91 N.Y.S. 1027 | N.Y. App. Div. | 1905
The defendant was convicted in the Court of General Sessions of the Peace in and for the county of Hew York of the crime of abduction, under that provision of subdivision 1 of section 282 of the'Penal Code which provides that a person is guilty of the crime, who, without the consent of the father, mother, guardian or other person having legal charge of a female under the age of eighteen
Upon the trial of the indictment the only issue was one of fact, as to whether the marriage had taken place without the consent of the mother. The whole record discloses that that was the only matter in contest. It was testified to by the mother on behalf of the prosecution that her consent never was applied for, and the testimony of the alleged abducted girl was of circumstances which plainly indicated that the mother’s consent never had been asked. On the other hand, the defendant claimed and swore that the consent had been applied for and was granted. There was no issue really raised as to the taking of the girl for the purpose of marriage. The marriage was conceded. It was made by contract in writing and was followed by cohabitation. Ho reasonable ai’gument can be made on this record respecting the sufficiency of the proof of the taking of the girl for the purpose of marriage. Upon the single issue involved the evidence was in such a situation as to require its submission to the jury.
On the cross-examination of the defendant he was asked if he had not a wife living at the time of his marriage with the alleged abducted girl. That question was objected to, but the witness was compelled to answer, which under exception he, did in the negative. He was then asked whether two persons named were not present in 1895 when he, the witness, was married in Italy to one Serafina, to which he answered that he never was married in 189.5, nor was he ever, married before. Thereupon the court took an adjournment until the next day, when the prosecution was allowed to prove by two witnesses that they were present at a ceremonial marriage had in Italy between the defendant and the woman Serafina. ■ That evidence was objected to and it was insisted that it was
The judgment, therefore, must be reversed and a new trial ordered.
Yan Brunt, P. J., O’Brien, Hatch and Laughlin, JJ., concurred.
Judgment reversed and new trial ordered.