People v. Zucker

Patterson, J.:

The appellant was convicted of the ■ crime for which he was indicted and tried upon the testimony of the witness Schoenholz, *364 who swore that he set fire to the premises in Division street, and that he was employed, by Zucker to do so. One question arising in the ease is, as to corroboration of the statements of this witness Schoenholz, such corroboration being necessary in order that the proof of the defendant’s • guilt should not .rest altogether • on the unsupported testimony of an accomplice in the transaction. The record contains corroborating evidence, and it is to be found in the testimony of the witness Meyers, who swore to a conversation between himself and Zucker, the prisoner, which’ conversation took place at about the exact time the fire occurred, and in which Zucker •declared to Meyers that he had been waiting for an hour ; that he. did not hear any fire engines coming, and was worried about it and asked Meyers to go over to Division street and tell Schoenholz ■ to give him the key ; “ I want to make that to-night; I am afraid it won’t go off and they are liable to find that stuff all in there.” Meyers says he declined going because an explosion was likely to take place, and that, he being seen about there, people in the neighborhood- would be apt to think that he, Meyers, had something to do with it. Meyers then walked, according to his story, with the-prisoner up Grand street as far as Attorney street, when the fire -engines were seen coming, whereupon the prisoner said, “Meyers, it’s all right; it is-off; I am sure they won’t find the stuff there now.” Subsequently, and while the fire was in progress, the prisoner remarked that it Avas not much of a fire; he did not think 'Schoenholz did it right; that there were two streams on it and it looked to be more smoke than it was fire. It is claimed that this evidence is' subject to the same criticism as that made of Schoenholz’s, namely that Meyers also was an accomplice. I do not think that Meyers can be' regarded as standing in that relation to Zucker. He was not particeps criminis; he was in no way connected with the crime itself; he had nothing to do with its commission; was not concerned in it, but according to the testimony positively declined to take any part in it. His single act'in helping' to remove some plaster from a part of the wall of the Division street house did not necessarily make him an accomplice. All that is to be said concerning him is that he knew of the purpose of Zucker and did not reveal it..

Upon this state of facts the court was asked to charge substantially that Meyers was an accomplice, and for that reason his evidence could *365 not be used to corroborate the evidence of another accomplice, and that it could not be regarded as sufficient to convict unless it was corroborated. This the court refused, and to this refusal, which is now relied upon as error, exception was taken.

To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an accessory before the fact. To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with intent to assist in the crime. Every act which may have a tendency to assist in the perpetration of the crime is not, of absolute. necessity, criminal. Before it will have that effect it must have been done with the intention on the part of the actor that it shall aid in the commission of the crime. Unless it appears without dispute that there was such intention, the person doing the act cannot be said to be a principal and if there is a question whether the act was done with such intent, that question must be submitted to the jury and answered by them in the affirmative before the actor can be held to be a principal, and consequently before he can be held to be an accomplice. .

The court was asked to charge that, as a matter of law, Meyers was-an accomplice. This it properly refused to do. Giving to the facts, sworn to the largest effect, all that can be said is that the jury, upon those facts, might have found that Meyers did the acts with intent, to assist in preparations for the perpetration of that crime, and if' that intent had been found he could be charged as an accomplice. But it was for the jury to find the intent. The court was not asked to submit to the jury the question whether he was an accomplice, or-to say to the jury that, if they found that he did the acts with intent, to assist in the perpetration of the crime, then he was an accomplice,, and required corroboration. Had that request been made a different question would have been presented. But the court did not err in refusing to decide the effect of those facts as a matter of law,, and for that reason it was not error to refuse to charge as requested.

But the important question in the ease relates to the admission of testimony as to the perpetration by the appellant of the crime of arson, consisting of the burning by him, or at his instigation, of a building in Newark, in New Jersey, shortly before the fire occurred in Division street, in the city of New York. .The New York fire *366 occurred on the 4th of January, 1892. A few days before that certain premises in Mulberry street, in the city of Newark, were burned, in which premises had been placed personal property removed from the Division street house to Newark by the procurement of Zucker. The testimony, (with respect to the Newark fire, came into the case on the examination of Schoenholz, and, at first, without objection, but at a subsequent stage of the case was objected to and was admitted under exception. It is quite apparent that evidence, touching this Newark fire, must have been very - influential, and, if it were improperly allowed to go before the jury, there can be no doubt that the conviction should be reversed. The ground of the appellant’s attack upon it is, that it relates altogether to an independent crime for which the prisoner was not indicted, and which was in no way connected with the alleged offense for which he was being tried. The rule is wide in its application, that evidence of independent and disconnected crimes cannot be given on the trial of an indictment for a specific offense. The justice and reasonableness of the rule is too apparent to need comment. But where one crime is committed to prepare the way for another, and the commission of the second crime is made to depend upon the perpetration of the first, the two become connected and related transactions, and proof of the commission of the first offense becomes relevant to show the motive for the perpetration of the second. It would scarcely be doubted that, on the trial of an indictment for murder, it • might be shown that the prisoner, in order to furnish himself with a weapon with. which to do the killing, stole that weapon, and the larceny thus becomes part of the preparation for ■ the murder. In the case at bar the question is, whether the act of arson committed in Newark was part of a scheme to prepare the way for the burning of the house in Division street in New York, proof of it furnishing evidence either of a motive for the commission of the crime in New York, or showing a set of circumstances designed and brought about to divert suspicion as to the origin of the crime the prisoner contemplated committing in burning the, house in New York. If the commission of the so-called independent crime is traced in the evidence as directly connected with the act of burning the New York house, to show a motive- and a reason for that burning, the two acts become part of one con *367 nected scheme culminating in the arson for which the prisoner wag' indicted..

Without stopping to comment upon the contaminated source of the testimony on this topic (for all that was properly and very carefully dealt with by the trial judge), it was shown that Zncker’s scheme was concocted as far back as the month of August, 1891. He then occupied the premises 264 Division street, and was the owner both of the house and of certain furniture situated therein. At that time Zucker, at .the house of one Blum, employed Schoenholz to remove the furniture from 264 Division street to 140 Mulberry street, in Newark. He told Schoenholz that he wanted to have the furniture' moved, because he was going to burn down the Division street house, as it was condemned by the board of health, and it would cost about $2,000 to fix it up. In substance, he wanted the furniture moved to N ewark, where he would have it insured in the name of one Seltzer, for the reason that he (Zucker) could not get it insured in his own name, because he was blacklisted by the insurance companies. The evident purpose of this removal of the furniture was to have it insured and then destroyed by an incendiary fire in Newark, for Schoenholz asked Zucker, “ What will you do to him (Seltzer) if lie will beat you out of it ?” There can be no misunderstanding of the testimony as to what this inquiry relates,-for after the furniture was moved Zucker declared to Schoenholz, “ I think I will arrange it so that these two places will go off at the same time, Newark and here.” Zucker also declared that he left certain of the personal property in the Division street house, namely, remnants of goods, and machinery and' sewing machines, “ for the purpose, when the house shall burn down, the insurance company will have no suspicion that the place was set on fire, because there will be so much goods laying around, and it will be such an accident fire, and I was not insured,” meaning on that remaining property. Now, it is perfectly obvious from this testimony, and the jury believed it, that' Zucker, intending to destroy the house in Division street, and also the personal property belonging to him situated in it, prepared a scheme by which the personal property should be destroyed by an incendiary fire in Newark, and the house destroyed by an incendiary fire in New York, both fires to occur at about the same time, and in the preparation for both of which intended simultaneous fires Zucker *368 employed the witness Sehoenholz. Zucker’s object was to get the insurance oh the personalproperty, then in the Division street house, through a transfer of it to Seltzer, its removal to Newark, and its destruction by tire under circumstances with which he would have no apparent connection. Such being the scheme, the one plan that Zucker concocted for the purpose of burning his house and his personal property then in that house, the prosecution merely undertook to show that that scheme was carried out, and that the crime of arson was committed in precisely the way in which it was intended and prepared, the only difference being that, instead of the two tires occurring on the same day, one preceded the other by a few days. That Zucker caused the whole scheme to be executed in both its parts was testified, to. ■ Sehoenholz said : “ So you had a fire there already in Newark, and you kept your wordyou were going to let me do it.” To which Zucker replied: “You could not have done it any how, and the best luck that I ever had happened to me at this fire.” Here was a positive acknowledgment by Zucker of the consummation of that branch of the scheme which involved the burning of the personal property which had been removed from the Division street house in order that it might be destroyed in Newark to obtain the insurance money ; and the proof of the destruction of the building in New York, for the purpose of procuring insurance money, was also proven.

These two fires stand so closely and inseparably related in the ■ formation and carrying out of one plan for destroying both’ classes of property for the purpose of getting insurance on both, that I think no fair doubt can be entertained as to the competency and admissibility of the evidence relating to the one transaction in its entirety, of which may it be said only that it included two branches.

The conviction was right and should be affirmed.

Rumsey and Parker, JJ., concurred; Williams and Ingraham, JJ., dissented.