Shields v. The State.

to be determined, not by the merits of the cause in which the application is made, but by the merits of the application itself, and therefore affidavits are the only proper testimony. We do not see how the conclusion follows from the premises. To determine the merits of the application the court must put itself, so to speak, in the place of the court before whom the original cause was heard, and carefully weigh all the new evidence with that previously offered, in order to decide whether a re-trial would probably change the result. The new evidence, it will be conceded, must be under the sanction of an oath, and must be thoroughly sifted and weighed by the court; why then should it not for the same reason have applied to it the test of cross-examination, justly described as "one of the principal and one of the most efficacious tests which the law has devised for the discovery of the truth." 1 Greenl. Ev., § 446. To allow the rights of parties to be affected by ex-parte affidavits without the protection of a cross-examination, is almost as unjust as to allow the statement of a witness not under oath. Such a practice would not only affect injuriously the rights of parties, but would open a wide door for imposition upon both witnesses and

court.

The case at bar well illustrates the danger of such evidence. The entire evidence consists of two affidavits signed only by a mark. In all probability the affiants could neither read nor write. The contents of the affidavits might not have been made known, or may have been imperfectly understood; and how, and under what circumstances and inducements, they were obtained, could only be known through the sifting process of a cross-examination. In this case it is found that the witness might have been produced in court without trouble or difficulty.

We think therefore a new trial should be refused on both the grounds before mentioned, and we advise that the petition be dismissed.

In this opinion the other judges concurred.

State v. Byrne.

THE STATE vs. JOHN BYRNE.

Upon an information for burning a building with intent to defraud an insurance company-it was held

1. That it was not necessary to prove the legal existence of the company. That if the company had a de facto organization, and was actually doing busi ness, and the accused believed the policy to have been legally issued, and burned the building with the expectation that the money would be paid and for the purpose of obtaining it, it was sufficient.

2. That if it was necessary to prove the legal existence of the company, which was a foreign one, a certificate of the insurance commissioner of this state that the company had complied with the laws of the state and was authorized to carry on business here, (the statute requiring the commissioner to issue such certificate only on proof of the facts and on a deposit with him of a copy of the charter and a sworn statement of its officers,) and the testimony of the agent of the company here that he had issued numerous policies for the company, were primâ facie evidence of such legal existence; the case not being one in which the company was asserting its rights or in which its legal existence was directly in issue.

3. That the fact that the policy was made payable to a mortgagee of the building was not inconsistent with the allegation that the company insured the building to the accused.

4. That the intent to defraud the insurance company could be inferred from the circumstances.

INFORMATION for burning a dwelling house with intent to defraud an insurance company; brought to the Superior Court for the county of New Haven, and tried to the court, (upon the defendant's election so to be tried under the statute,) upon the plea of not guilty, before Park, C. J.

The information charged as follows: "That on the 14th day of June, 1877, at the town of New Haven, John Byrne of said New Haven, with force and arms, wilfully and feloniously did burn a certain building, to wit, a dwelling house then situated in said town of New Haven, known as No. 126 Fillmore street, of which building said John Byrne was at the time of the burning of the same as aforesaid the owner, with intent thereby to defraud the Republic Fire Insurance Company, a corporation duly organized and existing under the laws of the state of New York, for the purpose of carrying on a general insurance business throughout the United States, and especially in the state of Connecticut, having its VOL. XLV.-35

State v. Byrne.

principal office in the city of New York, and which said corporation had previously insured said building of said John Byrne to him the said John Byrne against loss by fire, to the amount of fourteen hundred dollars, by its written policy of insurance theretofore issued and delivered by it to said John Byrne, a more particular description whereof is to the attor ney unknown, which said policy of insurance was at the time. of the burning of said house in force as a valid policy of insurance. And so the said attorney says that on said 14th day of June, 1877, at New Haven aforesaid, said John Byrne, being then and there the owner of said building as aforesaid, the same wilfully and feloniously did burn, with intent to defraud said insurance company out of said fourteen hundred dollars insurance as aforesaid, against the peace, of evil exam ple, and contrary to the statute in such case made and pro vided."

Upon the trial it appeared that on the 14th day of June, 1877, the defendant was the owner of the house in question; that the house, together with the lot on which it stood, was mortgaged by the defendant to the National Savings Bank of New Haven to secure a loan of $1,200; and that there was accrued interest to the amount of $52 due the bank. It also appeared that about two o'clock on the morning of that day the house was discovered to be on fire, and that it was partially consumed.

For the purpose of proving that the building was insured, the state offered in evidence what purported to be a policy of insurance for $1,400, issued by the Republic Insurance Company of New York, which was procured by the defendant and the premiums paid by him. The state further offered the testimony of one Frederick A. Chase, who testified that the firm of which he was a member caused the policy to be issued, and that he personally procured it to be done; that the insurance company had done business in this state since 1872, and that he had done a fair business for them, and had procured for them many policies during that time in this state. He also testified that at the time of the issuing of the policy the firm of which he was a member held a certificate given

State v. Byrne.

them by John W. Stedman, Insurance Commissioner of this state, authorizing them as agents of the company to transact fire insurance business in this state for the current year, and produced such certificate in court, and the same was by the state introduced in evidence. The certificate stated that the insurance company had "complied with all the laws of this state so far as the same were applicable to fire and marine insurance companies incorporated by or organized under the laws of other states of the United States."

But the state did not prove and did not claim to have proved by direct evidence, that the company had an actual existence, and did not prove or claim to have proved, except by the testimony of said Chase and by the certificate, that it had so complied with the laws of this state as to enable it to issue policies or do business in this state. In regard to this part of the case the defendant claimed that the state was bound to prove the actual legal existence of the company in New York by direct evidence, and that it had complied with all the requirements of our laws relating to foreign insurance companies; but the court overruled this claim and ruled that the evidence was proper, and might be sufficient in the absence of other conflicting evidence to establish the fact beyond. reasonable doubt that the company was duly incorporated, organized, existing, and legally authorized to do business in this state, and had complied with the requirements of the law of this state.

The defendant further claimed that there was a material variance between the information and the proof, in this, that the policy on the face of it was made payable to the bank, the mortgagee, to secure its loan to the defendant in case of loss, and that there was nothing in the policy to show that under any circumstances the loss was payable to the defendant so long as the mortgage interest continued. Upon these facts the defendant claimed that the proof did not sustain the allegation, but the court ruled that the proof did sustain the allegation, and that there was no material variance.

The defendant claimed that in order to prove the intent to defraud the insurance company the state must show that the

State v. Byrne.

intent existed by other evidence than the mere act of burning by the defendant; but the state claimed that the proof of the burning of the house by the defendant, together with the following circumstances proved by the state, namely, that the house immediately prior to the fire was worth no more than the sum of $1,000, that the mortgagee was pressing the defendant for payment of the interest then due, that the building was insured for the sum of $1,400, and that the defendant was out of work, and had been for a long time, and had no money to pay the interest, and had offered the place for sale, was proper and sufficient evidence on the subject. The defendant claimed that the evidence was not sufficient, but the court held that the intent could be inferred from the above circumstances in connection with all the facts of the case bearing on the subject.

The court having found the defendant guilty, he moved for a new trial for error in the rulings of the court.

W. C. Robinson and F. A. Robinson, in support of the

motion.

1. The allegations that the insurance company was duly organized under the laws of New York, and was authorized to do business in this state, are material allegations. People. v. Peabody, 25 Wend., 472; Jones v. The State, 5 Sneed, 346. And they can only be proved by the production of the act of incorporation itself, or by the production of a sworn copy of such act. Stone v. The State, 1 Spencer, 401; Jones v. The State, 5 Sneed, 346; Williams v. Sherman, 7 Wend., 111; U. S. Bank v. Stearns, 15 id., 314. Our statutes provide that no insurance company organized under the laws of any other state shall transact business in this state until it has complied with the requirements of sec. 9, art. 1, part 7 of chap. 2, title 17 of the Revised Statutes. The state was therefore bound to prove affirmatively that this company had complied with all these requirements, for until this had been proved the court could not find that any contract of insurance existed between the defendant and the insurance company by which the latter could be bound. The statement of Mr.