fence which ran along the Webster road at the top of the ravine. Discolored shavings of wood were found in the barrel, and other shavings, apparently discolored in the same way, were found in the Galbo barn. A chemist showed that all the shavings had been colored by the same dye. In the stall of the barn there were breaks in the cement which indicated a recent excavation of a size suita the wagon and the horses only. Others had | tailboard of the wagon showed traces of noticed the barrel. Others, though unac- white paint. White paint was found on the quainted with the driver, recalled his appearance. An hour or two later the same wagon with the same driver came back along the same road. Those who saw it then make no mention of a barrel. Two men identify the driver as Domenico. One of them jumped on the wagon and rode part of the way. By 8 o'clock on that morning the body of Francesco Manzella was at the bootom of the ravine. It had come there since the after-ble for a grave. But nothing else that even noon of the day before. On Sunday, October 29th, about 3 o'clock in the afternoon, a young man went to the ravine to set a trap for a skunk. There was no barrel and no body then. Eight o'clock the next morning the same man went to the ravine, found the barrel and the dismembered body, and notified the police. On the afternoon of the same day the Galbo brothers were in jail. A trail of circumstantial evidence leads from the ravine to the Galbo store. The barrel was a wine barrel, with iron hoops; in the Galbo store four barrels of the same kind were found by the police. Adhering to the barrel in the ravine was a fragment of a printed card. The card of one Blandi, a wine dealer of Pittsburg, was identical in size and form and space of type. Five barrels of Blandi's wine were sold in March, 1910, to Joseph Galbo. The waybill and receipt produced by the railroad company establish its delivery. Five barrels reached the Galbo store; four were still there after the body was discovered. Near the body in the ravine was a printed time card. The cards had been printed for one Hahn of the McCabe Electrical Company, who kept them in his desks. The desks were sold to the Capon-Sullivan Company, which occupied a store owned by Joseph Galbo. It was next door to the store of the Galbo Brothers. Less than a week before the murder, on October 23, 1911, a member of the CaponSullivan Company found the time cards in the desks and threw them into the Galbo yard. As late as November 1st some of the cards were discovered in front of the Galbo barn. Near the barrel in the ravine there was a part of a burlap sack, which had once been filled with chicken feed. It was stained with blood, and had doubtless been used to cover the top of the barrel. It was stamped with the label of the Dickinson Company of Chicago. It bore the tag of "Lathrop's Pet Shop." Six bags of the same kind, with the same label, were found in the Galbo store, and there was another in the Galbo wagon. A fortnight before the murder, Joseph Galbo bought from nine to twelve sacks of chicken feed from the Clark Douglass Company, which bought them from "Lathrop's Pet Shop." Near the burlap sack were also parts of a rope. Rope of the same material and weight was suspended from hooks, and carried bunches of bananas in the Galbo store. The rope from two hooks was missing. The remotely suggested guilt was found either in the barn or in the store. The police took possession at once, ransacked the buildings from top to bottom, tore the woodwork open, and searched in every nook for traces of blood and for implements of crime. Nothing was found. A detective was then stationed in a nearby cell to listen to the brothers' talk. Domenico said: "They are looking for the driver of the wagon." "You drove the wagon," said Joseph. "I know I did," said Domenico. [1] This in rough outline was the people's case. The defendant met it with a sweeping denial. He denied that he had driven a wagon along the Webster road on the morning of October 30th. He often went along that road with his burden of bananas, but he did not go that day; that day he drove to Fairport, in a different direction. He did not leave the barn till about 6 o'clock, and, when he left, he did not take the gray horse along. The gray horse was sick, and could not go. That is the defendant's statement. But a witness for the people, one Cira, who worked in the Galbo barn, said that he reached there before 6, and that Domenico and the gray horse were gone. It would not be helpful to review the defendant's narrative at length. The jury found him guilty of murder in the second degree, and to reach that verdict must have found that his narrative was false. The credibility of witnesses is not for our consideration, except where the judg ment is of death. We must therefore assume that the defendant did drive along the Webster road in the early morning of October 30, 1911. He was there, and spoke falsely when he denied it; he was bearing with him some burden, which to onlookers seemed to be a barrel; and about that hour a barrel, proved by many tokens to have come from the Galbo store, landed with the dead body of Francesco Manzella at the bottom of the ravine. The jury had the right to find that Domenico Galbo had the body with him, and threw it into the ravine to bury it from the sight of men. [2] The people say that these acts of possession and concealment stamp the defendant as the murderer. They do, we think, beyond question justify the inference that in some way and at some stage he became connected with this crime. But the question remains: In what way and at what stage? Was he a principal, and, if so, did he himself commit the offense, or aid and abet its commission, or counsel or induce another to commit it? | Learned commentators have said that in Was he, on the other hand, an accessory aft- many cases the wrong inference has been er the fact, aiding the offender to avoid ar- drawn. Best on Ev. § 210; Burrill, Circ. rest or punishment? Principals in the first Ev. 456; Wills Circ. Ev. (6th Ed.) 91, 92. and second degree at common law, and ac- Men whose crime was that they had received cessories before the fact (Whart. Cr. L. [11th stolen property have been convicted of stealEd.] §§ 240, 245, 263) are classed alike as ing it themselves. Best, supra. A warning principals to-day (Penal Law, § 2). Accessor- was sounded as long ago as the time of ies after the fact are classed simply as ac- Lord Hale. These presumptive evidences, he cessories. Which of these degrees of guilt said, "must be very warily pressed, for it is attaches to the defendant? better five guilty persons should escape un die.” 2 Hale, P. C. 289. He couples the warning with instances drawn from his own experience where wrong had been done. [4, 5] The problem is a hard one. To solve it we must steadily bear in mind that the inference of guilt to be drawn from possession is never one of law. It is an inference of fact. Wigmore on Ev. § 2513. Other facts may neutralize it, or repel it, or render it so remote or tenuous or uncertain that in a given case we should reject it. The man who secretes a body and lies about it may be found in most cases to be concealing his own crime, and therefore to be the murderer. That is so because personal guilt, unless the circumstances point to some other connection, is the reasonable inference. We are not to assume without evidence that some one else is implicated. He who conceals the crime may be taken to be the perpetrator. But how, if he proves an alibi? Are we then at liberty to infer that, even if he did not commit the murder himself, he incited some one to do it, and thus, in spite of his proved absence, hold him as a principal? A. is [3] It is the law that recent and exclusive punished than one innocent person should possession of the fruits of crime, if unex- | plained or falsely explained, will justify the inference that the possessor is the criminal. That rule has most frequently been applied in cases of burglary (Knickerbocker v. People, 43 N. Y. 177), and larceny (Stover v. People, 56 N. Y. 315), and receiving stolen goods (Goldstein v. People, 82 N. Y. 231); but it is not unknown in cases of murder (People v. Jackson, 182 N. Y. 66, 78, 74 N. E. 565; Wilson v. U. S., 162 U. S. 613, 619, 16 Sup. Ct. 895, 40 L. Ed. 1090; Williams v. Com., 29 Pa. 102, 106). The highwayman kills his victim; the purpose of the murder is robbery; the same inference that identifies the robber identifies the murderer. Possession of the dead body-the subject of the crime itself-has much the same significance as possession of jewels or money or other fruits of crime. If there is any distinction, it is one chiefly of degree. The fruits of crime are themselves objects of desire; the possessor, at least presumably, has them because he wishes to enjoy them. But the possessor of the dead body wishes only to be rid of it. Its possession is thus associated more read-seen to shoot B., but C. later has the body, ily than that of money or jewels with the notion of concealment and thus with the form of guilt that attaches distinctively to the accessory after the fact. Often an attempt to secrete the body has played no other part than that of corroborative evidence. State v. Dickson, 78 Mo. 438; People v. Jackson, supra; Burrill, Circ. Ev. p. 440. We do not say that it may not sometimes, if not explained or rebutted, be sufficient by itself. We must look to all the circumstances. Only half of the problem, however, has been solved when guilty possession fixes the identity of the offender. There remains the question of the nature of his offense. Here again the facts must shape the inference. Is the guilty possessor the thief, or is he a receiver of stolen goods? Judges have said that, if nothing more is shown, we may take him to be the thief. R. v. Langmead, 9 Cox, C. C. 464. But as soon as evidence is offered that the theft was committed by some one else, the inference changes, and he becomes a receiver of stolen goods. Goldstein v. People, supra; People v. Friedman, 149 App. Div. 873, 877, 134 N. Y. Supp. 153; 2 Russell on Crimes (6th Ed.) p. 287 et seq. Sometimes the circumstances may make it proper for a jury to say which inference is the true one. R. v. Langmead, supra. and will not tell how he came by it. The law must say whether his silence is to condemn him as principal or as accessory. The same problem arises if a child or a frail woman secretes the body of a man who has been robbed and murdered on the highway. In these cases, the inference of actual perpetration is repelled. Even then, incriminating inferences remain possible; but, unless other circumstances are shown there is no principle of selection, aside from the presumption of innocence, to guide the choice between them. The guilty possessor of the body, though he did not use the weapon, may still have aided and abetted; but, unless there are tokens that several joined in the affray, the likelihood of his presence is no greater than the likelihood of his absence. He may still be an accessory; whether before the fact or after is the problem. If the circumstances make one inference just as reasonable as the other, we must give the defendant the benefit of the conclusion that would mitigate his guilt. People v. Lamb (Ct. of App.) 2 Abb. Prac. (N. S.) 148, 165. [6, 7] In this case a legless cripple is charged to have murdered a strong man. The murder followed a fierce fight in which the strong man was beaten and wounded. It seems certain that the wounds were inflicted rarefy them beyond measure. A body is hidden. The evidence forbids the inference that the hider is the slayer. That inference excluded, something more must be shown, some probability of time or place or circumstance, before the concealment of the body can be said to prove anything more than concealment of a crime. Small things may turn the scale. But something there must be. [9] We are thus led to the conclusion that the defendant was not proved to be a principal in the commission of this crime. He ought to have been indicted, and might then have been convicted, as an accessory. Penal Law, § 2. It is a mere accident that the jury found him guilty of murder in the second degree. To sustain their verdict we must be prepared to hold that on the same evidence they might have sent him to his death. The law is not so lax in its forfeiture of life. We cannot close this record with any sense of assurance that his connection with the crime preceded the event. The people charge in the indictment that the brother, Joseph, was one of the murderers. Like the defendant, he did not show a scratch or a blood stain. If the crime was his work, the defendant had a strong motive for concealment. If it was another's work, the mystery is deepened. We know that Manzella had led a life of crime in which bitter enmities must have been aroused, and we cannot say how the defendant was connected with the man or men by whom those enmities were avenged. In connecting him as a principal, conjecture has filled the gaps left open by the evidence, and the presumption of innocence has yielded to a presumption of guilt. and the head severed as parts of a single | multiplying them, we must not refine and combat. We cannot with reason say that the cripple did these things. Least of all can we say that he was able to do them and escape without a scratch or a blood stain. "Insufficient evidence is, in the eye of the law, no evidence" (Matter of Case, 214 N. Y. 199, 203, 108 N. E. 408, 409); and, when we say that something is impossible, we do not mean impossible in the strictest sense, but so nearly impossible that a jury ought not to believe it (Hudson v. Rome, W. & O. R. R. Co., 145 N. Y. 40S, 40 N. E. S; Matter of Harriot, 145 N. Y. 540, 545, 40 N, E. 246). But as soon as we concede that the defendant did not kill Manzella, we lose ourselves in mystery when we attempt to measure the degree of his connection with the crime. We have no evidence, | direct or circumstantial, that the actual perpetrator was assisted by any one. We have nothing to tell us when or where the crime occurred. We have no sign that it was committed in the defendant's presence. He may have known of it in advance, and planned or encouraged it. He may have learned of it later, and attempted to shield the criminal. The trial judge told the jury that the burden was on the people to prove beyond a reasonable doubt that the defendant, though he did not kill with his own hand, was none the less a principal; he must have become connected with the crime while Manzella was yet alive. If all that he did was to help the murderer to escape, he was not a principal, but an accessory, and the jury under the charge were then required to acquit him. Penal Law, § 2. The charge is sound, but it propounded to the jury a problem incapable of reasoned solution. Men do become accessories after the fact, and help others to cheat the law. Particularly is that so when they are related to the perpetrator. We have had to deal with such cases in this court. Such a case was People v. Farmer, 196 N. Y. 65, 89 N. E. 462, where a husband tried to shield his wife by burying the victim's body That the defendant has lied about the crime does not prove that he must have been implicated as a principal. There is a motive to falsify, whatever the degree of the connection. An accessory after the fact may be punished by imprisonment for not more than | five years, or by a fine of not more than $500, or by both. Penal Law, § 1934; Consol. Laws, c. 40. There is thus a serious penalty to be avoided. Moreover, the very fact that one becomes an accessory is proof of the strength of the desire to shield the principal. [8] In these circumstances we cannot see that the jury had any chart or compass by which to guide their judgment. A conviction upon circumstantial evidence is not to be sustained unless the circumstances are inconsistent with innocence. People v. Harris, 136 N. Y. 423, 453, 33 N. E. 65; Lopez v. Campbell, 163 N. Y. 340, 347, 57 N. E. 501. We may multiply inferences at times, but, in The judgment of conviction should be reversed, and a new trial ordered. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, and SEABURY, JJ., concur. HOGAN, J., concurs in result. Judgment of conviction reversed, etc. (218 N. Y. 301) STETSON v. BOARD OF EDUCATION OF CITY OF NEW YORK. (Court of Appeals of New York. May 30, 1916.) 1. SCHOOLS AND SCHOOL DISTRICTS 144(1) -SALARY OF PRINCIPAL-PERFORMANCE OF DUTY. Performance of the duties of the position of principal of a school of the third order in the city of New York did not in and of itself entitle the party performing them to the salary for the position fixed by the by-laws of the board of education. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 308, 314; Dec. Dig. 144(1).] 2. SCHOOLS AND SCHOOL DISTRICTS 131PROMOTION OF PRINCIPAL STATUTES AND BY-LAWS. Under Greater New York Charter (Laws 1901, c. 466) §§ 1089, 1090, and by-laws and regulations of the board of education enacted For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes John E. O'Brien, of New York City, for ap in 1898 and June, 1902, prescribing the licens- [ reversing judgment for plaintiff, trial by jury es to be obtained by teachers and principals in having been waived, and dismissing the comschools of the borough of Brooklyn, the board plaint upon the merits (165 App. Div. 476, of superintendents were forbidden to nominate, and the board of education to appoint or pro- 150 N. Y. Supp. 847), plaintiff appeals. Judgmote, to the position of principal of a school ment affirmed. of the third order, a principal of a school of the fourth order, who had never been exempted from the examination prescribed for applicants pellant. Lamar Hardy, Corp. Counsel. of for a license as principal of an elementary school, and had never held such a license, and never been entered upon the eligible list containing names of those holding principals' licenses. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 287; Dec. Dig. 131.1 3. SCHOOLS AND SCHOOL DISTRICTS 55SCHOOL OFFICERS-EXERCISE OF POWERS. New York City (Charles McIntyre, of New Term recovered, in accordance with the alCOLLIN, J. The plaintiff at the Trial legations of his complaint, a judgment for arrears of salary as principal of public school It is a constitutional principle that powers No. 104 of the borough of Brooklyn for the given to public officers, such as a board of edu- period from December, 1903, to the date of cation and the board of school superintendents, or others. for public purposes or the public ben- the commencement of this action. The Apefit, are always to be exercised when the occa-pellate Division reversed the judgment and sion arises. dismissed the complaint upon the merits. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 137, 138; Dec. Dig. 55.] 4. CONSTITUTIONAL LAW 102(1)-VESTED RIGHTS-RIGHT TO TEACH SCHOOL. While rights which have vested under and by virtue of a statute cannot be disturbed by a subsequent statute, the right to teach in the public schools is not vested and is always subject to regulation at the hands of the Legislature. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 225, 356; Dec. Dig. 102(1).] 130 5. SCHOOLS AND SCHOOL DISTRICTS The salient facts are: Prior to 1890 the plaintiff became, under the general statutes, by virtue of a diploma issued by a state normal school, as well as by a certificate of qualification granted by the state superintendent of public instruction, licensed and authorized to teach in any of the public or common schools. Laws of 1866, c. 466, § 6; Laws of 1864, c. 555, § 15, as amended by Laws of 1888, c. 331, § 1. In 1890 and through many years prior thereto, the board of education of the city of Brooklyn was vested with the entire charge and direction of the public schools of the city, was empowered to make its own by-laws and regulations, not inconsistent with the laws of the state, and through a city superintendent of schools, or superintendent of public instruction, as denominated in the later statutes, to examine the qualifications of teachers and grant certificates in such manner and form as might be prescribed by the state superintendent. Laws of 1850, c. 143, §§ 1, 2, 5; Laws of 1873, c. 420. While the charter of the city of Brooklyn contained certain provisions relating to the board of education and the schools, those provisions did not affect the enactments we have stated. Under those enactments there existed through the period prior to the creation of the present city of New York in 1897 (Laws of 1897, c. 378) byAn instrument executed by a principal of laws or regulations of the board of educaa school of the fourth order in the borough of tion requiring the examination of the persons Brooklyn, after his retention in the position to be employed as teachers or principals in when the school was raised to the third order, the schools, providing for the grading and in violation of Greater New York Charter, § 1089, which formally waived all claims for in- the effect of the certificates or licenses grantcrease of salary, in consideration of being per-ed to those who passed the examinations, and mitted to remain principal of a school of the third order, was void and inoperative as part of a transaction forbidden by the statute. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 308, 314; Dec. Dig. 144(1).] [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. § 285, 286; Dec. Dig. 130.] 6. SCHOOLS AND SCHOOL DISTRICTS 144(1) PROMOTION OF PRINCIPAL - INSTRUMENT WAIVING SALARY-STATUTE. that no person should be appointed a teacher or principal who did not hold the certificate prescribed by the by-laws evidencing the qualifications for the appointment. In the year 1890 the plaintiff entered certain of Appeal from Supreme Court, Appellate Di- those examinations and obtained two cervision, First Department. Action by Arthur D. Stetson against the Board of Education of the City of New York. From a judgment of the Appellate Division tificates entitling him to teach any class in a public school of the city. Thereafter and in September, 1890, he was appointed and remained a teacher until November, 1902. In For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Graduates of col visors, heads of departments, assistants and all 1899, having passed an examination there-service of principals, branch principals, superfor, the city superintendent of schools granted the plaintiff a certificate known as "Head of Department A," which entitled him to be appointed as the head of a department. In March, 1902, the elementary day schools of the borough of Brooklyn were divided into five orders according to the number of classes. The fourth order consisted of schools having from 6 to 11 classes; the third order consisted of schools having from 12 to 27 classes. A person entitled to be appointed as the head of a department might lawfully be appointed as a principal of a school of the fourth order only. In November, 1902, the plaintiff was appointed principal of school No. 104, which was then of the fourth order. His salary as such principal was $2,400 per annum. In December, 1903, school No. 104 was transformed, by the adding of classes, into a school of the third order, and the plaintiff continued to preside over it, and was recognized by the defendant as its principal, without any new or further appointment, until the commencement of this action. His * services therein were accepted and approved as fit and meritorious by the defendant. Through the period he was paid and accepted as his salary $2,400 per annum.. In case he was a legally appointed principal of the school after December, 1903, he should have received, pursuant to the by-laws of the defendant (see Pitt v. Board of Education of N. Y., 216 N. Y. 304, 110 N. E. 612), for the first year $2,750, for the second year $3,000, for the third year $3,250, for the fourth These provisions apply to applicants for and each subsequent year $3,500. The action is to recover the difference between the the position of principal. Matter of Fuerst amount he did receive and the amount heV. Maxwell, 154 App. Div. 166, 138 N. Y. Supp. should, as he alleges, have received. [1] If the plaintiff was the principal de jure of the school of the third order the judgment of the Trial Term was right; otherwise, it was erroneous and the judgment of the Appellate Division was right. The right to the position determined the right to the salary incident thereto. Performance of the duties of it did not in and of itself entitle to the salary. Thomson v. Board of Education of N. Y., 201 N. Y. 457, 94 N. E. 1082. Relevant statutes and by-laws additional to those mentioned existed. The Greater New York Charter (Laws of 1897, c. 378; Laws of 1901, c. 466) constituted a board of examiners in the department of education to examine all applicants required to be licensed and to issue to them such licenses as they are found entitled to receive. It provided: * 1090. It provided further: "Principals, branch principals, heads of departments, teachers, assistants and all other inembers of the teaching staff, shall be appointed by the board of education on the nomination of the board of superintendents. Such nominations and appointments shall be made except for teachers, for the several local school board in the case of high schools or training schools districts respectively, and when so made the principals, branch principals, heads of departments, teachers, assistants and all other members of the teaching staff shall be assigned to duty to such schools, and to such positions in such schools, as the board of superintendents shall determine. * The nominations provided for above must be made from the list of properly certificated principals and teachers and other persons eligible for service in the positions to be filled, in the regular order of the standing of the candidates on said lists, provided, however, that the board of superintendents may consider for each appointment the three persons whose names are highest on the appropriate eligible lists." Section 1090 of the revised charter. "The board of education on the recommendation of the board of superintendents shall designate, subject to the requirements of the state school laws in force when this act takes effect Under the authority of those provisions or that may thereafter be enacted, the kinds and of the express power to enact by-laws or grades of licenses to teach which may or shall be used in the city of New York together with and regulations (section 1068), the board of the academic and professional qualifications re- education in 1898 and in June, 1902, enacted quired for each kind or grade of license. The by-laws prescribing the licenses to be obboard of education, on the recommendation of tained by the teachers and principals in the the board of superintendents, shall also designate, subject to the like limitations, the academi-schools of the borough of Brooklyn. The bycal and professional qualifications required for laws required persons to be appointed prin |