court cannot clearly perceive its relevancy, the benefit of the doubt should be given to the defendant instead of permitting jurors to become prejudiced by independent facts which carry with them no proper proof of the particular crime charged. As we have already had occasion to observe, the subject is one which cannot be treated with dogmatic or scientific precision. In the final analysis the application of the gen

lish the existence of a conspiracy between them for the making of fires in which Stein was to be the actual incendiary and the defendant was to assist in the adjustment of the losses and the collection of the insurance, while both were to receive stipulated shares of the proceeds. To the extent that this testimony was directed to the establishment of a general plan or scheme which resulted in the Gold fire charged in the indictment, it was clearly competent, and iteral rule and its recognized exceptions must may be stated in passing that there was evidence of this nature which was ample to support the verdict convicting the defendant. This testimony was competent because it bore directly and cogently upon the defendant's guilt of the crime charged through the criminal agency of Stein.

depend upon the special facts. In concluding our discussion of this branch of the case we deem it proper to add that the antithesis of the case at bar is to be found in the case of People v. Duffy, 212 N. Y. 57, L.R.A. 1915B, 103, 105 N. E. 839, in which a police officer in the city of New York was conThere it appeared that the accused had received from a certain individual a sum of money as a bribe. It was received under circumstances which rendered it proper, if not necessary, to give evidence of the defendant's guilty intent. It was shown, moreover, that the specific sum which the accused there received was but one of many contributions which had been regularly levied upon the proprietors of various resorts and establishments under a general plan or system. There proof of the system was cogent and competent evidence of the guilty character of the particular act. In the case at bar there was no such connection, and this is the determining difference between the two.

We have yet to consider, however, wheth-victed of bribery. er the evidence as to other specific fires tended to prove the felonious origin of the fire set forth in the indictment. In that connection we must not overlook the fact that each of the nine other fires was a separate and independent transaction, entered into as the occasion arose, and not in pursuance of any preconcerted general plan or design. There was between them no such relation of time, place, or circumstance that the bare evidence as to the origin of any one of these fires, in and of itself, tended to prove the origin of the Gold fire. The Ledermann fire, according to the testimony of Stein, occurred in the latter part of 1909. The time of the Greenberg, Goldberg, and Sardoff fires is not fixed. The fires of Shapiro, Wasserman, Titelbaum, and Dreier are said to have taken place respectively in April, June, July, and November of 1910. Each was the subject of a separate and distinct conversation or understanding based upon the particular occasion as it arose. None had any relation to the Gold fire, except that all are said to have sprung from the general agreement between the defendant and Stein. It is to be noted, also, that the evidence as to these other fires is quite unsatisfactory. Excepting Gold, not one of the persons whose property is said to have been damaged or destroyed by fire was called as a witness, and Stein's testimony was very uncertain as to the places where these several fires occurred. From the prejudicial nature of such evidence as was given by Stein of other separate fires in which the defendant is said to have been concerned, it is obvious that it should not have been received unless the perpetration of any or all of these acts tended, by visible connections, to prove the defendant's complicity in the crime charged in the indictment, and we think we have demonstrated that it had no such effect. Even in a case where evidence of this kind is so dubious that a

Since there must be a new trial, we shall consider two other minor errors in order that they may not be repeated. Aside from Stein, the principal witnesses against the defendant were Gold, Mrs. Gold, and one Roch. Defendant's counsel tried to show that these witnesses were ill-disposed toward the defendant, and on their several cross-examinations he had interrogated them as to certain hostile acts and expressions against the defendant which they either denied, or explained with some equivocations. When the defense had the case several witnesses were called by whom the defendant's counsel sought to prove the hostile expressions and acts against the defendant which the witnesses Gold, Mrs. Gold, and Roch had, on their cross-examinations, either denied or explained. The trial court ruled that this evidence was inadmissible. It is probably fair to assume that this ruling was not predicated upon the idea that evidence of this character is never admissible, but rather upon the ground that counsel's questions were inartificial or insufficient. Of this feature of the case it is enough to say that evidence of this character is generally competent, but whether it is brought within the rule governing the subject can only be de

cided in the light of the conditions under which the question arises. Defendant's counsel called a witness to contradict Gold as to certain hostile expressions which it is claimed the latter had made against the defendant. Before the counsel could complete his question the court ruled against him, and it is therefore not clear whether the evidence should have been received. It is plain, however, that the counsel should have been permitted to state his question to the witness.

the man.' The very terms in which the order was given presuppose some antecedent understanding. Its laconic phrases are equivocal, if not incredible, unless they are related back to some initial compact and some established course of dealing. The people were not required to leave the jury with the impression that suddenly, out of a clear sky, there came from the defendant the order to commit this crime. The jury had a right to know when and how and for what purposes these men had been associated in the past. Only through that knowledge could they judge of the verity of the charge that Stein, in committing this crime, was doing the defendant's bidding.

The people undertook, therefore, to exhibit the relation between the defendant and Stein in its origin and growth. The origin was in 1907, more than two years before the crime charged in this indictment. Stein, who was a painter, was employed to do some painting in the defendant's flat. A fire occurred there, and Stein was instructed by the defendant to say to the fire marshal that no one was in the house at the time. That fire was started by another man, one Titelbaum. More than a

The district attorney called as a witness one De Malignon, who was an assistant fire marshal in the city of New York. In his official capacity he had visited the Gold premises and investigated the fire. He was asked to give his opinion of the origin of the fire, and in answer he enumerated a number of facts which it was quite proper for him to state and which he stated "indicated to my mind the fire was set." The question put to this witness was shorn of much of its harmful effect by the nature of his answer, which was quite unobjectionable with the exception of the conclusion which we have quoted. This is not a case for expert opinion. The physical facts, which are the subject of investigation, are so sim-year later, in 1909, the defendant met Stein ple that they can be readily understood when properly described, and it is then for the jury to draw the appropriate conclusion.

The judgment of conviction should be reversed, and a new trial ordered.

again and suggested that they work together. He said that there was money to be made in fires, and that there was no risk of detection. He referred to the fire in his own house, and said that no trouble had

come of it. Thus tempted, Stein yielded. He set fire to the apartment of one Leder

Willard Bartlett, Ch. J., and Hiscock mann; and, afterwards, to many others. and Collin, JJ., concur.

Cardozo, J., dissenting:

I dissent from the judgment about to be pronounced in this case.

"You can go ahead," said the defendant, "and make fires, and there is money to be made here, and do not have any fear, and this is the easiest way to make money." 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 jobs 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

a presumption is raised that the relation shown to exist in other transactions continues, or an estoppel is created which prevents the principal from denying the agency, and hence is presumptive or conclusive evidence of that fact. No such presumption or estoppel arises in a criminal case. There the presumption is of innocence, and the doctrine of estoppel has no application." (P. 391.)

A majority of the court did not concur in holding that proof of similar transactions was inadmissible in such conditions. Andrews, Ch. J., Bartlett and Vann, JJ., expressed no opinion on that point, and Gray, J., dissented. We are thus left free to reach our own conclusion, unfettered by any adverse precedent.

tinct 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 received of these prior transactions was competent and proper as circumstantial evidence tending to establish the fact sought to be proved. The rules of evidence are the same in criminal cases as in civil cases, except as otherwise provided in the Code of Criminal Procedure (§ 392). It is common in civil cases to establish agency by showing the relations of the parties in other transactions than the one in issue in the case on trial, by showing other transactions relating to the same business and extending over months and years when the parties held the relations of principal and agent, and we see no reason why the same rule of evidence may not be applied in this case. The suggestions made by the learned 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, crime 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. Rep. 428. The same kind of evidence that will tend to sustain an inference of actual agency in civil trials will tend to sustain it in criminal trials. The same kind of evidence admissible to prove conspiracy in the one instance is admissible in the other. Truth is the same whether we seek it at the civil or at the criminal bar, and it is apprehended in subjection to the same laws of logic. The criminal law is not to be treated as a thing apart and by itself. The command of the statute is that "the rules of evidence in civil cases are applicable also in criminal cases, except as otherwise provided in this Code." Code Crim. Proc. § 392.

When the case of People v. McLaughlin, 150 N. Y. 391, 44 N. E. 1025, reached this court, it was reversed on other grounds. The opinion of Martin, J., does, it is true, contain a discussion of this subject. "The charge of the learned trial judge," he says, "seems to indicate that he entertained the opinion that what he denominated 'criminal agency' could be established in the same way, and by the same species of evidence, as may be employed in a civil action to establish the relation of principal and agent in favor of third persons. We think no such rule exists. We find no principle of criminal law which recognizes the relation of principal and agent in the sense in which the term is used in reference to business or commercial transactions. It is true that in civil actions upon contract, the course of dealing between parties may be proved to establish a general agency, but that prin

The same rule prevails in England, and eminent judges have deplored the fact that it is sometimes overlooked. Rex v. Rodley, [1913] 3 K. B. 468, 472, 82 L. J. K. B. N. S. 1070, 109 L. T. N. S. 476, 77 J. P. 465, 29 Times L. R. 700, 58 Sol. Jo. 51. It is

must have happened, we presume that it the Appellate Division of the Supreme