ment therefor at the rate of ifty cents per day, and that, other than this, there is no authority vested in the court to direct.

I have reached this conclusion with much reluctance. Petitioner is a laboring man, and apparently an honest and industrious citizen; because of his misfortune in witnessing this homicide and certain conditions for which he now seems not to have been at fault he was, without warning, taken from employment which enabled him to comfortably support himself and incarcerated for practically five months. He was then released only to find himself without either employment or money, and at a time of year when it is even forbidden to turn a criminal convict loose to shift for himself. If this be the law, and I think it is, we are more considerate of the welfare of evil-doers than of those whose only offense is their unfortunate ability to serve the State.

In justice and equity this man should be compensated. It is not within the power of the court to do this; the remedy for such hardships must come from the legislature.

Motion denied, with costs.

SUPREME COURT-APP. DIVISION-SECOND DEPT., December 30, 1912.

THE PEOPLE v. BARAVCH SCHNEIDER.

(154 App. Div. 203.)

(1.) ARSON*-PROOF JUSTIFYING CONVICTION-EVIDENCE-DECLARATIONS TO

FIRE MARSHAL.

In a prosecution for arson a fire marshal of the city of New York, who called upon the defendant after his arrest, stated his official duties and that anything the defendant said might be used against him at trial, may testify as to voluntary statements made by the defendant while endeavoring to convince the fire marshal of his innocence. (2.) SAME SEC. 779 CHARTER OF NEW YORK—DeclaratioNS NOT MADE UNDER OATH.

The provision in section 779 of the charter of the city of New York that testimony or evidence taken by a fire marshal in the discharge of his duties is not to be used in any criminal proceeding applies only to testimony given before the fire marshal under oath and does not apply to voluntary declarations made by a person who is in custody on suspicion of having committed a crime.

(3.) SAME-TESTIMONY OF POLICE OFFICER NOT GIVEN BEFORE MAGISTRATE. Where the defendant's counsel has been allowed to question such fire marshal when placed upon the stand by the People with a view of determining his competency as a witness, it is not error for the court to refuse to allow him to cross-examine the witness as to the truth of statements made by him, that being a matter to be dealt with on crossexamination or upon the defendant's own case. (4.) SAME.

The fact that a police officer who arrested the defendant did not testify before the magistrate that he smelled gasoline on the defendant's clothes is no reason for excluding his testimony to that effect upon the trial.

(5.) SAME.

Moreover, the court in its discretion might properly exclude questions on cross-examination put to the police officer who arrested the defendant, asking whether he did not know that the odor of gasoline on the clothing of the defendant was an important fact and whether he had previously testified to that effect before any other court.

* See note on Arson, Vol. 24, page 175.

(6.) SAME EVIDENCE.

It was not error for the court to admit in evidence books and papers found upon the premises showing the business relation between the defendant and the record owner of the premises.

(7.) SAME.

As the city charter requires a fire marshal to investigate supposed cases of arson, it is not reversible error to exclude a question asking the marshal if he had charge of the preparation of the case for trial, as that was a duty incident to his office.

(8.) SAME-INTERESTED WITNESS.

A witness is not an interested witness because he testifies in support of a prosecution based upon his investigation.

(9.) SAME DISCHARGE OF JURY WITHOUT POLLING.

It is not reversible error for the court to discharge the jury upon rendering their verdict without polling them where the defendant, being present and represented by counsel in court, made no request therefor.

APPEAL by the defendant, Barauch Schneider, from a judgment of the County Court of Kings county, rendered against him on the 12th day of June, 1911, convicting him of the crime of arson.

· Frederick N. Van Zandt, for the appellant.

Edward A. Freshman, Assistant District Attorney (James C. Cropsey, District Attorney, and Hersey Egginton, Assistant District Attorney, with him on the brief), for the respondent.

WOODWARD, J.:

The defendant was charged with the crime of arson in the first degree, was tried before the County Court of Kings county and found guilty as charged, and sentenced to fifteen to thirty years in Sing Sing prison. On the twelfth day of June, on the day on which the judgment was entered, a certificate of reasonable doubt was granted by the county judge, and bail was fixed at $15,000. This certificate of reasonable doubt was based

upon two rulings of the court. The first of these was a ruling upon the admissibility of testimony on the part of a fire marshal, who had a conversation with the defendant after he was arrested and while he was in jail, the objection being that under the provisions of section 779 of the Greater New York charter (Laws of 1901, chap. 466) testimony or evidence taken by the fire marshal in the discharge of his duties is not to be used in any criminal proceeding or action. The second ruling was that of the court in refusing to continue a preliminary questioning of the said fire marshal in relation to the circumstances under which the conversation was held, the defendant's counsel urging that he was then prepared to show the testimony inadmissible as against the defendant, and as this latter is now insisted upon as constituting "the most prejudicial and gravest error committed by the Trial Court," we will dispose of that now.

The evidence shows without contradiction that the defendant was arrested at two-forty-five a. m., on the 19th day of September, 1910, by Police Officer Reich, who heard an explosion at 677-A Sixth avenue, Brooklyn, and who immediately thereafter saw two men coming from the premises, the defendant running directly into his arms, apparently without seeing the officer, owing to the fact that he had one of his hands over his eyes. Questioned by the officer where he lived, defendant. gave his residence as One Hundred and Thirty-Fifth street, Manhattan, and said that he had just come from Coney Island, and that he was going up to Twentieth street to take a Sixth avenue car. Defendant said he did not know the owner of the building from which he had just emerged, and gave as his reason for being at this point that he had been to Coney Island and had fallen asleep in the elevated train and not wanting to oversleep had come to Sixth avenue to take a car. It subsequently developed from the evidence that the defendant had himself been the owner of the premises; that they had been transferred back and forth between the defendant and one

Diamond several times, and at the time of the explosion that the title to the premises stood in the name of Diamond, who was shown to be associated with the defendant in a saloon in Manhattan and in other business matters, and that Diamond had the property insured. The officer took the defendant to the premises where the explosion occurred and found the cellar filled with flames, and there was much testimony in relation to the conditions found about the premises, the fact of the explosion, and the necessary facts to constitute the crime charged, and, upon the merits, there does not appear to be any question that the verdict is supported by the weight of evidence.

One William R. Ferris, a deputy fire marshal, was called as a witness on behalf of the People, and testified that he reached the scene of the fire in the discharge of his duty of investigating its origin, etc., at about four o'clock in the morning of the fire; that he went over the premises, ascertaining the facts necessary for his purposes, and that at about half-past four o'clock he visited the defendant at the station house at Fifth avenue and Sixteenth street and had a conversation with him. At this point counsel for defendant interposed an objection that it was incompetent. This objection was overruled. Defendant's counsel then said: "I desire at this time to ask this witness one or two questions first before your Honor ultimately rules on that objection." No objection appears to have been interposed, and defendant's counsel was permitted to bring out the following from this witness: "I say that I am a duly appointed assistant fire marshal of the city of New York and went to the station house where the defendant was after he had been arrested in connection with the fire, but what the charge was against him I don't know. I made the charge of arson the following morning. I knew when I went to see him that he had been arrested on account of his supposed connection with this fire. I saw him in the captain's room. I told him I was an assistant fire marshal. At that time I had a book with me containing extracts