98 N.Y.S. 361 | N.Y. App. Div. | 1906
Lead Opinion
The indictment charges that the crime was committed on the 21st day of July, 1904. The trial was had on the twenty-fourth day of October thereafter. The complaining witness, Jennie Herzog, was only nine years of age. She lived with her parents and three brothers and three sisters on the upper floor of a tenement building, known as Nos. 57 and 59 Pitt'street, in the city of New York. Two of the brothers were aged sixteen and fourteen or twelve years respectively, and the other brother and all the sisters were younger than Jennie. • The defendant was born in Russia, had been in this country thirteen or fourteen year’s, spoke English, was twenty-eight years of age, had boarded with the Herzogs the year before- six months, and at this time four months, and was employed as a furrier, earning from eight to ten dollars per week “ sometimes * * * in the season.” On the night of the twentieth of July Mrs. Herzog and
It is undisputed that a policeman was summoned by the eldest boy and that oh the arrival of the officer Jennie’s father charged defendant in the presence of the officer with haying assaulted and ruined his child, and that on being placed under arrest and charged by the officer with the crime of assaulting' the child, defendant denied it. After the arrest of the defendant and some time on the same day — the hour does not appear — Jennie was taken to the office of the Society for the Prevention of Cruelty to Children and examined by Dr. Brown. He was called by the prosecution and testified from memory as to what he found, although he admitted having made a memorandum concerning the examination, and that during six or seven years he had examined, the private parts of over five hundred children for the society. He said that the parts had been lacerated by the penetration of a blunt instrument which ruptured the hymen, and that the conditions he found indicated that the penetration had .occurred about two weeks before, causing acute inflammation; and yet he testified that “ the mucous membrane of the internal genitals was rubbed off and bleeding.” His testimony was not consistent. The jury were not obliged to believe that bleeding would continue two weeks. Other evidence in the case relating to the weather and lack of cleanliness tends to account for the conditions narrated by the physician as having been found by him and on which he expressed the opinion that the penetration took place two weeks before, assuming his testimony in that regard to be accurate. The jury, however, might have found that he was
The defendant testified that he carné in that night at two o’clock and took pillows, a sheet and a quilt and slept on the roof until five, when he aróse and went to his room and lay down again and fell asleep; that he was awakened by people running aqd halloing, and went to the door to see what was the matter just as “ they opened the door on me; ” that Jennie’s father said, “ What did you done to my girl i v to which hfe replied, “ I didn’t done nothing of the kind; ” .and then .he testified that the father said nothing to him, but the ' mother asked, “ What did you done to my child ?’’ and that he made answer, “ I didn’t done nothing,” but that he did not know what she meant and had to say something. He testified on his direct , examination that a week, or ten days before he was arrested He rsaw Jennie’s brother, twelve years old, having'intercourse with her twice, and admitted on cross-examination that he knew it was not right, but that he neither remonstrated with the children nor informed their parents; that he considered it none of his business and never spoke of- it even to his lawyer or anybody until upon the. witness stand, and then' says the reason lie did not tell it when charged by the parents and when before the Police Court was that he forgot it.
Three witnesses testified that defendant’s reputation-for “peace and quiet and orderliness ” was good.
The court, in instructing the jury, spoke of the blood found on the child as being fresh, and counsel for defendant excepted.. The court thereupon assured the jury that any expression Of opinion by the court upon the facts was inadvertent and should be disregarded ,and that they were the exclusive judges of the facts. No other exception to the charge was taken. - ,
If the jury believed the testimony of Jennie, the defendant committed the crime of which he lias, been found' guilty. It. is claimed that her testimony is utterly improbable, Stress is. laid on the fact that it was light or just getting light; that she says she made an outcry, and that there were many -others on the roof, none of whom were called as witnesses. The defendant says-, that he was sleeping only ten feet distant.' She says that he got under the cover over her. Such a change of position might not be noticed at that hour, even if there were others on the roof, for they would
The learned counsel for the appellant urges a reversal on account of the omission of the court to instruct the jury that they could not convict on the testimony of the complaining witness unless corroborated. The defendant was represented by counsel, and no suggestion was made that the jury might disbelieve the corroborating witnesses and at the same time believe the complaining witness, which is the only thing on which there was necessity for such instructions. The statute does not require the court to instruct the jury on this point; it merely declares, as a rule of law, that “no conviction can ' be had for * * * rape * * * upon the testimony of the female * * * unsupported by other evidence.” (Penal Code, § 283.) While it would be well for the court in all such cases to :£ully instruct the -jury on this point, yet failure to do so should not be considered reversible error when no request for such instruction is presented and it is not clear that such failure was prejudicial. It is scarcely conceivable that the jury would have convicted the defendant on the little gild’s testimony if they disbelieved the corroborating testimony of her parents. Any reasonable
- Such a crime committed on a child is unnatural and most revolting under any-circumstances. One hesitates'to believe that an industrious young man, while apparently sober, could be guilty of such a horrible crime. But when we recall the testimony of this defendant, that- he'-discovered improper relations between this little girl and her older brother a week or ten days before "and watched with morbid curiosity to see them repeat "it, and failed' to inform the parents, with'whom he was living and had'dived for nearly a year and was on terms of friendship ■—■ it is not so difficult to believe that he would himself endeavor to have intercourse with thé little girl. This is a base depending on the credibility of. witnesses.and where ■the truth was to be detected, more'from the appearances of the .witnesses and their manner of testifying than' from the words they tittered. It was,' therefore, peculiarly within the province of the jury, and their .verdict should not be disturbed,-
It follows that the conviction should be affirmed.
O’Brien, P. J., Patterson and Clarke, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
In view of - the testimony of the. physician called for the prosecution, together with the unsatisfactory character of the testimony of the principal witness-for the prosecution, and the fact that her testimony was uncorroborated, I do not think this judgment should be allowed to stand. - The jury were not instructed that the testimony of the child must'be corroborated before they were justified in con-. victing the defendant, and while there: seems to have been no request for such instruction, in view of the character of this evidence, .taken in connection with the failure of the court to instruct the jury as to the necessity of such corroboration, .justice requires that thére.should be a new trial.
I, therefore, dissent.
Judgment affirmed. Order filed.