#### The People of the State of New York, Respondent, *v.*Hyman Stehr, Appellant.

Second Department,

May 7, 1915.

Crime — arson — charge — testimony of accomplice — statements made by witness out of court.

Where a person not charged with being the incendiary is on trial for the crime of arson, and there is no direct proof establishing his guilt, except the testimony of an alleged accomplice, it is error for the court to charge that if the jury disbelieve the testimony of the alleged accomplice connecting the defendant with the crime, they may still find him guilty on other evidence.

Moreover, in such action the court should charge that statements made out of court by the actual incendiary, who when called as a witness gave no testimony inculpating the defendant, cannot be considered as evidence against the defendant although they implicated him in the crime.

Appeal by the defendant, Hyman Stehr, from a judgment of the County Court of Kings county, rendered against him on the 29th day of June, 1914, convicting him of the crime of arson in the first degree.

*Luke O'Reilly,*for the appellant.

*Harry Q. Anderson, Assistant District Attorney*[ *James C. Cropsey, District Attorney,*with him on the brief], for the respondent.

Per Curiam:

The defendant was convicted of arson. He was not the incendiary. A witness, Stern, jointly indicted, was convicted. The case is deficient in direct evidence to establish defendant’s guilt save that which came from the lips of Stern. Kessler, the convicted incendiary, was called as a witness by the prosecution, but gave no evidence inculpating the defendant. The prosecution asserted disappointment. The assistant district attorney, under the pretext of probing the conscience and testing the recollection of Kessler, read from a paper, in question form, an extra-judicial statement, purporting to have been previously made by Kessler, in which he implicated the defend*120ant. Stem’s testimony was, perhaps, sufficiently corroborated by evidence of circumstances tending to connect the defendant with the commission of the crime. The circumstantial evidence was insufficient to prove the defendant’s guilt without Stern’s testimony.

In this state of the record the learned trial court was requested to charge: *“*That the jury, in weighing the testimony of Isaac Stern may consider the different statements made by him at different times, and that if the jury disbelieve Isaac Stern then they must acquit the defendant; there is nothing else in this thing.” The court made this disposition of the request: “ That is a question that perhaps ought to be left to the jury. I think I will leave that to the jury, that if they disbelieve the testimony of Isaac Stern, then it is for them to say whether there is testimony outside of that to lead them to believe beyond a reasonable doubt as to the guilt of the defendant.” An exception was recorded.

We think the exception presents prejudical error. We cannot know whether the jury believed a convicted participant in the crime. If they did not, the evidence was insufficient to establish defendant’s guilt. The jury may have assumed that the statement of Kessler, made out of court and indirectly placed before them, constituted evidence. They were not advised in the charge that it did not, although the method of getting it before the jury was vigorously and consistently opposed by the learned counsel for the defendant.

The judgment of conviction of the County Court of Kings county should be reversed, and a new trial ordered.

Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment of conviction of the County Court of

Kings county reversed, and new trial ordered.