2 N.Y.S. 376 | N.Y. Sup. Ct. | 1888
The appellant was Indicted jointly with Stephen Adwin, John McKibben, and Dennis Reardon, with having on the 18th day of July, 1886, at the city of Rochester, in and upon one Sophia Kaisar, violently and feloniously made an assault, and her, the said Sophia Kaisar, then and there, against her will, and without her consent, and by forcibly overcoming her resistance, feloniously and forcibly did ravish, carnally know, and have sexual intercourse. It is contended in the first place that the verdict is against the weight of evidence. It appears from the evidence that Sophia Kaisar was at the time unmarried, and was a servant girl in the employ of one Westfall, on Harvard street, in the city of Rochester. That she was keeping company with one George Bahls, whom she subsequently married. That on Sunday evening, the 18th of July, 1886, she went for a walk with Mr. Bahls, through Nicholas park, in that city. That while in the park they met the four persons indicted, who came to them, one saying to Bahls that he wanted him to come with him, and the defendant, Batterson, took hold of the shawl of Miss Kaisar; but that they got away from them at that time, and went on walking in another part of the park. That about a half an hour afterwards the same four persons again came up witli them, and McKibben, Reardon, and Batterson took hold of Bahls, one by the throat, the defendant, Batterson, having a club, and pushing from behind, and took him away from the girl, while Adwin took hold of her, and threw her upon the ground. That she
It is contended, in the second place, that there is a variance between the ■evidence and the indictment; that the indictment should have charged specifically the acts of the defendant, Batterson, which they sought to prove upon .the trial as constituting the crime; and the case of People v. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325, is relied upon to sustain this claim. It will be ■observed that the four persons are indicted together as principals. Section .29 of the Penal Code defines the principal as “a person concerned in the commission of a crime, whether he directly commits the acts constituting the offense, or aids and abets in its commission, and whether present or absent; and a person who directly or indirectly counsels, commands, induces, or procures another to commit a crime,” etc. Ho question is made but that this provision is broad enough to cover the acts of the defendant, and make him a principal. But it is claimed that his acts should be set forth showing that lie was a principal within the provisions of this section. While the provisions .of the section defining a principal are broader and more comprehensive than :the prior statutes, and embrace what was before known as an accessory before the fact, we do not understand it to have changed the form of pleading ■in the cases where a person was principal at common law or under the statute. Such we regard the defendant, Batterson. The crime was commenced when these persons took hold of Bahls and the girl to separate them. Batjer•son was then present, and, by taking part in pushing Bahls away from the girl, was aiding and assisting in their separation, so that the other three could .have connection with her, and not be prevented by her friend and escort, Bahls. This would make Batterson a principal at common law as much as -though he was present, aiding and assisting burglars in the breaking open of a house, although he did not personally enter.
A more serious question is raised in reference to the admission of evidence. Upon the trial Mrs. Westfall was sworn as a witness on behalf of the people, .and gave evidence, as to the condition that Miss Kaisar was in on her return to the house on the evening in question, to the effect that she was very much .agitated and excited, and appeared much frightened; that her hair was disordered, her-face red, eyes swollen; that she was crying, and continued crying for some time afterwards; she appeared very different from usual, and as though she had something on her mind which was greatly troubling her; that
Barker, P. J., and Bradley, J., concurred. Dwight, J., concurred in. the result.