passed requiring attendance at school of children within certain limits. If indifferent or selfish parents, for ulterior purposes, such as the desire to place young

adopted for the purposes of preserving discipline, order, and health in the public schools. Some of these regulations would be so plain and essential that no reasonable person would think of disputing their validity or of making unwillingness to comply therewith a basis for not sending his children to school. The question which, within certain limits, is presented here, is whether the statute and the by-laws of the board of education in that city, adopted under and in accordance with the statute requiring vaccination as a condition of attending the public schools, are, under ordinary conditions, so unusual or oppressive that a parent should be allowed to make his unwillingness to comply therewith a basis for not sending his children to school; for that is what the present position of the defendant amounts to. I do not think that they are of such a character.

It is unnecessary to engage in any discussion of the police powers of the state in respect of this subject, or to argue that the statute requiring vaccination as a condition of attending public schools is well within such police power. This subject was carefully and elaborately construed by this court in Re Viemeister, 179 N. Y. 235, 70 L.R.A. 796, 103 Am. St. Rep. 859, 72 N. E. 97, 1 Ann. Cas. 334, and it was there held that the legislature might pass such a law, and, amongst other things, it was written in substance that, while it could not be exactly and absolutely demonstrated that vaccination prevented smallpox, and while some authorities disputed this proposition, the prevalent belief was that it did have this effect, and therefore that it was for the legislature, in the exercise of its discretion, to decide this question, and, if it considered that the remedy was effective, pass such a statute in the interest of public health. Under this decision we must assume that the law requiring vaccination of children in the public schools is a proper one.

But it is urged that, while this law may properly be applied to those who, in the face of its provisions, elect to attend the public schools, still it is of such a character that its remedies ought not to be indirectly forced upon any unwilling person through the compulsory attendance provisions of the education law, and we are reminded of the familiar principle that a penal law should be strictly construed.

Admitting all of the force which this principle justly has, there is another rule of construction which seems to me more potent in this case, and that is the one that statutes relating to the same general subject are to be construed in harmony with each other if possible.

compelling vaccination is constitutional.
Jacobson v. Massachusetts, 197 U. S. 11, 49
L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann.
Cas. 765.

Therefore, at least under general and ordinary conditions, I do not believe that a parent may escape his duties under the education law by pleading simple unwillingness to have his child attend the public schools subject to the condition of vaccination.

So far as the evidence discloses, the defendant's refusal to comply with the requirements of attendance at school was arbitrary and capricious; and as one reads the record and argument of his counsel the impression somehow arises that he was more interested in asserting his right to re

actuated by the purpose of protecting his child from some possible or supposed injury. I think there is still another reason why the defendant was not excused for disobedience of the law requiring him to see to the education of his child.

The statute requiring vaccination was adopted 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 200. The provision requiring attendance upon instruction was first adopted in 1894 (chapter 671). Thus we find that the legislature adopted the statute providing for compulsory attendance at school the very next year after it had passed the statute requiring vaccination of those attending the public schools, and it does not seem reasonable to assume that it was the legislative intention, in passing both of these statutes relating to attendance at school, to provide and have it come to pass that the unwillingness to comply with the one requiring vaccination might be turned into a good excuse for disobeying the other one concerning attendance.

It is hardly to be assumed that when the legislature passed the later statute there had slipped from its theoretical mind remembrance of the other law providing a very important condition of attendance at public schools, and, if it had purposed that a child might be excused from attendance by reason of the unwillingness of its parent to have it vaccinated, I cannot but believe that something would have been said on that subject.

It does not require much spirit of prophecy to foresee what will follow a contrary construction of the statutes. If a parent may escape all obligation under the statute requiring him to send his children to school by simply alleging that he does not believe in vaccination, the policy of the state to give some education to all children, if necessary by compelling measure, will become more or less of a farce under existing legislation.

It is to be borne in mind in this connection that it has been held by the Supreme Court of the United States that a statute

The vaccination statute which we have been considering applies only to the public schools. It is well known that there are schools of other kinds and classes which might have been attended by the defendant's child, where attendance would not have been subject to the condition which he now urges as an excuse for his failure to send his child to school. It is answered in his behalf to this suggestion that that would entail expense. This might or might not be so, and even if it were, it would not be sufficient to excuse the present position and situation of the defendant. We are made well aware at the present day that the government, in the exercise of its police powers, does impose many regulations which involve trouble and expense, and such trouble and expense have not been regarded as an excuse for noncompliance. If the defendant does not desire to take advantage of the public schools under the conditions prescribed fo their operation, it very possibly may result that he will incur some additional trouble in the education of his children elsewhere. The choice of courses rests with him, and the burdens of either will doubtless be fully compensated by the benefits to accrue from furnishing an education to his children.

The order should be affirmed.

Werner, Chase, Collin, Cuddeback, and Hogan, JJ., concur. Willard Bartlett, Ch. J., concurs on ground last stated in opinion.

NEW YORK COURT OF APPEALS.

PEOPLE OF THE STATE OF NEW YORK, Respts.,

v.

GEORGE GRUTZ, Appt.

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

Appeal

defect in indictment. 1. Failure of an indictment for arson to describe the dwelling or identify the person alleged to have been in it is not, in the absence of demurrer, available on appeal. Evidence of other arson.

2. Upon trial for arson in which defendant is alleged to have consented to procure insurance on buildings, burn them, and collect the insurance, evidence is not admissible of a fire in his own building before the conspiracy existed, and which was not started by the one who started those under the alleged conspiracy, or shown to have been connected with the one for which the indictment was found.

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separate arson.

4. Evidence of fires which had taken place from time to time under agreement between two persons to get the property

insured and one to set it on fire and the other collect the insurance and to share in the proceeds is not admissible upon a trial of an indictment for causing one of the fires, if each was a separate transaction, with no relation between them in respect to time, place, or circumstances, so that the mere evidence of the origin of one would tend to prove the origin of another.

Trial - permitting statement of question to witness.

5. When a witness has denied hostility to defendant in a criminal cause, counsel for accused should be permitted to state his questions to another witness, called to prove hostility, so as to show whether or not they are within the rule admitting evidence of that character.

Evidence

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opinion origin of fire. 6. Expert testimony is not admissible Note. The general subject of the admissibility of evidence of other crimes in criminal cases is treated at length, and in its application to the various specific offenses, in the note to People v. Molineux, 62 L.R.A. 193. That note, so far as the offense of arson is concerned, is supplemented in the note to Fish v. United States,

L.R.A. 1915A, 809. For annotation supplementing the earlier note as to various other specific offenses, see Index to L.R.A. Notes, "Evidence," § 295.

upon the question whether or not the fire which is the basis of an indictment for arson was set.

(Cardozo, Cuddeback, and Miller, JJ., dissent.)

A

(June 9, 1914.)

PPEAL by defendant from a judgment of the Appellate Division of the Supreme Court, First Department, affirming a judgment of a Trial Term, Part I., for New York County, convicting him of arson in the second degree. Reversed.

The facts are stated in the opinion. Mr. Robert H. Elder, for appellant: It was error to prove offenses other than the one mentioned in the indictment, having no necessary connection with one another, but each being an independent transaction.

People v. Zucker, 20 App. Div. 363, 46 N. Y. Supp. 766; People v. Molineux, 168 N. Y. 304, 62 L.R.A. 193, 61 N. E. 286; Underhill, Ev. § 88, pp. 108-110; People v. Sekeson, 111 App. Div. 490, 97 N. Y. Supp. 917.

A defendant can always show bias or hostility on the part of a witness against

him.

People v. Webster, 139 N. Y. 73, 34 N. E. 730; People v. Brooks, 131 N. Y. 321, 30 N. E. 189; Brink v. Stratton, 176 N. Y. 150, 63 L.R.A. 182, 68 N. E. 148.

It was error to permit De Malignon to testify to his opinions as to the incendiary nature of the fire, in corroboration of Stein and Gold.

Dougherty v. Milliken, 163 N. Y. 527, 79 Am. St. Rep. 608, 57 N. E. 757; Schutz v. Union R. Co. 181 N. Y. 33, 73 N. E. 491.

The indictment did not state facts sufficient to constitute a cause of action.

People v. Corbalis, 178 N. Y. 516, 71 N. E. 106; People v. Willis, 158 N. Y. 392, 53 N. E. 29; People v. Lammerts, 164 N. Y. 144, 58 N. E. 22; People v. Dimick, 107 N. Y. 29, 14 N. E. 178.

Messrs. Robert S. Johnstone, Royal H. Weller, and Stanley L. Richter, with Mr. Charles S. Whitman, for respondents:

Evidence which may show the commission of crimes other than the specific one charged is not inadmissible; if there be some proper purpose for which the testimony may be received, the fact that it incidentally tends to show the commission of other crimes does not in the slightest stand in the way of its admission.

Wigmore, Ev. §§ 215, 304, 351; People V. McLaughlin, 150 N. Y. 365, 44 N. E. 1017; People v. Peckens, 153 N. Y. 576, 47 N. E. 883; People v. Van Tassel, 156 N. Y. 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. Y. 264, 62 L.R.A. 193, 61 N. E. 286; human being. The other two counts are 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. (N.S.) 1084, 86 N. E. 39; People v. Katz, 209 N. Y. 311, 103 N. E. 305, Ann. Cas. 1915A, 501; People v. Marrin, 205 N. Y. 275, 43 L.R.A. (N.S.) 754, 98 N. E. 474; People v. Dolan, 186 N. Y. 4, 116 Am. St. Rep. 521, 78 N. E. 569, 9 Ann. Cas. 453; People v. Shulman, 80 N. Y. 373, note; People v. Weisenberger, 73 App. Div. 428, 77 N. Y. Supp. 71; Weyman v. People, 4 Hun, 511, 62 N. Y. 623; Com. v. Robinson, 146 Mass. 571, 16 N. E. 452; Mayer v. People, 80 N. Y. 364; Rex. v. Bond, 21 Cox, C. C. 252; Rex v. Rhodes, 19 Cox, C. C. 182; State v. Schnettler, 181 Mo. 173, 79 S. W. 1123.

Evidence showing the bias or hostility of a witness must not be remote and uncertain, from which hostility might or might not be inferred, but it must be direct and positive.

ception that each names a different person as the householder in whose dwelling the fire took place. The defendant now challenges the sufficiency of the indictment on two grounds: (1) That it refers to a dwelling house, but does not state in precise terms or by description where the house was located. (2) That it states that there was some human being in the house at the time of the fire, but does not identify the person by name or otherwise. Both of these objections could have been raised by demurrer (Code Crim. Proc. § 323, subdiv. 2), but they were not available to the defendant at the trial or on his motion in arrest of judgment (Code Crim. Proc. § 331), and for that reason they cannot be considered on this appeal.

The case was tried for the prosecution upon the theory that the defendant and Stein had entered into a conspiracy to induce various persons to insure their household effects for the purpose of having them damaged or destroyed by fires which were to be made by Stein; and that the defendant's part in the scheme was to take care

Schultz v. 3d Ave. R. Co. 89 N. Y. 242; Gale v. New York C. & H. R. R. Co. 76 N. Y. 594; People v. Brooks, 131 N. Y. 321, 30 N. E. 189; Brink v. Stratton, 176 N. Y. 150, 63 L.R.A. 182, 68 N. E. 148. The testimony of De Malignon was ad- of the adjustment of the losses and the colmissible.

Wigmore, Ev. chap. LXV. § 1917, pp. 2545, 2546, 2549, 2552; Dougherty v. Milliken, 163 N. Y. 527, 79 Am. St. Rep. 608, 57 N. E. 757; Finn v. Cassidy, 165 N. Y. 584, 53 L.R.A. 877, 59 N. E. 311.

lection of the insurance moneys for a stipulated percentage, out of which he was to pay Stein for the setting of the fires. As to the fire referred to in the indictment, the two principal witnesses were Gold, the 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. 1061; Levy v. People, 80 N. Y. 327; People v. Willis, 158 N. Y. 392, 53 N. E. 29; People v. Knapp, 206 N. Y. 373, 99 N. E. 841, Ann. Cas. 1914B, 243.

and that then the defendant would attend to the adjustment of the loss and the collection of the insurance. With the details of this branch of the trial we need not concern ourselves, for the judgment entered upon the verdict has been unanimously af

Werner, J., delivered the opinion of the firmed, and that imports absolute verity of court:

The defendant was indicted jointly with one Isador Stein on the charge of arson in the second degree and was convicted. At the appellate division the judgment of conviction was unanimously affirmed, and the case is now before this court on defendant's appeal.

The specification of the first count of the indictment is that the defendant and Stein, in the daytime and on the 1st day of December, 1910, did wilfully and feloniously set fire to and burn a certain dwelling house of one Sam Gold, in the borough of the Bronx, in the city of New York, in

everything not challenged by objection and exception.

The prosecution adduced evidence, from Stein, of nine other incendiary fires in which the defendant is said to have been implicated with Stein, and of one fire in the defendant's own premises with which Stein had no connection. All of this testimony was received by the trial court over the objections and exceptions of defendant's counsel. These exceptions are the defendant's principal reliance on this appeal, although there are others to which we shall have occasion to refer. Before we give more specific attention to the testimony of other

ney invokes. He argues with much force that the evidence of other crimes in which the defendant and Stein are said to have been jointly concerned tends to prove the existence of a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of any one tends to establish the commis

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 thereby inferring his guilt of the crime for which he is on trial may be said to have been assumed and consistently maintained by the English courts ever since the common law has itself been in existence. Two antagonistic methods for the judicial investigation of crime and the conduct of criminal 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 Titeltice is more apt to be done where such a course is pursued than where it is omitted. The common law of England, however, has adopted another, and, so far as the party accused is concerned, a much more merciful doctrine. By that law the criminal is to be presumed innocent until his guilt is made to appear, beyond a reasonable doubt, to a jury of twelve men. In order to prove his guilt it is not permitted to show his former character or to prove his guilt of other crimes merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question."

The same subject is discussed at length in People v. Molineux, 168 N. Y. 264, 292, 62 L.R.A. 193, 61 N. E. 286, and more recently in People v. Dolan, 186 N. Y. 4, 116 Am. St. Rep. 521, 78 N. E. 569, 9 Ann. Cas. 453, in People v. Katz, 209 N. Y. 311, 103 N. E. 305, Ann. Cas. 1915A, 501, and in other cases. There are, however, certain recognized exceptions to this general rule which cannot be scientifically classified or enumerated, but which by common consent have long been grouped under five or six

a

baum was the incendiary. That admission would, of course, be competent evidence against the defendant on a trial for the particular offense; but it was utterly irrelevant to the question whether the defendant and Stein had entered into conspiracy which resulted in the fire charged in the indictment. According to the record there was not the remotest connection between the fire on the defendant's premises and the fire charged in the indictment or any other of the nine different fires in which Stein says the defendant was implicated. The fire in the defendant's house occurred before there was any conspiracy between the defendant and Stein, and it had no more relation to the other offenses than an assault or a theft committed by the defendant. The error in receiving this evidence was in itself so serious as to require a reversal of the judg ment; but we cannot stop here, for the record discloses other equally prejudicial errors which must be avoided on another trial.

Stein testified to various conversations with the defendant which tended to estab

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