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lish the existence of a conspiracy between court cannot clearly perceive its relevancy, them for the making of fires in which Stein the benefit of the doubt should be given to was to be the actual incendiary and the de- the defendant instead of permitting jurors fendant was to assist in the adjustment of to become prejudiced by independent facts the losses and the collection of the insur- which carry with them no proper proof of ance, while both were to receive stipulated the particular crime charged. As we have shares of the proceeds. To the extent that already had occasion to observe, the subthis testimony was directed to the establish-ject is one which cannot be treated with ment of a general plan or scheme which re- dogmatic or scientific precision. In the sulted in the Gold fire charged in the in- final analysis the application of the gendictment, it was clearly competent, and it eral rule and its recognized exceptions must may be stated in passing that there was depend upon the special facts. In concludevidence of this nature which was ample to ing our discussion of this branch of the case support the verdict convicting the defend- we deem it proper to add that the antitheant. This testimony was competent because sis of the case at bar is to be found in the it bore directly and cogently upon the de- case of People v. Duffy, 212 N. Y. 57, L.R.A. fendant's guilt of the crime charged through 1915B, 103, 105 N. E. 839, in which a police the criminal agency of Stein.

officer in the city of New York was conWe have yet to consider, however, wheth-victed of bribery. There it appeared that er the evidence as to other specific fires the accused had received from a certain intended to prove the felonious origin of the dividual a sum of money as a bribe. It was fire set forth in the indictment. In that received under circumstances which ren. connection we must not overlook the fact dered it proper, if not necessary, to give that each of the nine other fires was a sepa- evidence of the defendant's guilty intent. rate and independent transaction, entered It was shown, moreover, that the specific into as the occasion arose, and not in pur- sum which the accused there received was suance of any preconcerted general plan or but one of many contributions which had design. There was between them no such been regularly levied upon the proprietors of relation of time, place, or circumstance that various resorts and establishments under a the bare evidence as to the origin of any general plan or system. There proof of the one of these fires, in and of itself, tended system was cogent and competent evidence to prove the origin of the Gold fire. The of the guilty character of the particular Ledermann fire, according to the testimony act. In the case at bar there was no such of Stein, occurred in the latter part of 1909. connection, and this is the determining difThe time of the Greenberg, Goldberg, and ference between the two. Sardoff fires is not fixed. The fires of Sha- Since there must be a new trial, we shall piro, Wasserman, Titelbaum, and Dreier are consider two other minor errors in order that said to have taken place respectively in they may not be repeated. Aside from Stein, April, June, July, and November of 1910. the principal witnesses against the defendEach was the subject of a separate and dis- ant were Gold, Mrs. Gold, and one Roch. tinct conversation or understanding based Defendant's counsel tried to show that these upon the particular occasion as it arose. witnesses were ill-disposed toward the deNone had any relation to the Gold fire, ex. fendant, and on their several cross-examinacept that all are said to have sprung from tions he had interrogated them as to certhe general agreement between the defend- tain hostile acts and expressions against ant and Stein. It is to be noted, also, that the defendant which they either denied, or the evidence as to these other fires is quite explained with some equivocations. When unsatisfactory. Excepting Gold, not one of the defense had the case several witnesses the persons whose property is said to have were called by whom the defendant's counbeen damaged or destroyed by fire was sel sought to prove the hostile expressions called as a witness, and Stein's testimony and acts against the defendant which the was very uncertain as to the places where witnesses Gold, Mrs. Gold, and Roch had, these several fires occurred. From the prej. on their cross-examinations, either denied or udicial nature of such evidence as was given explained. The trial court ruled that this by Stein of other separate fires in which the evidence was inadmissible. It is probably defendant is said to have been concerned, fair to assume that this ruling was not it is obvious that it should not have been predicated upon the idea that evidence of received unless the perpetration of any or this character is never admissible, but rathall of these acts tended, by visible connec- er upon the ground that counsel's questions tions, to prove the defendant's complicity in were inartificial or insufficient. Of this feathe crime charged in the indictment, and ture of the case it is enough to say that eviwe think we have demonstrated that it had dence of this character is generally compeno such effect. Even in a case where evi- tent, but whether it is brought within the dence of this kind is so dubious that a rule governing the subject can only be de

cided in the light of the conditions under the man.” The very terms in which the which the question arises. Defendant's order was given presuppose some antecedent counsel called a witness to contradict Gold understanding. Its laconic phrases are as to certain hostile expressions which it equivocal, if not incredible, unless they are is claimed the latter had made against the related back to some initial compact and defendant. Before the counsel could com- some established course of dealing. The plete his question the court ruled against people were not required to leave the jury him, and it is therefore not clear whether with the impression that suddenly, out of a the evidence should have been received. It clear sky, there came from the defendant is plain, however, that the counsel should the order to commit this crime. The jury have been permitted to state his question had a right to know when and how and for to the witness.

what purposes these men had been assoThe district attorney called as a witness ciated in the past. Only through that one De Malignon, who was an assistant fire knowledge could they judge of the verity marshal in the city of New York. In his of the charge that Stein, in committing this official capacity he had visited the Gold crime, was doing the defendant's bidding. premises and investigated the fire. He was The people undertook, therefore, to exasked to give his opinion of the origin of hibit the relation between the defendant the fire, and in answer he enumerated a and Stein in its origin and growth. The number of facts which it was quite proper origin was in 1907, more than two years befor him to state and which he stated "indi-fore the crime charged in this indictment. cated to my mind the fire was set.” The Stein, who was a painter, was employed to question put to this witness was shorn of do some painting in the defendant's flat. much of its harmful effect by the nature of A fire occurred there, and Stein was inhis answer, which was quite unobjectionable structed by the defendant to say to the with the exception of the conclusion which fire marshal that no one was in the house we have quoted. This is not a case for ex- at the time. That fire was started by anpert opinion. The physical facts, which other man, one Titelbaum. More than a are the subject of investigation, are so sim. year later, in 1909, the defendant met Stein ple that they can be readily understood again and suggested that they work towhen properly described, and it is then for gether. He said that there was money to the jury to draw the appropriate conclu- be made in fires, and that there was no risk sion.

of detection. He referred to the fire in his The judgment of conviction should be re- own house, and said that no trouble had versed, and a new trial ordered.

come of it. Thus tempted, Stein yielded.

He set fire to the apartment of one LederWillard Bartlett, Ch. J., and Hiscock mann; and, afterwards, to many others. and Collin, JJ., concur.

"You can go ahead," said the defendant,

"and make fires, and there is money to be Cardozo, J., dissenting:

made here, and do not have any fear, and I dissent from the judgment about to be this is the easiest way to make money." pronounced in this case.

They had entered on arson as a business. It is not charged that the defendant set No other interpretation is possible of the the fire with his own hand. It is charged words just quoted when read in the light that Stein did the deed and that the de- of subsequent events. The defendant was fendant employed him to do it. The people, an insurance broker. It was his part to therefore, were called upon to prove the supply the insurance policies. Stein was existence of a criminal agency. They could the workman. His part was to set the not do this persuasively or even intelligibly fires that would make the policies a source without proving the past relations between of profit. It is not necessary to show that the defendant and the man who did his bid the two men associated themselves as partding. The crime charged in the indictment ners, in express terms, the defendant to prois the firing of Gold's house. The proof is cure the insurance, and Stein to burn the that in November, 1910, the defendant told buildings as the defendant gave the word. Stein there was a job for him. The job was Conspiracies are not usually formulated in to make this fire. It surely is not the law that way. But the cumulative force of all that the people could not go back of that their words and acts leaves no escape from day and hour to show the criminal agency the conclusion that there was a comprehenin its genesis and its development. Men do sive plan between them to work in concert not commonly approach each other on the at the trade of arson, the defendant in comstreet and offer jobg of that kind without mand, and Stein his constant agent. The preface or warning. “Mr. Grutz said that order to burn Gold's house was, 'therefore, he had a job for me. I asked him where not an isolated and spontaneous and sudthe job was. And he said to me, 'You know'den solicitation to crime. It was a step in. the consummation of a conspiracy. It was whether these earlier conversations, conthe last act of a continuing agency, with strued in the light of what was done under the defendant the master and Stein the them, made out a general conspiracy. It servant.

is no sufficient answer to say that the first To say that the people could not prove fire in the defendant's house was started these things, that they were cabined and con- by someone else. That fire was referred to fined within the bounds of this isolated merely to explain the defendant's mention transaction, is to shut out from the con- of it when employing Stein to set the fire sideration of the jury a body of truth most at Ledermann's. In this there was no error, plainly helpful in reaching a right judg. and certainly none that could have affected ment. Only some overmastering principle the result. When once it is conceded, howor precedent should lead us to declare that ever, that the initial conspiracy might be our law of evidence withdraws from the proved, it is impossible to uphold the conjury these aids to a sound conclusion. I clusion that later instances of its renewal am persuaded that no such principle or should have been omitted. If the people precedent obstructs us here.

had the right to prove how the criminal It is a mistake to say that, in proving agency began, they must have had the right the course of dealing between the defend to prove the perpetuation of that agency ant and Stein, the people's effort was to during the intervening years. If it was demonstrate that, because the defendant lawful to prove a criminal compact once, it had committed other crimes, he was the did not become unlawful to prove that it kind of man that would be likely to com- was reaffirmed a dozen times. Indeed, it mit this crime. People v. Shea, 147 N. Y. might well have been argued that a con78, 41 N. E. 505; Makin v. Atty. Gen. spiracy formed in 1909 was too remote, in [1894) A. C. 57, 64, 63 L. J. P. C. N. S. 41, the absence of evidence that it was kept 6 Reports, 373, 69 L. T. N. S. 778, 17 Cox, alive as a continuing relation. To that C. C. 704, 58 J. P. 148. That they had no single end the people's evidence was directed. right to do, and that they did not attempt It would be useless to prolong the discusto do. They proved the course of dealing sion by the analysis of the cases. The leadin order to establish the origin and scope of ing authorities are well known. The doubt the agency,-in a word, to establish a con- is in their application. One case, however, spiracy; and they did not lose the right to I may refer to as supporting my own view. prove this because the result was to prove | It goes farther, perhaps, than we are rethat other crimes had been committed. quired to go here, for there the separate Com. v. Scott, 123 Mass. 222, 234, 235, 25 crimes were not so closely, welded together Am. Rep. 81; Com. v. Blood, 141 Mass. 571, by proof of an agreement unifying them in 575, 6 N. E. 769. The relation of agency their origin. It is the case of People v. between two men is sometimes the result of McLaughlin, 2 App. Div, 419, 37 N. Y. Supp. an express mandate. It is as often the prod-1005, id. 150 N. Y. 365, 44 N. E. 1017. Mcuct of a course of dealing. It is many times Laughlin, a police captain, was charged with a composite of both factors. In criminal extortion. The charge was that he had colas in civil trials neither factor may be ex- lected the money through an agent, Burns. cluded. If at the first meeting between the To confirm this, the people offered evidence defendant and Stein they had agreed in so that Burns had acted as the defendant's many words that Stein would set fires when agent in many similar cases, and that there ever the defendant ordered them, the pro- was a general scheme by which, through priety of admitting such evidence would this division of labor, they were to practise not, I think, be doubted by anyone. Their extortion in their precinct. At the appelconversation was not so explicit; it had, late division it was held by a unanimous therefore, to be interpreted in the light of court that the evidence was proper. Wilthe events that followed; and so interpre- liams, J., writing for the court, said (2 ted its meaning was no longer doubtful. App. Div. 433): “The evidence here was The scope of a conspiracy may be made out, given, not for the purpose of raising a prenot merely by what is said in its inception, sumption that the defendant committed but also by what is done in its develop- this crime because he had, before this, been ment. Reg. v. Murphy, 8 Car. & P. 297. guilty of other crimes of a like nature. . The When we view the totality of the acts, we prosecution sought to prove such agency of perceive the nexus of the common scheme. Burns. They could not be expected to do The people were not restricted to proof of this by direct evidence. They must prove an employment the day before the fire. it, if at all, by circumstantial evidence: They were not restricted to proof of an em- and this might properly be done by giving ployment in and through a single conver- any proof that tended to establish such sation. They could prove earlier conversa criminal agency, notwithstanding the evitions and leave it for the jury to say'dence given also tended to prove other distinct crimes to have been committed by the ciple has no place in criminal jurisprudefendant through the agency of Burns. dence. From such evidence in civil actions The only question is whether the evidence a presumption is raised that the relation received of these prior transactions was shown to exist in other transactions concompetent and proper as circumstantial tinues, or an estoppel is created which preevidence tending to establish the fact sought vents the principal from denying the agency, to be proved. The rules of evidence are and hence is presumptive or conclusive evithe same in criminal cases as in civil cases, dence of that fact. No such presumption except as otherwise provided in the Code of or estoppel arises in a criminal case. There Criminal Procedure (§ 392). It is common the presumption is of innocence, and the in civil cases to establish agency by show. doctrine of estoppel has no application.” ing the relations of the parties in other (P. 391.) transactions than the one in issue in the A majority of the court did not concur case on trial, by showing other transactions in holding that proof of similar transacrelating to the same business and extend- tions was inadmissible in such conditions. ing over months and years when the parties Andrews, Ch. J., Bartlett and Vann, JJ., held the relations of principal and agent, expressed no opinion on that point, and and we see no reason why the same rule Gray, J., dissented. We are thus left free to of evidence may not be applied in this reach our own conclusion, unfettered by any case. The suggestions made by the learned adverse precedent. trial judge in his charge upon this subject, There is no difference between civil and and explaining the purpose for which this criminal trials in respect of the kind of evidence was received, seem to us to have evidence available to make out a criminal been proper and correct. The evidence giv- agency, which is merely another word for en tended to show that these men occupied a criminal conspiracy. The agency that the same official relations to each other will subject the employer to criminal liaduring the years 1888, 1889, 1890, and 1891, bility must, of course, be an actual agency; prior to the alleged commission of this i. e., the agent's authority must be actual, crime, and that they were engaged in this and not merely apparent. An agency by same general scheme of extortion, Burns estoppel will not suffice. But an actual acting under the advice, commands, and agency may be established by proof of what procurement of the defendant, apparently men have done as well as by proof of what in pursuance of such general scheme, and they have said. Blake v. Albion Life Assur. that the defendant, in conversations had Soc. L. R. 4 C. P. D. IV. 94, 109, 110, 48 with him, practically conceded such agency L. J. C. P. N. S. 169, 40 L. T. N. S. 211, 27 in such prior transactions. We have no Week Rep. 321, 14 Cox, C. C. 246; United doubt but that the evidence of the transac- States v. Cole, 5 McLean, 513, 601, Fed. tions themselves was competent in connec- Cas. No. 14,832; Martin v. Niagara Falls tion with the conversations so testified to, Paper Mfg. Co. 122 N. Y. 165, 175, 25 N. as tending to establish the agency of Burns E. 303; Hanover Nat. Bank v. American for the defendant in the commission of the Dock & Trust Co. 148 N. Y. 612, 621, 623, erime for which the defendant was being 51 Am. St. Rep. 721, 43 N. E. 72; Martin v. tried.”

Webb, 110 U. S. 7, 28 L. ed. 49, 3 Sup. Ct. When the case of People v. McLaughlin, Rep. 428. The same kind of evidence that 150 N. Y. 391, 44 N. E. 1025, reached this will tend to sustain an inference of actual court, it was reversed on other grounds. agency in civil trials will tend to sustain The opinion of Martin, J., does, it is true, it in criminal trials. The same kind of contain a discussion of this subject. “The evidence admissible to prove conspiracy in charge of the learned trial judge,” he says, the one instance is admissible in the other. "seems to indicate that he entertained the Truth is the same whether we seek it at opinion that what he denominated 'criminal the civil or at the criminal bar, and it is agency' could be established in the same apprehended in subjection to the same laws way, and by the same species of evidence, of logic. The criminal law is not to be as may be employed in a civil action to es treated as a thing apart and by itself. The tablish the relation of principal and agent command of the statute is that "the rules in favor of third persons. We think no such of evidence in civil cases are applicable also rule exists. We find no principle of crimi- in criminal cases, except as otherwise pronal law which recognizes the relation of vided in this Code.” Code Crim. Proc. § 392. principal and agent in the sense in which The same rule prevails in England, and the term is used in reference to business or eminent judges have deplored the fact that commercial transactions. It is true that it is sometimes overlooked. Rex v. Rodley, in civil actions upon contract, the course [1913] 3 K. B. 468, 472, 82 L. J. K. B. N. of dealing between parties may be proved s. 1070, 109 L. T. N. S. 476, 77 J. P. 465, to establish a general agency, but that prin- | 29 Times L. R. 700, 58 Sol. Jo. 51. It is

cases.

not an adequate answer to say that in crim- The judgment of conviction should be at. inal prosecutions there is the presumption firmed. of innocence. That presumption does not destroy the efficacy of circumstantial proof. Cuddeback and Miller, JJ., concur with In the language of the court in Dunlop v. Cardozo, J. United States, 165 U. S. 486, 502, 41 L. ed. 799, 804, 17 Sup. Ct. Rep. 375: "If it were broadly true that the presumption of in

NEW YORK COURT OF APPEALS, nocence overrides every other presumption, except those of sanity and knowledge of the

PEOPLE OF THE STATE OF NEW law, it would be impossible to convict in

YORK, Appt., any case upon circumstantial evidence, since the gist of such evidence is that certain

JOHN THOMPSON, Respt. facts may be inferred or presumed from proof of other facts.”

(212 N. Y. 249, 106 N. E. 78.) In criminal as in civil causes it is legitimate to argue back from individual acts to Evidence criminal prosecution a scheme that underlies them. The true subsequent similar acts. rule was tersely stated by Best, J., in Rex Upon a prosecution for statutory rape, v. Burdett, 4 Barn. & Ald. 95, 121, 122: evidence of subsequent acts of intercourse “It has been said that there is to be no between prosecutrix and accused is admispresumption in criminal cases. Nothing is sible if they are so related by brevity of so dangerous as stating general abstract to the principal act, as to justify the infer

time, continuity of lewdness, or otherwise, principles. We are not to presume with ence or indicate that the mutual disposition out proof. We are not to imagine guilt of the parties evidenced by them existed at where there is no evidence to raise the pre- the time of such act. sumption. But when one or more things are proved, from which our experience enables

(July 14, 1914.) us to ascertain that another, not proved, must have happened, we presume that it A "the Appellate Division of the Supreme did happen as well in criminal as in civil If the rules of evidence pre

Court, Second Department, reversing a judg. scribe the best course to get at truth, they ment of the County Court for Kings County, must be and are the same in all cases, and convicting defendant of rape in the second in all civilized countries. There is scarcely degree, and granting a new trial. Reversed. a criminal case, from the highest down to

The facts are stated in the opinion. the lowest, in which courts of justice do not

Mr. Edward A. Freshman, with Mr. act upon this principle.”

James C. Cropsey, for appellant: Evidence of sufficient weight to make out

There was no error in the reception of the an agency in civil trials may lack the testimony as to other similar acts. weight essential to a conviction in criminal

1 Whart. Crim. Ev. 10th ed. $ 42, 11th ed. trials; but evidence is not incompetent be- $ 735; People v. Grauer, 12 App. Div. 464, cause, standing alone, it is inadequate. "It 42 N. Y. Supp. 721; Underhill, Crim. Ev. 2d may be that a piece of evidence admissible ed. & 381; People v. Freeman, 25 App. Div. in either class of cases may not be sufficient 583, 50 N. Y. Supp. 984. in a criminal case,

that is, without

Messrs. George W. Martin and David further evidence; but the evidence is not the F. Price, for respondent: less admissible.” Grove, J., in Reg. v. Mal

Testimony of subsequent offenses to the lory, 15 Cox, Cr. 460, quoted in Wigmore, the defendant upon the person of the com

one charged in the indictment, committed by Ev. vol. 1, § 4.

plainant, was inadmissible. Subject to the qualification that the conclusion is to be established with greater N. Y. Supp. 817; People v. Robertson, 88

People v. Farina, 134 App. Div. 110, 118 certainty in respect of crimes, the process App. Div. 198, 84 N. Y. Supp. 401; People of inference, regardless of the subject of

v. Flaherty, 162 N. Y. 532, 57 N. E. 73; the controversy, remains the same. I think

People v. Bills, 129 App. Div. 798, 114 N. Y. that the evidence of the past relations be- Supp. 587; People v. Freeman, 25 App. Div. tween Stein and the defendant was proper- 583, 50 N. Y. Supp. 984; People v. O'Sullily received.

van, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. Other rulings have been complained of; but, if they involve technical error, they

Note. - As to evidence of other crimes in are not sufficiently substantial to affect the prosecution for rape or assault to rape, sce

note to People v. Gibson, 48 L.R.A.(N.S.) justice of the verdict. Code Crim. Proc. 236, and references there made to earlier $ 542.

notes.

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