DENIO, Ch. J.

I am of opinion that the evidence admitted was too uncertain and too remote from the point in issue to have any legal bearing upon the case. There was no reason to believe, and certainly no evidence that it was connected with the act of burning the barn. If the matches had been ignited and had gone out without producing any further combustion, as is assumed in the judge's charge, though there was no evidence of such a fact unless it was furnished by the inspection of the matches by the jury, they were no part of the instrumentality used in the principal burning, which must have been effected in some other manner, probably by using matches in direct contact with some of the combustible matter in the building. Besides, the place where they were found was too remote from the building burned to allow an inference of any identity of design between the two acts at the time they were committed. Moreover, the matches were found about a week after the burning of the barn, and the evidence did not indicate any length of time between the placing them there and the finding of them. If they were put where they were found with an evil intent, it was presumptively with a view to burn the house, and not the barn. The evidence, therefore, tended to show the commission of another offense than the one for which the defendant was indicted, or the attempt to commit one; and the general rule is, that on an indictment for one criminal act you cannot, in order to prove the criminal intention of the accused, prove the commission of another for which he was not indicted.

Passing by, for the moment, the inference supposed to be derivable from the comparison of the matches, we have nothing to connect the prisoner with the act of depositing those which were found, except his threats, and the malicious state of mind of which they were in evidence. This, it may be conceded, raised a presumption of some weight that he had burned the barn. It was presumably fired by some person who had malice against Marshall, the owner. A presumption of the same kind and the same status arose out of the same circumstances, that he had attempted to burn the wood-house and dwelling. It was no stronger than that which related to the principal fact, and it was weaker because it derived no aid from the evidence that the prisoner falsely pretended that he was at home and in bed on that evening when the barn was burned, which evidence did not apply to the depositing the matches, for the want of proof of the time when that was done. But suppose the presumption that the prisoner did each of these acts was equally strong. The proof as to one could not tend to prove his criminality in regard to the other. We cannot presume that he burned the barn, because we presume that he attempted to burn the house. One presumption will not aid the other. The infirmity which attaches to the one, equally attaches to the other. The logic upon which circumstantial evidence is based, is this: We know, from our experience, that certain things are usual concomitants of each other. In seeking to establish the existence of one, where the direct proof is deficient or uncertain, we prove the certain existence of the co-relative fact, and thus establish with more or less certainty, according to the nature of the case, the reality of the principal fact. But the reasoning is a perfect fallacy, if the defect of proof which renders it necessary to call for the aid of the collateral circumstances equally attached to such collateral circumstance. It is like the blind leading the blind.

Supposing this to be too plain to require further explanation, I proceed to consider whether the fact that the matches found under the wood-house, were of the same kind with those which the defendant's wife had, alters the case. The fact that they were different from those which were kept in the prosecutor's house, only goes to protect him and his family from the imputation of having left them where they were found. But the matches found were identical in kind with those which were used in the defendant's house. They were, however, a very common article, and in the hands of almost everybody. Mr. Marshall said that they could be had at any store in the county, and he supposed at almost every house. There was nothing peculiar then in the fact that the defendant had them. If they attached suspicion to him, they would have equally implicated all the neighboring dealers and inhabitants. We cannot, therefore, say that the collateral fact is sufficiently established to allow it to be made the basis of an argument to prove the existence of the principal cause. For myself, I do not think the identity of the matches advances the proof at all. Circumstantial evidence, I repeat, consists in reasoning from facts which are known or proved, to establish such as are conjectured to exist; but the process is fatally vicious if the circumstance from which we seek to deduce the conclusion depends itself upon conjecture.

I am of opinion, therefore, that the court of sessions fell into an error in receiving the evidence, and in its advice to the jury that they might consider it, in coming to the conclusion, that the prisoner was guilty of the arson charged. The judgment appealed from should be affirmed.

The counsel for the defendant in error contended that we could not entertain this writ of error, because, as he insisted, the people could not bring error where the Supreme Court, after reversing a judgment, had ordered a new trial. But he overlooked a decision of this court upon the precise point. ( The People v. Clark, 3 Seld., 385.)

He also contended that there ought to have been an assignment of errors and joinders. But those forms were abolished by statute, in criminal cases, more than thirty years ago. (2 R.S., 741, § 23.)

Judgment affirmed.