Williams, J.:
The judgment should be reversed,'the verdict set aside, and a new trial’granted.
The indictment was filed, December 7, 1903, and charged the crime as having been committed November 19,1903, at Little Falls, N. Y- The building, burned was owned by one Oonyne, and occii[491]*491pied by the defendant as a furniture store. It contained a stock of goods owned by defendant. The building was insured for $9,500, and the goods for $13,000. The intent alleged was to destroy the property and tb secure the insurance money.
The trial- commenced March 17, 1905, and continued until March 24, 1905, when the verdict was' rendered. A motion for a new trial was made upon the minutes of the court, upon the ground that the verdict was contrary to the evidence and the law, and upon exceptions to the admission and rejection of evidence and to the charge. This, motion was denied.
While the record may not show the facts, still it was stated upon the argument that the defendant Jones had been tried and convicted, and was serving his term in State prison, the case having been affirmed by this court (People v. Jones; 100 App. Div. 511) and by the Court, of Appeals (181 N. Y. 516), and that two prior trials of this defendant had been had, resulting in disagreement of the juries. The court, in the course of _the charge, referred to the former trials that had taken place.
We have examined and considered the evidence contained-in this record, and conclude that the verdict was not, within well-established rules, so contrary to or against the weight of the evidence as to require the reversal, of the judgment for that reason. The questions of fact were close, however, as appear not only from an examination of the record but from -the -fact that on two former trials the juries were unable to agree upon a verdict of guilty. This being so, we are called upon to consider carefully the exceptions taken during the trial with a view to determining whether the rights of the defendant were fully protected, or whether his conviction was, or may have been, brought about by reason of error committed by the court in the conduct of the trial. Our attention is called to various alleged errors, which we will consider.
1. For some years prior to 1901 the defendant resided and car- _ ried on business at Fulton, Oswego county, and the defendant Jones was in his employ there. In 1901 the defendant removed to Syracuse and carried on business there for about a year, and the defendant Jones was" in his employ there also. He then removed to Little Falls and went into business there, and so continued until the fire in- question took place, and the defendant [492]*492Jones wás in his employ at that place. There was a jire in defendant’s store at Little Falls ¡November 10, 1903, only a few days before .the fire in question, but it was extinguished before a" great dpal of damage was done. An insurance adjuster came, to Little Falls ¡November 17,1903, and' had a talk With defendant, and early in the trial this adjuster, was called as a Witness for the People, and' gave ■the following evidence under defendant’s objection and. exception : “ I asked Mr. Brown' if he was the man who had a fire at Syracuse. He replied yes. I asked him if he was the man who had a fire at Baldwinsville. * * * He .replied yes, bút that -his brother occupied that building. I asked him if he was the man who had the fire at Fulton, and he replied yes.” After this evidence had been given defendant moved to strike it out, and the motion was denied, with exception. Other evidence was given by the witness relating to the loss of ¡November 10J 1903, but was in no -way connected with the evidence so objected to.' Later in the trial the. defendant' called his brother and offered to show by him that when the fire at Baldwinsville took place he 'Occupied" the building. This was objected tó by the district .attorney, and the Objection sustained with exception. It can' hardly be doubted that the reception of this evidence and the refusal to strike it otit was erroneous, especially in' view of the refusal to allow the defendant to make an explanation by his brother, favorable to himself, as to the Baldwinsville fire. The People were permitted by this evidence to show that the defendant during the two years prior to .the time of .'the fire in question had. had fires at Fulton, at Baldwinsville and at Syracuse, in addition to the fire at Little Falls. These, fires were shown by,the most satisfactory evidence possible, the admissions of the defendant himself, which he could not controvert unless he went upon the stand as a witness himself, and' he was not permitted to prove' by- his brother that "one of these fires was not his. It Was not offered to prove by the brother that the Baldwinsville fire was not incendiary, but that it was' not defendant’s fire at all, it was his brother’s, and this even was refused. There is no theory upon which this -evidence was admissible, unless it was upon -the question of motive, or " intent to Commit the crime in question. " We are unable to see'how it was material for. any such purpose. The transaction between these- parties, including the conversation with reference to Iris loss [493]*493in the tire of November 10, 1903, may have been competent in the case, it was not objected to any way, but the evidence which was objected to was not competent, merely because the transaction generally and the other conversation were. It did not creep in incidentally, as is now claimed. Its reception was persistently objected to, and a struggle was made to have it stricken out after it had been admitted. The district attorney'insisted upon its reception and Petention, and the court ruled' with him. The evidence had no proper bearing upon the question of motive or intent. It was very dangerous evidence in the case. It was not harmless, as now claimed. It must have had a serious effect upon the minds of the jury, and may well have induced a verdict of guilty, which would not otherwise have resulted. In a close case like this, jurors were liable to reason that the defendant had recently had so many fires in his buildings that he must have been responsible for them, and very likely' was liable for this fire in question. The jury would necessarily regard this evidence as important because of the struggle to get it in the case and to keep it out. No instruction was given by the court limiting the effect to be given to it. On the contrary, in the charge they were instructed that they should carefully consider all the evidence in the case and base their verdict on such evidence. What use the district attorney made of this evidence in his address to the jury does not appear. He had a right to'call the attention "of the jury to- the fact that the defendant had had all these former fires in his buildings, as circumstances in the case, because the evidence was admitted and retained without any limitation as to its effect or any instruction to the jury as to the force they should give to it. We cannot say that the jury did not conclude that the defendant was guilty of causing this fire by reason, among other considerations, of the fact that he had had so many fires in Ms buildings before. It is said that this evidence was given in the Jones case, and yet theré was an affirmance in that case by this court and by the Court of Appeals. In that case the evidence came into the case by way of the cross-examination of this defendant, who was a witness there. In this case the defendant was not a witness, and this evidence . was not given to affect his credibility as a witness, but as direct evidence of defendant’s guilt.
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Williams, J.:
The judgment should be reversed,'the verdict set aside, and a new trial’granted.
The indictment was filed, December 7, 1903, and charged the crime as having been committed November 19,1903, at Little Falls, N. Y- The building, burned was owned by one Oonyne, and occii[491]*491pied by the defendant as a furniture store. It contained a stock of goods owned by defendant. The building was insured for $9,500, and the goods for $13,000. The intent alleged was to destroy the property and tb secure the insurance money.
The trial- commenced March 17, 1905, and continued until March 24, 1905, when the verdict was' rendered. A motion for a new trial was made upon the minutes of the court, upon the ground that the verdict was contrary to the evidence and the law, and upon exceptions to the admission and rejection of evidence and to the charge. This, motion was denied.
While the record may not show the facts, still it was stated upon the argument that the defendant Jones had been tried and convicted, and was serving his term in State prison, the case having been affirmed by this court (People v. Jones; 100 App. Div. 511) and by the Court, of Appeals (181 N. Y. 516), and that two prior trials of this defendant had been had, resulting in disagreement of the juries. The court, in the course of _the charge, referred to the former trials that had taken place.
We have examined and considered the evidence contained-in this record, and conclude that the verdict was not, within well-established rules, so contrary to or against the weight of the evidence as to require the reversal, of the judgment for that reason. The questions of fact were close, however, as appear not only from an examination of the record but from -the -fact that on two former trials the juries were unable to agree upon a verdict of guilty. This being so, we are called upon to consider carefully the exceptions taken during the trial with a view to determining whether the rights of the defendant were fully protected, or whether his conviction was, or may have been, brought about by reason of error committed by the court in the conduct of the trial. Our attention is called to various alleged errors, which we will consider.
1. For some years prior to 1901 the defendant resided and car- _ ried on business at Fulton, Oswego county, and the defendant Jones was in his employ there. In 1901 the defendant removed to Syracuse and carried on business there for about a year, and the defendant Jones was" in his employ there also. He then removed to Little Falls and went into business there, and so continued until the fire in- question took place, and the defendant [492]*492Jones wás in his employ at that place. There was a jire in defendant’s store at Little Falls ¡November 10, 1903, only a few days before .the fire in question, but it was extinguished before a" great dpal of damage was done. An insurance adjuster came, to Little Falls ¡November 17,1903, and' had a talk With defendant, and early in the trial this adjuster, was called as a Witness for the People, and' gave ■the following evidence under defendant’s objection and. exception : “ I asked Mr. Brown' if he was the man who had a fire at Syracuse. He replied yes. I asked him if he was the man who had a fire at Baldwinsville. * * * He .replied yes, bút that -his brother occupied that building. I asked him if he was the man who had the fire at Fulton, and he replied yes.” After this evidence had been given defendant moved to strike it out, and the motion was denied, with exception. Other evidence was given by the witness relating to the loss of ¡November 10J 1903, but was in no -way connected with the evidence so objected to.' Later in the trial the. defendant' called his brother and offered to show by him that when the fire at Baldwinsville took place he 'Occupied" the building. This was objected tó by the district .attorney, and the Objection sustained with exception. It can' hardly be doubted that the reception of this evidence and the refusal to strike it otit was erroneous, especially in' view of the refusal to allow the defendant to make an explanation by his brother, favorable to himself, as to the Baldwinsville fire. The People were permitted by this evidence to show that the defendant during the two years prior to .the time of .'the fire in question had. had fires at Fulton, at Baldwinsville and at Syracuse, in addition to the fire at Little Falls. These, fires were shown by,the most satisfactory evidence possible, the admissions of the defendant himself, which he could not controvert unless he went upon the stand as a witness himself, and' he was not permitted to prove' by- his brother that "one of these fires was not his. It Was not offered to prove by the brother that the Baldwinsville fire was not incendiary, but that it was' not defendant’s fire at all, it was his brother’s, and this even was refused. There is no theory upon which this -evidence was admissible, unless it was upon -the question of motive, or " intent to Commit the crime in question. " We are unable to see'how it was material for. any such purpose. The transaction between these- parties, including the conversation with reference to Iris loss [493]*493in the tire of November 10, 1903, may have been competent in the case, it was not objected to any way, but the evidence which was objected to was not competent, merely because the transaction generally and the other conversation were. It did not creep in incidentally, as is now claimed. Its reception was persistently objected to, and a struggle was made to have it stricken out after it had been admitted. The district attorney'insisted upon its reception and Petention, and the court ruled' with him. The evidence had no proper bearing upon the question of motive or intent. It was very dangerous evidence in the case. It was not harmless, as now claimed. It must have had a serious effect upon the minds of the jury, and may well have induced a verdict of guilty, which would not otherwise have resulted. In a close case like this, jurors were liable to reason that the defendant had recently had so many fires in his buildings that he must have been responsible for them, and very likely' was liable for this fire in question. The jury would necessarily regard this evidence as important because of the struggle to get it in the case and to keep it out. No instruction was given by the court limiting the effect to be given to it. On the contrary, in the charge they were instructed that they should carefully consider all the evidence in the case and base their verdict on such evidence. What use the district attorney made of this evidence in his address to the jury does not appear. He had a right to'call the attention "of the jury to- the fact that the defendant had had all these former fires in his buildings, as circumstances in the case, because the evidence was admitted and retained without any limitation as to its effect or any instruction to the jury as to the force they should give to it. We cannot say that the jury did not conclude that the defendant was guilty of causing this fire by reason, among other considerations, of the fact that he had had so many fires in Ms buildings before. It is said that this evidence was given in the Jones case, and yet theré was an affirmance in that case by this court and by the Court of Appeals. In that case the evidence came into the case by way of the cross-examination of this defendant, who was a witness there. In this case the defendant was not a witness, and this evidence . was not given to affect his credibility as a witness, but as direct evidence of defendant’s guilt.
2., The People were allowed to show by the chief of the fire [494]*494department that from the time of the fire, November nineteenth, until November twenty-fifth, he had pne of his men watching the premises: at night. This was objected to and exception taken. It was incompetent evidence against the defendant. It was in effect giving the action of the chief as indicating his opinion that the circumstances of the fire were suspicious and the premises needed watching, to prevent a further fire. This evidence was objected to and exception taken. The People were- allowed, also to give the opinion of the chief as to the effeét of certain .conditions in the budding,, produced by opening doors and windows, that it would créatela wide kind of a draft. It was hot a proper subject- for expert evidence, and the chief was no more of--.an expert.than the jurors .'themselves. The-,jurors were in effect, allowed to rely upon the opitiion of the chief instead of using their own judgment based upon the conditions proven to exist in the building. This evidence was given.under objection and exception..
. 3. The People were allowed to prove-the declarations made by defendant’s witness Moran, ten days after the fire of .November. 10, 1903, that, the oil on the floor of the workshop of -defendant was puf there. “for a purpose.” It was given under the,,claim that it was proper as- affecting Moran’s credibility. It did not, however, tend to'Contradict what he had sworn to on the trial, that he had .used a brush .and. oil in sweeping tile floor. This remark was prejudicial to the .def@tVdant,.and was improperly received as evidence under objection and excéptiorz. v
4; The-admission of evidence with reference to-the demand upon the defendant to allow an examination of Ms goods and Ms refusal* and,- the exclusion nf evidence by defendant’s wife as to directions, given by.her to Jones- as to where he should send the telegram, to defendant in Rochester, were errors' of minor, consequence, under objection and exception, but should be considered with the other more serious ones as calling for a reversal of the'judgment.'
. Other rulings are suggested by-counsel as erroneous, but they call for no particular consideration in thig.opiMoh. - .,:;
The rule is well settled that errors committed iñ a criminal trial should not be disz*egarded, and the judgment- affirmed on- appeal, unless it can be-said such errors, were harmless, and.-could, by no possibility, have prejudiced the defendant. (Stokes v. People, 53 [495]*495N. Y. 164 ; People v. Koerner, 154 id. 355 ; People v. Wennerholm, 166 id. 567.)
Under this rule we should reverse this judgment and grant a new trial for the' errors hereinbefore referred to.
All concurred, Hiscock, J., on first two grounds only, except Spbing, J., who dissented in an opinion.