People v. Bowles

3 N.Y. Crim. 447 | N.Y. Sup. Ct. | 1884

Barstard. P. J.

It is proper evidence in support of an indictment for rape that the injured party made complaint immediately after the occurrence. It is not admitted as evidence of the criminal act, but in support of direct evidence of such an act. Baccio v. People, 41 N. Y. 265. The order of proof is within the discretion of the court, and the admission of the complaint made by the prosecutrix to Mrs. Weber, soon after the occurrence, was proper, in view of the subsequent proof of the offense by direct evidence. The prosecutrix could state why she did not 'tell other persons. If the fact of immediate complaint is simply in aid of the proof of facts, any fact which fends to weaken the effect of the absence of it, may go to the jury.

So, also it was proper for the prosecutrix to testify that she did not consent, and that she resisted all she could. These declarations of results were in aid of facts, which very clearly showed that she told the truth, aud the jury have so found. It was not a matter of law whether the resistance was all which the law requires in such cases, but one of fact for the jury. Higgins v. People, 58 N. Y. 379. If the facts were before us, we could entertain no doubt, but that the case was an exceedingly aggravated one of rape under the law. The rape was done by two men of whom one was the prisoner. They were together, and what was said and done by one, was part of the transaction even if he be not the particular offender upon trial.

The conviction should be affirmed.

Pbatt and Dykhan, JJ., concur.