Summary
Information for the burning of a barn; in the Superior Court in New Haven County. Tried to the jury on the plea of not guilty, before Andrews, J.
The barn was the property of Francis H. Shaw, and the burning was charged to have taken place at Meriden on the evening of Sunday, April 26th, 1886. Sundry witnesses were introduced on the part of the state who testified as follows:—
Matthew Crawley testified:—I reside in Meriden. I am twenty-seven years old. On Sunday, the 26th day of April last, I was at the house of John Maney nearly all day. Maney keeps a saloon. That day I was not in his saloon. "We staid in his sitting room. I was there drinking with Maney and with others who came there for drinks. I drank that day several times. At about six o’clock in the afternoon Maney said to me, “ Mat., come here, I want to see you!” We went down cellar. He then said, “Mat., will you go over and set Shaw’s barn afire to-night ? ” He says, “ If you will go over and do it you shall never want for a dollar so long as I have got it.” Then he took a half pint bottle full of whisky and gave it to me. He got a pint bottle and partly filled it with kerosene oil and gave that to me. He drew the kerosene from a barrel. He had to tip up the barrel to get the oil to run. I guess the barrel was nearly empty. He put the bottle right under the faucet and drew it in that way. He could fill the bottle only about half full. I took both these bottles. He pulled out a quarter from his pocket and said, “ That is all I have got now; you can get a drink with that in the morning. You will find a window to the barn under the wagon shed with a light of glass broken out. You can pour the kerosene in there and light it and then run away.” He took the bottles from a shelf in the corner of the cellar. There was a lot of other bottles of the same kind on the shelf. I then went to my own house. Leach was with me at my house. Leach and I drank the half pint of whisky, the whole of it. At about half past seven o’clock I went over to Shaw’s barn. I found the window there broken just as he said. I got up, put my hand in, pushed back the spring, raised the window and got into the barn. I lighted a match to see the way. I went up the stairs to the hay mow. I set the hay on fire. I went back the same way, got out of the window and ran away. I did not use the oil. As I was running away I threw the bottle of oil away, back of Breckenridge’s barn. I had not taken the cork out of it. (The State’s Attorney produced a flat-shaped pint bottle or flask of glass, tightly corked and partly filled with kerosene oil.) I think that is the bottle I had. It looks like it. I think it is the one. That is the one Maney gave me.
On cross-examination the witness described the cellar of Maney with great particularity, and said that he had never been in it at any other time than the one in question. He also stated that he was arrested for this offense on the 8th day of May, and that at the office of the chief of police in Meriden he told the story of his connection with the burning of the barn substantially as he had told it in court, and that he then told about throwing away the bottle of oil back of Breckenridge’s barn.
Other witnesses testified to the fact that the barn of Mr. Shaw was burned on the 26th day of April, 1885, at about 8 o’clock in the evening. It also appeared that another barn belonging to Mr. Shaw and standing on the same ground had been burned a few months earlier.
It. M. Ford testified:—I am chief of police in Meriden. On the 8th day of May last I assisted in a search of Maney’s cellar for liquor. We found several packages of liquor there which were seized. There was a barrel of kerosene there. I turned the faucet and found it was kerosene. I held my hand under the faucet and then put it to my tongue. I could not tell whether it was a full barrel or not. I did not put my hand on the barrel. I think it was a blue barrel. I am not certain. There was a shelf there in the corner of the cellar on which there was quite a number of empty bottles^-pint and half pint bottles—like the one here (pointing to the bottle identified by Frawley.)
This witness also described Maney’s cellar and the description was substantially the same as that given by Frawley.
Wm. N. MeNamara testified:—I reside in Boston. I am a private detective. I was employed by the chief of police in Meriden to investigate the burning of Shaw’s barn. I made inquiries. I visited Maney’s place several times. I represented to him that I had escaped from the police in Boston. We had a good many talks together. He said he used to do a good business at his place till the Shaws testified against him and got his license revoked. I told him I thought that was pretty hard. He said he was getting his revenge out of them. And he asked me what I thought of the job ? I asked him to tell me all about it. He said it was Shaw’s barn. He said, 44 I hate that man like hell, and I am going to have my revenge out of him if it costs me my life.” I then told him I did not know as I blamed him, they had been so hard on him. He said, 441 didn’t have to do it myself; I have not put my hand out myself.” Frawley was sitting in the room not far away. Maney said in a low tone, pointing to Frawley, 44 Mat. here is the boy that does the job. He is a good boy and did the job well, and I paid him for it. He shall never want for anything as long as I live.” At another time Maney said to me he would give $1,000 to burn up Shaw’s house and him with it. His exact words were, “ To burn him and his house to hell.” A night or two afterwards I was there. I said to him, 44 You have got square with them now, haven’t you ? ” He said, “No, the burning the barn is only just the beginning ; you wait and see what is coming.” I communicated to the chief of police from day to day what I learned. There was a detective by the name of Sullivan who was with me two or three of the last visits I made and he heard some of Maney’s talk.
This witness testified to other conversations with Maney of the same general character as those above recited.
John T. Sullivan testified:—I live in Hartford. I was employed as a detective in this case. The witness testified to hearing the words used by Maney that “ Mat. here is the boy that does the job,” etc., as stated by the witness McNamara.
Edwin Puffer testified:—I am a policeman in Meriden. I heard the story of Frawley at the police office after he was arrested on the 8th day of May last. I heard him tell about throwing away the bottle of kerosene oil behind Mr. Breekenridge’s barn. I went to the place the same day, and found the bottle which has been shown here in court. That is the bottle (pointing to the one which had been identified by Frawley). That is the mark I put on it.
Mrs. Bridget Maney, wife of the accused, was called as a witness in his behalf, and on cross-examination testified:— There was a barrel of oil in the cellar. On Saturday, the 25th of April, I drew out from it to fill my lamp. I drew all I could get. I did not tip up the barrel.
Eatey Maney, daughter of the accused, on cross-examination testified:—On Sunday, the same day that Shaw’s barn was burned, along in the afternoon, a man came to our house to get some kerosene oil. He wanted a quart. I went down cellar to get it. I could get none from the barrel. It did not run. I did not tip up the barrel.
To the production of the bottle of oil, and its identification by Frawley, and to the testimony of the witness Puffer that he found the bottle at the place indicated by Frawley, and the testimony of the chief of police, the defendant objected, but the court admitted it.
The defendant offered testimony tending to show that a full barrel of kerosene oil was put into Haney’s cellar on the 2d day of May which was tapped on the 4th day of May, and claimed that that was the barrel of oil which Mr. Ford found there.
Upon this part of the case the court charged the jury as follows : Frawley was the active agent in this crime, and Ms story comes to you under such circumstances as to call for the most careful scrutmy. In the argument a good deal of stress has been laid upon what is claimed to be a rule of law,—that the story of an accomplice ought to be received with great care, and that undoubtedly is the rule. Our Supreme Court quite a number of years ago laid down this rule M language better than I can give it myself, and in order that you may have it exactly I will read it to you. State v. Wolcott, 21 Conn. R., 275-281. In order to enable you to find a verdict against the prisoner it is necessary that the public prosecutor produce before you evidence to satisfy your minds beyond any reasonable doubt that they are guilty of the offense charged agamst them. (In this case there were two prisoners). An accomplice is an admissible witness, but as he comes before the court under suspicious circumstances, Iris testimony ought to be received with great caution. As a general rule, it will be unsafe to convict upon the testimony of an accomplice alone, uncorroborated by other testimony. It ought to be corroborated in material facts connecting the prisoners and each of them with the crime; but the degree of credit to be given to the testimony of an accomplice, and the amount of corroboration necessary to render it satisfactory, are matters to be considered and determined by the jury. Much will depend upon Ms manner of testifyMg, his manner of answermg the interrogatories put to him, and the consistency of Ms story with the facts proved by other witnesses.” TMs was the charge of the court to the jury that tried the ease. The Supreme Court M passmg upon tMs language, say tMs:— “The testimony of an accomplice is admissible, and of course, to some extent, is presumed to be credible. The law would not admit proof which it had decided, a priori, should not be believed when admitted. If credible at all it may be sufficiently so to produce belief and conviction, and this is not unfreque' tly the fact. The degree of credit which is due to an accomplice is exclusively for the jury to say. The courts frequently do, and ought to, advise caution in reposing confidence in the naked testimony of an accomplice; but this is rather in the exercise of a proper judicial discretion than because the law demands it. What will amount to a corroboration has been a matter of some discussion in the books. Any evidence, aside from the testimony of the accomplice himself or connected with it, which appears reasonable, not merely that the crime charged has been committed, but that the accused participated in it, may satisfy the mind. And frequently facts of no great prominence will be sufficient to do this.” Row if I should attempt to make a rule out of this language of the Supreme Court it would be something like this: That the jury may hear the testimony of an accomplice, and that upon the naked testimony of an accomplice they have the right to find a verdict of guilty, but that they ought never to do so unless they find such evidence to be so clear, strong and convincing that it removes from their minds every reasonable doubt of the guilt of the accused. Row, taking that to be the rule, the state say there is no occasion for its application in this case, because they say that Frawley is corroborated. And first they say he is corroborated by the circumstances which he relates and which are found to be true by the testimony of other witnesses; that he described the cellar correctly, its character and size, the shelf with the bottles on it, with the size, shape, and kind of the bottles, the contents of the cellar, the kerosene barrel, its color, position, and the fact that it was almost empty; and they say he is further corroborated by Maney’s threats to do injury to Shaw, as well as by certain correspondences in the testimony itself, apart from the testimony of the detective, and that he is fully and clearly corroborated by both the detectives. The theory of the state is that Frawley set fire to this barn, being instigated to do so by the prisoner. I have already said to you that the case must be proved in both these respects beyond a reasonable doubt, and that it is your duty to return a verdict of not guilty unless you are persuaded beyond all reasonable doubt that the prisoner did do the thing which this claim imputes to him. As to what constitutes a reasonable doubt, you will understand that it is not a fanciful doubt, not a mere possibility or uncertainty, but that it is a doubt for which a reasonable man can see some grounds. If you entertain any such doubt as that, you ought not to convict the prisoner. If on the other hand you have no such doubt, you should render a verdict of guilty.
The jury returned a verdict of guilty, and the defendant appealed to this court. The following reasons of appeal were assigned:—
1. The court erred in admitting the testimony of the policeman Puffer as to the finding of the bottle of kerosene, and in permitting the production and identification of the bottle of kerosene before the jury.
2. The court erred in charging the jury as follows: “Well now, if I should attempt to make a rule out of this language of the Supreme Court, it would be something like this: That the jury may hear the testimony of an accomplice and they may find a verdict upon it, that is, upon the naked testimony of an accomplice, but that you ought not to do it unless you find such evidence so clear, strong, and convincing as that it removes from your mind all reasonable doubt as to the guilt of the accused.”
1. Corroborative testimony, to be admissible, must first show, or tend to show, that crime has been committed, and must connect, or tend to connect, the accused with the crime, and identify the person accused independently of the story of the accomplice. It is not admissible merely because it shows, or tends to show, that the man who committed the offense and tries to make the defendant the responsible party in the commission of the offense, knows how the deed was done, and truly tells what he did at the time he committed and while committing the crime. If it only tends to show that the so-called accomplice gives a true account of his own acts and conduct, it is not admissible against the accused. In Rex v. Addis, 6 Car. & Payne, 388, the court in laying down the rule in regard to the admissibility of evidence to corroborate an accomplice, says: “ The corroboration of an accomplice ought to be as to some fact or facts, the truth or falsehood of which goes to prove or disprove the offense charged against the prisoner.” In Regina v. Farler, 8 Car. & Payne, 106, Lord Abingeb, C. B., in summing up, said: “ Corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the person, that is really no corroboration at all. If a man was to break open a house and put a knife to your throat, and steal your property, it would be no corroboration that he stated all the facts correctly, that he had described how the person did put a knife to the throat and did steal the property. It would not at all tend to show that the party accused participated in it.” See also Rex v. Wilkes, 7 Car. & Payne, 272. The same rule is recognized in this country, and the decisions of the greatest weight sustain our claim. In Commonwealth v. Bosworth, 22 Pick., 397, Morton, J., in delivering the opinion of the court, said: “We think the rule is that the corroborative evidence must relate to some portion of the testimony which is material to the issue. To prove that an accomplice had told the truth in relation to irrelevant and immaterial matters, which were known to everybody, would have no tendency to confirm his testimony involving the guilt of the party on trial.” See also Commonwealth v. Holmes, 127 Mass., 424; Marler v. The State, 68 Ala., 580; Watson v. Commonwealth, 95 Penn. St., 424; State v. Graff, 47 Iowa, 384; Welden v. The State, 10 Texas App., 400; Best on Evidence, § 171; 1 Greenl. on Ev., § 381. We have then the rule that the corroboration must be by proof of some fact tending to connect the defendant with the commission of the offense, independently of the testimony of the accomplice, and the test is to throw out all other evidence and see whether the evidence introduced tended to show that the defendant was connected with the offense. Applying this test, we find that the evidence objected to was clearly inadmissible. Taken by itself, it shows that on the 8th day of May, twelve days after the fire, a bottle with kerosene oil was found in a certain place, and that place too far from the fire to show that the bottle had any connection with it. There are no distinguishing marks on the bottle to show that it came from Maney, any more than there is to show that it came from any other liquor seller in Meriden or any other place. It is just as strong evidence against any liquor seller in Meriden, or any man who ever bought a pint of liquor or had a pint of kerosene oil, as it is against Maney. Further, taken by itself there is nothing to show that the bottle had anything' to do with the fire, or how it came to the place where it was found. The most that it can possibly show is that some person had a pint bottle and some oil; that some person put the oil in the bottle, but whether the man who owned the bottle also owned the oil or not it does not show, and it shows further that some one put the bottle with the oil in a place far removed from the scene of the crime; and that is all it does show. And so long as it shows that, and that only, it cannot be admitted to corroborate Frawley or for any other purpose. And the evidence of Puffer that he found it where Frawley said he threw a bottle, only shows that Frawley gave a correct history of the crime, and this does not connect Maney with the crime any more than it does anyone else. Rex v. Wilkes, 7 Car. & P., 272; Regina v. Farler, 8 id., 106. It is no answer for the state to say that the jury might convict on the uncorroborated testimony of the accomplice, for if the evidence was introduced for the purpose of corroborating Frawley in spite of the objection of the defendant, and was not properly admissible, the defendant is entitled to a new trial. “ Although a jury may convict on the uncorroborated testimony of an accomplice, yet the admission, against the defendant’s objection, for the purpose of corroborating the testimony of an accomplice, of evidence which does not connect the defendant with the crime,” is a ground for a new trial. Commonwealth v. Holmes, 127 Mass., 424. It is no answer to the defendant’s claim for a new trial to say that there is strong proof against him without this, for no one can tell what convinced the mind of the jury of the guilt of the accused. The bottle of kerosene and Puffer’s story may have had more weight with them than any other part of the case. Certainly no one can say that it did not, and as this is a criminal case, and there has been error in the ruling of the court below, the defendant is entitled to a new trial. The jury must’ be convinced, beyond a reasonable doubt, by legally admissible evidence, that the accused is guilty of the offense charged, and so long as there is mingled with admissible evidence some that is inadmissible, no one can say that the jury were convinced by the evidence properly admitted, and did not take into consideration the evidence improperly admitted. In criminal cases courts do not refuse new trials because there is, in their minds, sufficient evidence to convict without the evidence improperly admitted, but give the accused a new trial if evidence has been improperly admitted, and leave the weight of the testimony properly admitted to be passed upon and determined by the jury. Commonwealth v. Bosworth, 22 Pick., 397; Hughes v. The State, 58 Miss., 355; Rosenwerg v. The People, 63 Barb., 637, 640; State v. Allen, 1 Hawks, 6; State v. Merrill, 2 Dev., 278; Coleman v. The People, 58 N. York, 555, 561.
2. Was the charge of the court a proper charge? The law most favorable to the state, while admitting that the jury may convict on the testimony of an accomplice alone, always couples with the admission the declaration that the accomplice’s evidence ought to be corroborated, and holds that it is better to acquit than convict a man against whom the testimony of an accomplice only is introduced, no matter how clear that testimony is. So universally is this declaration made in the opinions of this state and others, while admitting the right of the jury to so convict, that it has become practically a qualification of the rule, and shows that the law does not look upon the testimony of an accomplice with the same degree of favor that it does on other evidence. But the charge of the court puts such testimony on a par with other kinds, and says, merely, if you are convinced beyond a reasonable doubt, by the testimony of an accomplice, of the defendant’s guilt, that is sufficient, stating exactly the same rule that applies to all kinds of evidence, and containing no caution, no advice, and showing no distinction between testimony of an accomplice and other testimony. It certainly cannot be true that the law gives the same weight to the testimony of an accomplice that it does to that of a perfectly free, unbiased person, one of unimpeachable and unquestionable character and reputation, and yet the same rule which was laid down by the court in tins case would obtain in the ease of a man of the highest integrity and character. No matter how good a man’s character might be, his story would have to be so clear, strong, and convincing, that it would remove from the minds of the jury every reasonable doubt of the guilt of the accused, and to lay down a rule for the guidance of the jury which puts the testimony of an accomplice on a level with that of a man of unspotted reputation and character, must be contrary to law, and must necessarily mislead the jury in regard to the amount of faith to be put in the story of a man confessedly guilty of the crime for which he seeks to make another man responsible. “ Courts ought to advise caution in reposing confidence in the naked testimony of an accomplice.” State v. Wolcott, 21 Conn., 281. The court below did not advise caution, but without hinting that any caution was necessary the court laid down a rule which applies to all kinds of testimony, when the law requires that in addition to the universal rule there should be, in cases where an accomplice testifies, a caution in such language as to show that an accomplice when giving his testimony is not on a par with men of unblemished character.
cited State v. Wolcott, 21 Conn., 280; State v. Stebbins, 29 id., 472; State v. Williamson, 42 id., 265; People v. Guidici, 100 N. York, 510.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
