[141 N.Y.S.2d 170] Nathan D. Seeberg, Buffalo (William O'Neill and Samuel E. Chasin, Buffalo, of counsel), for defendant-appellant.
Ralph S. Cramer, Dist. Atty., Chemung County, Elmira, for respondent.
Before BERGAN, J. P., and COON, HALPERN, IMRIE and ZELLER, JJ.
The first count of the indictment accused defendant of willfully setting on fire and burning a dwelling house known as the Sullivan Hotel, owned by defendant, in which there was no human being, in the nighttime on October 28, 1951. The second count accused defendant of the same acts while the
building was insured with intent to prejudice and defraud the insurers. After a lengthy trial the jury rendered a verdict of 'guilty as charged' upon which the judgment of conviction was entitled. On this appeal defendant-appellant argues that the evidence is insufficient and that there were errors of law at the trial which require a reversal.
Defendant owned and operated the hotel located across from a railroad station in Elmira, N. Y. The ground floor was used as a restaurant and barroom and the second floor was used occasionally by roomers, but was unoccupied at the time of the fire. The third floor was an attic. Defendant had tended bar on the night in question, and closed the establishment [141 N.Y.S.2d 171] at about 1:30 o'clock, a. m. He testified that everything was in order when he left; that he was the last person to leave the premises, and that he locked all doors. At around 3:30 o'clock, a. m., the fire department was notified that the hotel was on fire. Upon arrival they found the place in flames, but succeeded in extinguishing the fire before it was destroyed. There was no evidence of a forced entrance to the building. The firemen gained entrance by pushing open a rear door (without breaking it) which had an inside bolt that apparently was not in locked position. Straw was found strewn about the premises from the first floor to the attic, on the stairways, under furniture and stuffed under rafters in the attic. Two sticks with cloth wound around the end in the nature of a torch were also found. There was evidence tending to connect the sticks with a baby bed stored in the attic and the cloth with sheets used within the premises. There is evidence that a small amount of straw was found in the trunk compartment of defendant's automobile after the fire. The fire was clearly of incendiary origin, and that question was not even litigated. The only question for the jury was whether the evidence established beyond a reasonable doubt that the defendant was the perpetrator. In the sense that there was no evidence that any one saw the fire set or saw the defendant at the premises after the 1:30 o'clock a. m. closing, the evidence that defendant set the fire is circumstantial.
Without discussing the mass of evidence contained in the record in detail, in addition to the factors already mentioned there is evidence which would justify a jury in concluding that the defendant was heavily in debt; that his hotel business was not prospering, and that the premises were overinsured. There was also evidence of statements made by defendant to undercover agents which indicated a guilty knowledge of the circumstances
surrounding the fire. We think the evidence clearly and abundantly establishes the guilt of the defendant. The proof points logically to defendant's guilt and excludes, to a moral certainty, every other reasonable hypothesis. The proven facts are consistent with, and point to, defendant's guilt and are inconsistent with his innocence. It is not essential that the evidence exclude to an absolute certainty the mere possibility that someone else might have set the fire. People v. Harris, 306 N.Y. 345, 118 N.E.2d 470.
With one exception, we do not think the alleged errors during the trial which are urged on defendant's behalf on this appeal, are of sufficient consequence to warrant discussion. The trial was long and bitterly fought. Objections and motions for a mistrial were frequent, as were provocative comments by defense counsel. Nevertheless, the record shows that the defendant's rights were adequately protected throughout, and if any technical error was committed, it was not such as to affect the substantial rights of the defendant. Code Cr.Proc. § 542.
[141 N.Y.S.2d 172] The one exception presents a more serious matter, and if it were error at all, would require reversal. A written statement purporting to have been made by defendant's father was received in evidence as bearing upon the credibility of the father who was called as a witness by the People. This statement, written in the Italian language and in an English translation, contained statements implicating the defendant in the crime, such as: 'I declared that my son had straw but I did not know at any time where it came from. The first time I saw the straw it was in the garage near the hotel before two days of the fire. We were the only two that knew anything regarding the fire. The night that he burned the hotel he took me home at 7:30 p. m. and he never let me know of the outcome. I also declare that my son John Cannizzaro made the hand made torches to help burn the hotel about twenty days ahead of time. The straw and the torches were kept also in the cellar but I do not know where the straw come from.' Cannizzaro, Sr., had been held as a material witness. He was an elderly Italian who could not read or write. An interpreter and a police officer of Italian extraction from another city interviewed him at a hospital, where he was sitting up in a chair. A statement in Italian and a translation in English were there prepared in writing. The two witnesses testified that the statements accurately recorded what the witness told them; that the statements were read to him, and that he made an 'X' mark at the end of
each statement. A nurse at the hospital also testified that she was in the room and saw Cannizzaro, Sr. make the 'X' ...