People v. Fanshawe

• Decision Date: 17 January 1893
• Citation: 32 N.E. 1102,137 N.Y. 68
• Parties: PEOPLE v. FANSHAWE.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 68

32 N.E. 1102

PEOPLE

v.FANSHAWE.

Court of Appeals of New York.

Jan. 17, 1893.

Appeal from supreme court, general term, first department.

John M. D. Fanshawe was convicted of arson in the first degree, and from a judgment of the supreme court affirming such judgment, (19 N. Y. Supp. 865,) he appeals. Affirmed.

Charles W. Brooke, for appellant.

De Lancey Nicoll, Dist. Atty., ( Henry B. B. Stapler, Asst. Dist. Atty., of counsel,) for the People.

O'BRIEN, J.

The defendant was convicted of the crime of arson in the first degree, upon proof, sufficient for the consideration of the jury, that he willfully and maliciously set fire to a lodging house in the city of New York, in the nighttime, and in which there were lodging at the time 15 or 20 persons. The defendant had a room in the house, and the proof tended to show that the fire originated in this room. He had a trunk in the room, containing his personal effects, which were insured for $1,000, and this property was partially destroyed before the fire in the room was extinguished. The proof tended to show that this property was insured for much more than its value, and it appeared that though the defendant, in his proofs of loss, stated the value at over $1,500, the claim was settled with the insurance company for $350. The defendant's counsel assumes, as we understand him, that the intent was to destroy the trunk and other personal effects insured, for the purpose of defrauding the insurance company, but insists that the defendant could not be convicted of arson in the first degree if he set the fire in his room with this intent. His position is that a lawful conviction could not have been obtained upon the facts, as it was not charged in the indictment, nor established by any proof whatever, that the defendant set the fire with the intent to destroy the building. It is obvious that, if the learned counsel is right in his contention tht an intent to destroy the building set on fire is a necessary element in the crime of arson in the first degree, then this conviction cannot be upheld. It is clear that such intent was not a necessary element of the crime, as it existed at common law, or under any statutory definition prevailing in this state prior to the enactmentof the present Penal Code. At common law the offense was defined as the willful and malicious burning of another's house. 4 Bl. Common. 221; 2 Bish. Crim. Law, c. 2, § 8; 2 Whart. Crim. Law, § 1658. It has always been regarded as an offense of great malignity, and was formerly punishable with death. Even under our statute, prior to the Penal Code, arson in the first degree was classed among capital crimes, and was punished in the same manner as murder in the second degree. 3 Rev. St. (7th Ed.) 2472. It was always looked upon as a crime that endangered human life, and the security of human habitations, and hence deserving of severer punishment than any offense aimed at the destruction of property, merely. The statutory definitions of the crime that have long existed in this state have embraced different degrees, many of which were framed, doubtless, for the protection of property. But the act of setting fire to a dwelling house, in the nighttime, in which human beings were lodged, has always been classed as an offense ranking with murder in its enormity and its dangerous consequences to society; and it was never supposed that the particular intent or motive that prompted so dangerous an act was a necessary element of the crime, so long as the act itself was willful and malicious. When it was shown that a person willfully set fire to a house, in the night, where human beings were at the time, it was supposed that this act alone evidenced such moral depravity, and such a reckless disregard of human life, as to constitute the offense, irrespective of the actual motive from which the act proceeded. So that if it be true that the defendant, in this case, set fire to his room for the purpose of destroying the property insured, in order to defraud the insurance company, and not to destroy the building, this would not change the character of the offense, as the law on this subject has heretofore been understood. All this, the learned counsel for the defendant contends, has been changed by the provisions of the Penal Code; and thus it becomes necessary to inquire whether the legislature intended to have, in fact, worked such an important change in the law by the passage of that statute. While it was intended to define all criminal offenses, it was a revision of prior laws on this subject, and a substitute for the scattered and fragmentary legislation that preceded it, and must be construed with reference to the law which it replaced. Where an offense is defined in the same language as was employed before, or substantially the same, it will be presumed that no change was intended, unless the legislative intent in that direction is clear. People v. Jaehne, 103 N. Y. 193, 8 N. E. Rep. 374; People v. Stevens, 109 N. Y. 162, 16 N. E. Rep. 53; People v. Richards, 108 N. Y. 144, 15 N. E. Rep. 371; People v. Palme, 109 N. Y. 110, 16 N. E. Rep. 529.

Prior to the enactment of the Penal Code, arson was defined by statute in this state, and divided into four degrees; and many of the acts embraced within the different degrees of the crime were obviously injuries to property, merely. In the Penal Code the fourth degree has been dropped out, and all acts amounting to arson are concisely stated in three sections, defining three degrees of the crime. Section 486 declares that a person who willfully burns or sets on fire, in the nighttime, a dwelling house in which there is at the time a human being, is guilty of arson in the first degree. This case is certainly within the words of that section, unless it is limited and modified by some other provision. In the two following sections the second and third degrees of the crime are defined, and then the punishment is prescribed in the next section. Then follows section 490, which reads as follows: ‘The burning of a building under circumstances which show, beyond a reasonable doubt, that...