(116 A.)

date so that he will be able to mark the eleva- | amounted to $1,311.73, as by the opinion of the tions which you give us. city solicitor under date of April 1st, 1914, he advises me that all of this work should be charged to your company.

"December 31, 1915. fied in chief that the raising of the grade of the Fallsway 300 feet north of Eager street at the request of the railroad company involved the raising of the Fallsway at Eager street, and that involved the raising of the grade of the bridge west of the Fallsway.

"Mr. Charles W. Nagle, Auditor, Water Engr's Dept., Baltimore, Md.-Dear Sir: In reply to your letter of December 20, 1915, I would advise you that your bill for relocating the 30-inch water main, etc., on Eager street, amounting to $1,311.73, has not been paid for the reason that we do not think it is proper that this bill should be made out against the railroad company. We have had this matter up many times with the water engineer's department, and this morning my representative met Mr. S. S. Field on the ground and explained the matter to him. Mr. Field was very much surprised at what we told him, and stated that he would take the matter up again with your department, as he certainly had been told that this water pipe had been lowered in order to permit the railroad company to get a proper grade on Eager street, while I am sure that you are well aware that the elevation of the water pipe has not been changed in the slightest degree from that which it has always been in, and that the railroad company raised the floor of its bridge over Eager street, west of the Fallsway, in order to cover this pipe, which formerly projected above the roadway, this being done at the request of the city engineer and at the expense of the railroad company. "Yours respectfully [Signed] G. Latrobe,

'Genl. Agt. & Supt."

It will be seen from this correspondence that no one controverts Mr. Latrobe's assertions that no changes of any kind in the pipe line west of the Fallsway were required by any work of the railroad company, and the company "made no change of any kind or description in our bridge west of the Fallsway that could have possibly made the water department spend one dollar on their pipe had they not desired to make some change in it."

There was a conflict in the oral testimony as to whether or not the pipe was actually lowered. Mr, McKay, the city engineer, testi

It is perfectly evident, however, from his testimony on cross-examination, that the only reason it was necessary to change the location of the pipe was to change the condition that has always existed there of having part of the pipe above the floor of the bridge. He admitted that when the new bridge was built about the same time the city constructed its pipe above the floor, and thus divided the east end of the bridge into two driveways, and the only answer he could give to the question why the change which he said was necessary on the west end of the bridge was not necessary on the east end was that Mr. Hendrick, and not the witness, had charge of the work on the east end. The witness, however, was forced to admit he had approved that work. He also admitted that the city had originally located the pipe above the floor of the west bridge, but said that was done as a matter of economy.

On all the evidence in the case we are satisfied that the trial court erred in refusing to grant the first prayers of the defendant, withdrawing the case from the jury.

It may be that good engineering required that the pipe should be entirely under, rather than partly over, the floor of the bridge; but, however that may be, we are quite sure the change could not be made at the expense of the defendant; there being no such requirement in the contract, and no necessity for it, resulting from anything that was done at the request, or for the benefit of the defendant.

Judgment reversed without a new trial, with costs to appellant.

(116 A.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 116 A.-55

PARKER, J. The defendants, husband | other contents of the house, and found oiland wife, were convicted on an indictment soaked mattresses, clothes with oil or gasofor arson, charging them with willfully and line on them, signs of gasoline in the closets maliciously burning and causing to be burn- and in various parts of the house, pig bladed the dwelling house of the said Peter ders and automobile inner tubes filled with Duelks and Catherine Duelks, then and there gasoline or inflammable oil; also other matbeing. As the indictment originally read, ters apparently indicating preparation. On the dwelling house was stated to be that of cross-examination he testified that these one Delmonte; the change, consented to by preparations must have taken "quite some defendants, being apparently prompted by the time"; that he did not think it could have fact that the dwelling house, though owned by been done in half an hour; asked if it would Delmonte, was rented to and occupied by the consume an hour, working continuously, he defendants. The amendment of 1919 to sec- answered: tion 123 of the Crimes Act (P. L. p. 257) enlarges the scope of the act by the words, "whether it [the dwelling house] be his own or that of another," so that the arson charged was in burning their own dwelling house. No doubt this change in the statute was due to the decision in State v. Lentz, 92 N. J. Law, 17, 107 Atl. 791.

"That I couldn't say. Q. I am asking you; you are in a better position than I and the jurymen."

This was objected to, as the chief had not qualified as an expert, and excluded. We incline to agree that he was not shown an expert on incendiarism, but a better answer to the argument now made is that the question had been answered once, and that was enough.

[4] The next point relates to the testimony of Philip Feuerstein, a professional insurance adjuster and appraiser of fire losses with nearly 20 years' experience. He was asked to put a valuation on a bed and mattress at the place in question, and this was objected to. He was cross-examined on his

[1] The first point argued is that the court required defendants to go to trial without having been served in due course with a list of the state's witnesses. Section 54 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1837) requires, in cases of treason, the service of a copy of the indictment and a list of the jury and witnesses; but in cases of murder and certain other crimes, including arson, requires service of a copy of the indictment and list of the jury, say-qualifications, and plainly appeared fully ing nothing about witnesses. The language of the act is perfectly plain, and defendants' objection was clearly not well taken.

[2] The next point relates to the exclusion of a question on cross-examination of one Pierson, a state's witness. Pierson testified that he had written a fire policy covering the personal property on the premises as agent for an insurance company, and the policy was received in evidence without objection. On cross-examination he stated that it did not strike him as unusual that $3,000 insurance was asked for, at the present time. He was then asked:

"Q. You had no doubts in your mind at the time you wrote the policy but that there were $3,000 worth of property?"

qualified so far as related to disputes and settlements between the insurer and insured, but the objection was pressed on the ground that he was not qualified for purposes of trial of a criminal indictment. We are quite unable to see how this affects his qualifications; if he was an expert on such valuations for any legal purpose, his qualification was valid in any judicial investigation in which he might be called.

[5] The fifth point argued also bears on the matter of value of some of the burned property. Defendant Peter Duelks was asked on cross-examination what he had paid for certain furniture several years previous to the trial. This was objected to, and the objection overruled, and it is claimed that This was objected to and excluded, and the value of the property several years bewe think properly, as what he may have fore writing the policy is not competent on thought at the time of insuring was quite the question of value at the time the policy irrelevant to the issue on trial. It is argued was written. But we think the rule is settled that the state claimed overinsurance as a to the contrary. In Luse v. Jones, 39 N. J. motive, and that the answer might have tend-Law, 707, in the Court of Errors and Aped to negative the theory of overinsurance; peals, Justice Dixon, speaking for the court, but the answer to this is that the opinion of the agent or broker at the time of insuring was not competent as an index of actual value. [3] The next point arose on the cross-ex-cost was the price at which a regular dealer in amination of Mr. Brewster, chief of the local amination of Mr. Brewster, chief of the local fire department, who testified on direct examination that during, and especially after,

said:

"The first exception insisted upon is, that the plaintiff was allowed to prove the cost of a bedstead, as tending to show its value. This

such articles had sold it when new, in the ordinary course of trade. A sale so made was evidence of the market value of the thing when new, and the value of such goods when worn

(116 A.)

to the former price and the extent of deprecia- [ to see how defendant was harmed by anytion. Of course, the cost alone would not be a thing developed on the cross-examination just criterion of the present value, but it would which would necessarily have appeared in constitute one element in such a criterion, and the record. the attention of the jury in this case was clearly directed to the importance which it deserved to have."

So, in Budd v. Van Orden, 33 N. J. Eq. 143, at pages 146, 147, Vice Chancellor Van Fleet, said:

"The only absolute test we can have of the value of a merchantable article is what it has been sold for at a fair sale. All other means of ascertaining the value of a merchantable commodity are speculative, and must, to a greater or less extent, be uncertain."

And in Goodman v. Lehigh Valley Railroad Co., 82 N. J. Law, 450, at page 456, 81 Atl. 848, at page 851, in the Court of Errors and Appeals, where the value of certain buildings was in question, the court said:

"The evidence as to cost of the farm buildings was clearly admissible on the question of damages. Of course, the cost was not the measure of damages, but such cost is a fact to be considered in ascertaining the fair value of the buildings at the time of the fire and from that the depreciation in value of the farm by reason of the fire."

[7] The seventh point relates to several questions asked on the state's cross-examination of defendants' witness Yesneck Thomas, who said he had known the defendants about a year or two. "Q. You never heard of his pleading guilty to a crime of receiving stolen property last November?" This was objected to, allowed, but not answered. "Q. Do you know what the plea of non vult is? A. I do not know. Q. Do you know that it is equivalent to guilt?". This was objected to, but there was no ruling, and it was not answered. The next question was objected to and overruled. Then followed this question: "Q. Did you ever hear that the defendant entered a plea of non vult to the charge of receiving stolen goods? A. No, sir. Q. You never heard of that? A. No, sir." There seems to have been no objection to either of these questions, and the form in which they were put seems to meet the objection previously made, which was to the included statement that a plea of non vult means a plea of guilty. The next question was this: "Q. If you had, would you say that his reputation was good?" This was objected to, allowed, and defendant took an exception, and this is argued as erroneous, but we think the point need not be decided, because the witness answered, "I don't know nothing about it," and being pressed further on that line, reiterat

Such is also the rule in New York, as laid down in Jones v. Morgan, 90 N. Y. 4, at page 10, 43 Am. Rep. 131, where the cost of furniture bought in 1868 and 1869 was held evidential on the question of its value in 1875. The period over which the inquiry may be extended is ordinarily within the sound dis-ed that he couldn't say. All this, while percretion of the court. Montclair Railway Co. haps unnecessary, seems to have been harmv. Benson, 36 N. J. Law, 557. See, also, 22 C. J. 183, § 135. The questions were entirely competent.

[6] The sixth point argued relates to the cross-examination of defendant Peter, tending to show a previous conviction of crime, for the purpose of affecting his credit, as contemplated by section 1 of the Evidence Act (C. S. p. 2217). The question asked was this:

"Q. Mr. Duelks, you were under indictment for the crime of receiving stolen goods in October, 1920; and didn't you enter a plea of non vult to this crime, and the verdict of this court was that it imposed a fine of $150?"

less.

[8] The eighth point argued for reversal is that the court charged the jury, in part, as follows:

"I charge you that within the meaning of the statute if defendants occupied this house as a dwelling house, being occupants as tenants, and if they are guilty of setting fire to this house, then the conditions of the statute are fulfilled; it becomes and was their dwelling house within the meaning of the statute-so that the offense has been committed."

The alleged vice in this instruction relates to the clause that reads, "And if they are The attack is on the inclusion of the clause guilty of setting fire to this house, then the relating to the fine, and it is said that it was conditions of the statute are fulfilled," the improper to put this before the jury. It is point made being that the judge failed to true that it was unnecessary to prove the use the words "willfully" and "maliciously.” sentence as part of the "conviction" (State Technically, it would have been proper and, v. Henson, 66 N. J. Law, 601, 607, 50 Atl. no doubt, better to have done so; but the 468, 616; Hill v. Maxwell, 77 N. J. Law, whole trend of the charge was unmistak766, 73 Atl. 501; State v. Runyon, 93 N. J. able, and by no effort of the imagination Law, 16, 107 Atl. 33, 109 Atl. 925; Id., 94 N. J. could it be said that the jury would infer Law, 265, 109 Atl. 925), but the fact remains that the defendants were guilty of a crime that if the record of the "conviction" had by the accidental or unintentional or nonbeen produced, which is the alternative malicious firing of the house. The effect of method provided by the statute, it would the amendment of the statute already referhave shown the sentence, and we are unable red to is somewhat drastic. It apparently