THIRD DEPARTMENT, DECEMBER TERM, 1874.

simply matters of detail. When, at the close of the evidence, the people elected to proceed as to the burning of one house only, waiving all right to convict as to any of the others, they threw away thirty-four chances of conviction, which, assuming the indictment to be correctly framed as to every house, they had the right to hold and urge against the prisoner. It is difficult to see how the prisoner was harmed by it. His counsel did not except. What he assented to then, he cannot urge as error now.

The prisoner's counsel further urged upon motion to quash the indictment, and in arrest of judgment after conviction, that the indictment was void for duplicity, upon the alleged ground that it did not state that there was some human being in each one of the dwelling-houses, but in one only, and therefore charged in each count the separate offenses of arson in the first, and in the third degree. If the indictment does allege that there was a human being in some of the houses, and does not allege it as to all, then the indictment is obnoxious to the objection. The first degree of arson requires the presence of some human being in the dwelling-house at the time the prisoner sets fire to or burns it; the third degree does not. These two degrees of arson, being two distinct statutory crimes of different grades of punishment, cannot be united in one count.* The reason

of the rule is, that if the jury are permitted to find a general verdict of guilty upon such a count, the verdict condemns the prisoner for the higher offense charged in it, when the fact might be that the jury only thought him guilty of the lesser crime; and also because some might find him guilty of one, and some of the other offense, and all agree upon neither, in which case he should not be convicted at all. We state the reason of the rule, to show that the rule itself, is without application in the present case. The people withdrew all claim to convict except with regard to the single house of Mary H. Parker. The judge distinctly told the jury that they must find the prisoner guilty of setting fire to that house, or acquit him; with this waiver by the people, and this charge by the court, it was of no moment to the prisoner whether the indictment improperly joined other offenses with the one upon which only he was to be

*The People v. Wright, 9 Wend., 193; The People v. Reed, 1 Park., 481; Dawson v. The People, 25 N. Y., 399.

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THIRD DEPARTMENT, DECEMBER TERM, 1874.

judged. If the allegations as to the others were erroneous, the errors were removed by the withdrawal of the charges.

The question was distinctly raised by the prisoner's counsel in his requests to charge and exceptions to refusals to charge, whether the indictment charges the prisoner with arson in the first degree in setting fire to the house of Mary H. Parker. If it does not, then the prisoner has been convicted of a crime with which he was not charged, and the conviction cannot be sustained. The point of this objection is, that the indictment does not specifically charge that at the time the prisoner set fire to her house, there was some

human being in it. Arson in the first degree, as described by the statute, consists of " willfully setting fire to, or burning, in the night time, a dwelling-house in which there shall be, at the time, some human being." The indictment in the first count charges the prisoner with setting fire to the dwelling-house of Mary H. Parker, and the dwelling-house of several others, naming some, and describing others as " divers persons to the jurors unknown," and then uses these words: "there being then and there within the said dwelling-houses some human being." The second count used the same words to charge the presence of a human being at the time the houses were burned. Is it a fair construction of these words to say, that they do not charge the presence of a human being in each of the dwelling-houses, but only charge the presence of one human being in some one of the multitude? The prisoner had the right to know, at and before the trial, whether the indictment charged the fact to be, that there was a human being in the dwelling-house of Mary H. Parker. If it did, he had to meet a charge placing his liberty for life in peril; if it did not, then only for a short term of years. The indictment uses the precise words of the statute, and while it may be justly charged that the language employed is not explicit, we are sure that no one can read the indictment, without being convinced that it was the intent of the pleader to charge the presence of a human being in each of the dwelling-houses specified therein. We think it a fair construction of the words employed, to hold that they do so charge. This objection therefore fails.

Evidence was given by the people, under objection, showing the conduct and whereabouts of the prisoner for several hours preced

THIRD DEPARTMENT, DECEMBER TERM, 1874.

ing the fire. A hay barn was burned in the same village about three hours previous to the fire in question, and the prisoner was shown to have been seen in its vicinity shortly before and after the fire broke out. Had there been no burning of the hay barn, it would not be doubted that evidence might properly be given, showing the whereabouts and conduct of the prisoner shortly before the fire in question, especially if it bore upon his opportunity or guilty intent to do the act. This evidence seems to have been given with this view, and the judge in his charge cautioned. the jury to give to it no other effect. We think the criticism of the prisoner's counsel that proof of one offense was given in support of another is not warranted.

The prisoner's counsel requested the court to charge that if the fire did not reach the house of Mary H. Parker until after she was aroused, and she had time to escape before the fire reached her house, and she neglected to do it, it is not arson in the first degree. Mrs. Parker testified that she was aroused from her sleep by the alarm; that the fire had not then reached her house; that she threw on her wrapper, and, instead of instantly leaving, remained about five minutes to pick up some of her things, when the fire caught her house. In view of these facts the judge properly refused the request. It would be requiring too much, to ask the inmates of an exposed house, to abandon their shelter and property at the earliest moment, out of any sentimental regard for the fate of the incendiary. Arson is an offense against property. It is aggravated when, in addition to the destruction of property, human life is thereby in danger of destruction. Because a party may or does escape with his life, does not prove that it was not in peril. The statute has made the fact, that some human being is in the house at the time it is set fire to, the test of the peril, and draws no distinctions as to its imminency. Several other objections were taken which we think were properly disposed of by the learned justice upon the trial, and it is not necessary to discuss them. The conviction should be affirmed.

*

Present― BOCKES, P. J., LANDON and COUNTRYMAN, JJ.

Conviction and judgment affirmed.

* People v. Butler, 16 John., 204; People v. Orcutt, 1 Park., 252.

THIRD DEPARTMENT, DECEMBER TERM, 1874.

JOHN B. SIMPSON, ADMINISTRATOR, ETC., OF GEORGE B. SIMPSON, DECEASED, RESPONDENT, v. ALEXANDER MCKAY AND OTHERS, APPELLANTS.

ALEXANDER MCKAY AND ROBERT MCKAY, APPELLANTS, v. JOHN B. SIMPSON AS ADMINISTRATOR, ETC., AND GEORGE MCKAY, AS ADMINISTRATOR, ETC., OF ANDREW MCKAY, DECEASED, RESPONDENTS.

Decision — after twenty-one years -- not reversed on technical grounds — party seeking review must establish error - Declarations of former owner of personal propertyincompetent as to assignee.

After the expiration of twenty-one years from the making of a decision, the court will hesitate to reverse it for technical errors.

In such case, where the party seeking a review of such decision, has first alleged its making in his complaint, and then, on affidavits stating that he could prove the contrary of the facts therein found, obtains leave of the court to strike such allegations out of his complaint, the burden rests upon him to show it to be erroneous. (COUNTRYMAN, J., dissenting.)

The declarations of a former owner of personal property are incompetent evidence for any purpose as against all others except himself and his immediate representatives. (COUNTRYMAN, J.)

THE first action was brought in the late Court of Chancery for the foreclosure of a mortgage, and the principal defense was that the plaintiff's intestate was not the owner of it. Judgment directing an accounting and of foreclosure was directed, but no judgment or order was ever entered.

The second action was a cross suit brought to obtain the allowance of certain set-offs and payments upon the mortgage, the complaint therein alleging the decision made in the first action; and issue was joined therein. Thereafter a stipulation was made by the attorneys in both suits, and an order entered, that judgment should be entered in the first suit for the sum apparently due, "to stand as security," without prejudice to the continuing of that suit, so far as the accounting was concerned, and that both suits be heard and decided together.

The trial took place before a referee who rejected evidence offered by the McKays, to show that the plaintiff's intestate was not the owner of the mortgage, The McKays applied to Special Term for

THIRD DEPARTMENT, DECEMBER TERM, 1874.

a modification of the order entered on the stipulation, so as to refer to the referee the issue as to the assignment of the mortgage. The Special Term struck out the allegations of the complaint in the cross suit, averring that the General Term had decreed the foreclo sure, and that the mortgage had been assigned to the plaintiff's intestate therein. The referee and parties thereafter acted upon the theory that the whole issues in each case were referred to the referee "to hear and determine." The referee affirmed the decision of the General Term on the main question, and rejected all the setoffs and payments which were attempted to be applied upon the judgment. From the judgment entered upon this report the McKays appealed. A very full statement of facts in this case appears in Judge COUNTRYMAN's dissenting opinion.

E. W. Paige, for the appellants.

Henry Smith, for the respondents. LANDON, J.:

I am of opinion that the errors of the referee in the reception of evidence discussed by my brother COUNTRYMAN, were immaterial for these reasons: It sufficiently appears from the opinion of Justice ALLEN, that, in 1853, the General Term decided upon the evidence taken in the original action, that Andrew McKay did transfer and deliver the bond and mortgage to George B. Simpson. That although no formal judgment can be proved to have been entered to that effect, the McKays, plaintiffs in the cross action, by their complaint, which they verified in 1855, only two years after the decision was made, and when they and their counsel must have remembered the fact, not only admitted, but alleged the fact to be, that such decision had been made, and manifestly brought their cross action partly because it had been made. And, although, in 1861, forty-two years after George B. Simpson's death, and upon discovering that such judgment could not be found, they obtained an order from the Special Term permitting them to strike such allegation from their complaint, they procured such order upon affidavit that they could prove that such transfer had not been made; yet, under the circumstances, it seems to me just that such order should not be construed as opening the question of transfer further than to permit the McKays to make good their affirmation,