children at labor instead of school, or from capricious or recalcitrant motives, may be allowed to manufacture easy excuses for not sending their children to school, a ready method will have been developed for evad

carrying out the intent of this provision as applicable to civil cases, has provided that appeals in such cases, originating in inferior courts, not otherwise permitted, may be taken to the court of appeals by permission of the appellate division. Code Civ. Proc. §ing the statute compelling such attendance; 191. The constitutional provision being broad and complete enough without supplementary statutory provision to secure the right of appeal by permission, I see no reason why we should not give to it the force in criminal cases which has been adopted in civil ones, and thereby secure harmony of practice.

and, if the statute which requires parents to see to it that their children attend and take advantage of this school system may be lightly and easily evaded, the purposes of the state in providing and insisting on education will be frustrated and impaired. Failure to comply with the statute ought not to be excused except for some good reason.

This course has been pursued in respect of the unanimous affirmance clause of the It is perfectly evident that in a great same section of the Constitution. The leg-city like New York, with its complex and islature re-enacted this provision as applica- varying conditions, regulations must be ble to civil cases. Code Civ. Proc. § 191. adopted for the purposes of preserving disIt never did this in regard to criminal pro- cipline, order, and health in the public ceedings, and in the absence of such statu- schools. Some of these regulations would tory enactment it was for some time doubt be so plain and essential that no reasonable ed whether such constitutional provision person would think of disputing their vaapplied to criminal proceedings. That doubt lidity or of making unwillingness to comply now has been removed, and it has been therewith a basis for not sending his chil abundantly held that it is so applicable. dren to school. The question which, within The reasoning which was applied by Judge certain limits, is presented here, is whether Gray to that question seems to be entirely the statute and the by-laws of the board of pertinent to the present one. He wrote: education in that city, adopted under and "The constitutional provision as to the con- in accordance with the statute requiring clusiveness of a judgment upon all ques- vaccination as a condition of attending the tions of fact, when unanimously affirmed by public schools, are, under ordinary condithe appellate division, is unqualified in its tions, so unusual or oppressive that a parlanguage, and there is no reason for deny-ent should be allowed to make his unwillinging its effect in criminal cases." People v. Maggiore, 189 N. Y. 514, 515, 81 N. E. 775, 776.

Without deciding the question, it was assumed in People v. Johnston, supra, that the constitutional provision under consideration was applicable to criminal cases.

There was no necessity for formulating and certifying a specific question. Kurz v. Doerr, 180 N. Y. 88, 92, 105 Am. St. Rep. 716, 72 N. E. 926, 2 Ann. Cas. 71.

Thus we are brought to a consideration of the appeal on the merits. It is obvious that a parent should not be allowed to escape his duty to send his children to school, as provided by law, on any excuse which is not an ample justification for such

course.

ness to comply therewith a basis for not sending his children to school; for that is what the present position of the defendant amounts to. I do not think that they are of such a character.

It is unnecessary to engage in any discussion of the police powers of the state in respect of this subject, or to argue that the statute requiring vaccination as a condition of attending public schools is well within such police power. This subject was carefully and elaborately construed by this court in Re Viemeister, 179 N. Y. 235, 70 L.R.A. 796, 103 Am. St. Rep. 859, 72 N. E. 97, 1 Ann. Cas. 334, and it was there held that the legislature might pass such a law, and, amongst other things, it was written in substance that, while it could not be exactly and absolutely demonstrated that vaccination prevented smallpox, and while some authorities disputed this proposition, the prevalent belief was that it did have this effect, and therefore that it was for the legislature, in the exercise of its discretion, to decide this question, and, if it considered As a part of this system, a statute has that the remedy was effective, pass such a been passed requiring attendance at school statute in the interest of public health. of children within certain limits. If in- Under this decision we must assume that different or selfish parents, for ulterior pur- the law requiring vaccination of children in poses, such as the desire to place young' the public schools is a proper one.

Our public school system has been developed with great pains and solicitude, and its maintenance and support have been recognized as so important for the welfare of the state that they have been provided for and safeguarded in the Constitution itself.

But it is urged that, while this law may properly be applied to those who, in the face of its provisions, elect to attend the public schools, still it is of such a character that its remedies ought not to be indirectly forced upon any unwilling person through the compulsory attendance provisions of the education law, and we are reminded of the familiar principle that a penal law should be strictly construed.

compelling vaccination is constitutional.
Jacobson v. Massachusetts, 197 U. S. 11, 49
L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann.
Cas. 765.

Therefore, at least under general and ordinary conditions, I do not believe that a parent may escape his duties under the education law by pleading simple unwillingness to have his child attend the public schools subject to the condition of vaccination.

Admitting all of the force which this principle justly has, there is another rule So far as the evidence discloses, the of construction which seems to me more defendant's refusal to comply with the repotent in this case, and that is the one that quirements of attendance at school was arstatutes relating to the same general sub- bitrary and capricious; and as one reads ject are to be construed in harmony with the record and argument of his counsel each other if possible. the impression somehow arises that he was The statute requiring vaccination was more interested in asserting his right to readopted in its present form in 1893. Pub-fuse to comply with the law than he was lic health law (Laws of 1893, chap. 661), § actuated by the purpose of protecting his 200. The provision requiring attendance child from some possible or supposed injury. upon instruction was first adopted in 1894 I think there is still another reason why (chapter 671). Thus we find that the legis- the defendant was not excused for disobedilature adopted the statute providing for ence of the law requiring him to see to the compulsory attendance at school the very education of his child. next year after it had passed the statute requiring vaccination of those attending the public schools, and it does not seem reasonable to assume that it was the legislative intention, in passing both of these statutes relating to attendance at school, to provide and have it come to pass that the unwillingness to comply with the one requiring vaccination might be turned into a good excuse for disobeying the other one concerning attendance.

It is hardly to be assumed that when the legislature passed the later statute there had slipped from its theoretical mind remembrance of the other law providing a very important condition of attendance at public schools, and, if it had purposed that a child might be excused from attendance by reason of the unwillingness of its parent to have it vaccinated, I cannot but believe that something would have been said on that subject.

It does not require much spirit of prophecy to foresee what will follow a contrary construction of the statutes. If a parent may escape all obligation under the statute requiring him to send his children to school by simply alleging that he does not believe in vaccination, the policy of the state to give some education to all children, if necessary by compelling measure, will become more or less of a farce under existing legislation.

The vaccination statute which we have been considering applies only to the public schools. It is well known that there are schools of other kinds and classes which might have been attended by the defendant's child, where attendance would not have been subject to the condition which he now urges as an excuse for his failure to send his child to school. It is answered in his behalf to this suggestion that that would entail expense. This might or might not be so, and even if it were, it would not be sufficient to excuse the present position and situation of the defendant. We are made well aware at the present day that the government, in the exercise of its police powers, does impose many regulations which involve trouble and expense, and such trouble and expense have not been regarded as an excuse for noncompliance. If the defendant does not desire to take advantage of the public schools under the conditions prescribed fo their operation, it very possibly may result that he will incur some additional trouble in the education of his children elsewhere. The choice of courses rests with him, and the burdens of either will doubtless be fully compensated by the benefits to accrue from furnishing an education to his children.

The order should be affirmed.

Werner, Chase, Collin, Cuddeback, and Hogan, JJ., concur. Willard Bartlett, Ch. J., concurs on ground last stated in

It is to be borne in mind in this connection that it has been held by the Supreme Court of the United States that a statute opinion.

Y. 584, 52 N. E. 576; People v. Molineux, | which dwelling there was at the time some 168 N. Y. 264, 62 L.R.A. 193, 61 N. E. 286; human being. The other two counts are People v. Doty, 175 N. Y. 164, 67 N. E. 303; | simply repetitions of the first, with the exPeople v. Cahill, 193 N. Y. 232, 20 L.R.A. (N.S.) 1084, 86 N. E. 39; People v. Katz, 209 N. Y. 311, 103 N. E. 305, Ann. Cas. 1915A, 501; People v. Marrin, 205 N. Y. 275, 43 L.R.A. (N.S.) 754, 98 N. E. 474; People v. Dolan, 186 N. Y. 4, 116 Am. St. Rep. 521, 78 N. E. 569, 9 Ann. Cas. 453; People v. Shulman, 80 N. Y. 373, note; People v. Weisenberger, 73 App. Div. 428, 77 N. Y. Supp. 71; Weyman v. People, 4 Hun, 511, 62 N. Y. 623; Com. v. Robinson, 146 Mass. 571, 16 N. E. 452; Mayer v. People, 80 N. Y. 364; Rex. v. Bond, 21 Cox, C. C. 252; Rex v. Rhodes, 19 Cox, C. C. 182; State v. Schnettler, 181 Mo. 173, 79 S. W.

1123.

Evidence showing the bias or hostility of a witness must not be remote and uncertain, from which hostility might or might not be inferred, but it must be direct and positive.

ception that each names a different person as the householder in whose dwelling the fire took place. The defendant now challenges the sufficiency of the indictment on two grounds: (1) That it refers to a dwelling house, but does not state in precise terms or by description where the house was located. (2) That it states that there was some human being in the house at the time of the fire, but does not identify the person by name or otherwise. Both of these objections could have been raised by demurrer (Code Crim. Proc. § 323, subdiv. 2), but they were not available to the defendant at the trial or on his motion in arrest of judgment (Code Crim. Proc. § 331), and for that reason they cannot be considered on this appeal.

The case was tried for the prosecution upon the theory that the defendant and Stein had entered into a conspiracy to induce various persons to insure their household effects for the purpose of having them damaged or destroyed by fires which were to be made by Stein; and that the defendant's part in the scheme was to take care

Schultz v. 3d Ave. R. Co. 89 N. Y. 242; Gale v. New York C. & H. R. R. Co. 76 N. Y. 594; People v. Brooks, 131 N. Y. 321, 30 N. E. 189; Brink v. Stratton, 176 N. Y. 150, 63 L.R.A. 182, 68 N. E. 148. The testimony of De Malignon was ad- of the adjustment of the losses and the colmissible.

Wigmore, Ev. chap. LXV. § 1917, pp. 2545, 2546, 2549, 2552; Dougherty v. Milliken, 163 N. Y. 527, 79 Am. St. Rep. 608, 57 N. E. 757; Finn v. Cassidy, 165 N. Y. 584, 53 L.R.A. 877, 59 N. E. 311.

lection of the insurance moneys for a stipulated percentage, out of which he was to pay Stein for the setting of the fires. As to the fire referred to in the indictment, the two principal witnesses were Gold, the owner of the property which had been inThe indictment was not defective. sured and burned, and Stein, who laid and Phelps v. People, 72 N. Y. 334; People started the fire. Their testimony tended to v. Adams, 85 App. Div. 390, 83 N. Y. Supp. show that Gold had procured insurance 481; People v. Herlihy, 66 App. Div. 534, upon his household goods, pursuant to an 73 N. Y. Supp. 236; People v. Tower, 135 understanding with the defendant that N. Y. 457, 32 N. E. 145; People v. Free-Stein should be employed to make a fire, man, 160 App. Div. 640, 145 N. Y. Supp. 1061; Levy v. People, 80 N. Y. 327; People v. Willis, 158 N. Y. 392, 53 N. E. 29; People v. Knapp, 206 N. Y. 373, 99 N. E. 841, Ann. Cas. 1914B, 243.

and that then the defendant would attend to the adjustment of the loss and the collection of the insurance. With the details of this branch of the trial we need not concern ourselves, for the judgment entered upon the verdict has been unanimously af

Werner, J., delivered the opinion of the firmed, and that imports absolute verity of

court:

The defendant was indicted jointly with one Isador Stein on the charge of arson in the second degree and was convicted. At the appellate division the judgment of conviction was unanimously affirmed, and the case is now before this court on defendant's appeal.

The specification of the first count of the indictment is that the defendant and Stein, in the daytime and on the 1st day of December, 1910, did wilfully and feloniously set fire to and burn a certain dwelling house of one Sam Gold, in the borough of the Bronx, in the city of New York, in

everything not challenged by objection and exception.

The prosecution adduced evidence, from Stein, of nine other incendiary fires in which the defendant is said to have been implicated with Stein, and of one fire in the defendant's own premises with which Stein had no connection. All of this testimony was received by the trial court over the objections and exceptions of defendant's counsel. These exceptions are the defendant's principal reliance on this appeal, although there are others to which we shall have occasion to refer. Before we give more specific attention to the testimony of other

crimes adduced by the prosecution against separate heads. Evidence of other crimes the defendant, it will be useful to have in is, of course, always admissible when such mind the theory upon which its admission evidence tends directly to establish the paris sought to be justified on the one hand ticular crime; and evidence of other crimes and condemned on the other. is usually competent to prove the specific It is one of the distinguishing features crime when it tends to establish (1) motive, of our common-law system of jurispru- (2) intent, (3) the absence of mistake or dence that, as a general rule, a person who accident, (4) a common scheme or plan is on trial charged with a particular crime embracing the commission of two or more may not be shown to be guilty thereof by crimes so related to each other that proof evidence showing that he has committed of one tends to establish the others, (5) other crimes. The reason for this general the identity of the person charged with the rule has been stated by this court in a num- commission of the crime on trial. People ber of decisions, but never more tersely and v. Molineux, supra. By eliminating, as clearly than by Judge Peckham in People inapplicable to the case at bar, the first, v. Shea, 147 N. Y. 78, 99, 41 N. E. 505: second, third, and fifth of these judicial en"The impropriety of giving evidence show-graftments upon the general rule, we come ing that the accused had been guilty of at once to the one which the district attorother crimes merely for the purpose of thereby inferring his guilt of the crime for which he is on trial may be said to have been assumed and consistently maintained by the English courts ever since the common law has itself been in existence. Two antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for many years. One of these methods favors this kind of evidence in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of his whole past life, his tendencies, his nature, his associates, his practices, and, in fine, all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such a course is pursued than where it is omitted. The common law of England, however, has adopted another, and, so far as the party accused is concerned, a much more merciful doctrine. By that law the criminal is to be presumed innocent until his guilt is made to appear, beyond a reasonable doubt, to a jury of twelve men. In order to prove his guilt it is not permitted to show his former character or to prove his guilt of other crimes merely for the purpose of raising presumption that he who would commit them would be more apt to commit the crime in question."

The same subject is discussed at length in People v. Molineux, 168 N. Y. 264, 292, 62 L.R.A. 193, 61 N. E. 286, and more recently in People v. Dolan, 186 N. Y. 4, 116 Am. St. Rep. 521, 78 N. E. 569, 9 Ann. Cas. 453, in People v. Katz, 209 N. Y. 311, 103 N. E. 305, Ann. Cas. 1915A, 501, and in other cases. There are, however, certain recognized exceptions to this general rule which cannot be scientifically classified or enumerated, but which by common consent have long been grouped under five or six

ney invokes. He argues with much force that the evidence of other crimes in which the defendant and Stein are said to have been jointly concerned tends to prove the existence of a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of any one tends to establish the commission of the others. Even if we were to concede the applicability of this rule to the case at bar, we do not find any justification for the reception of the testimony showing that there had been a fire in the house occupied by the defendant. Stein testified that he had nothing to do with that fire, and there is no evidence that it was of incendiary origin, except as that inference may be drawn from, the admission of the defendant to Stein to the effect that one Titelbaum was the incendiary. That admission would, of course, be competent evidence against the defendant on a trial for the particular offense; but it was utterly irrelevant to the question whether the defendant and Stein had entered into a conspiracy which resulted in the fire charged in the indictment. According to the record there was not the remotest connection between the fire on the defendant's premises and the fire charged in the indictment or any other of the nine different fires in which Stein says the defendant was implicated. The fire in the defendant's house occurred before there was any conspiracy between the defendant and Stein, and it had no more relation to the other offenses than an assault or a theft committed by the defendant. The error in receiving this evidence was in itself so serious as to require a reversal of the judg ment; but we cannot stop here, for the record discloses other equally prejudicial errors which must be avoided on another trial.

Stein testified to various conversations with the defendant which tended to estab