142 N.Y.S. 884 | N.Y. App. Div. | 1913
The defendant was indicted for feloniously, willfully, maliciously and wrongfully making assault upon Hazel Vunck, a female not his wife, being under the age of eighteen years. It was further charged in the indictment that the defendant did wrongfully ravish and did then and there perpetrate an act of sexual intercourse with her against her will and without her consent and when her resistance was forcibly overcome.
The evidence is to the effect that upon April 30, 1912, the defendant and Hazel Vunck first met. They did not see each other again until May twelfth, when the defendant called upon Hazel Vunck at her home. He took dinner at the house and afterwards the complainant’s stepmother played the piano and the defendant sang. Thereafter the complainant and the defendant took a walk. The defendant proposed to the com
The learned trial judge in charging the jury read to them section 2010 of the Penal Law, and also stated the law that under the same section a person who perpetrates an act of sexual intercourse with a female not his wife under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree. At another part of his charge he stated: “ If the crime was committed on a person over eighteen years of age and that person did not resist, used no means of preventing it, made no outcry, then, sometimes, it would be a defense. In the crime of rape in the first degree there must be a degree of force used, but where the person upon whom the offense is committed has not reached the age of eighteen years, it is not any element of the crime, and it is not essential for the People to prove that any force was used, or any resistance made on the part of the person performing the offense alleged to have been committed.” The jury returned a verdict of guilty of rape in the first degree. From the charge read it might well have been inferred by the jury that while force was usually an element of the crime of rape in the first degree, nevertheless if the intercourse were committed with a woman under the age of eighteen years that force was not necessary to a conviction of rape in the first degree. No exception was taken to this charge. If the attention of the trial judge had been directed thereto he would undoubtedly have pointed out the distinction which was drawn in the first part of his charge between rape in the first degree and rape in the second degree. All of the requests to charge made by the appellant’s counsel were granted, and the only question here presented is whether the evidence is sufficient to convict the appellant of rape in the first degree.
As the appeal' is from a judgment of conviction of rape in the first degree it is unnecessary to consider whether the evidence would sustain a conviction of rape in the second degree by reason of the commission of the act of sexual intercourse with a woman under eighteen years of age. This judgment
Against the objection of the defendant the People were allowed to show the subsequent illicit relations between the defendant and complainant in Albany and in New York. It is difficult to see how this evidence is competent to prove the act of forcible rape upon May twelfth. If the evidence be competent, however, the natural inference would seem to be that the illicit relations between the parties began by consent rather than by force. There does not appear to have been at any time any resentment by the complainant against the defendant. The story that the defendant took the complainant by the arm in a public highway and led her forcibly without her consent into the woods is not very probable. If her resistance had been genuine she could have fallen to the ground and called for help; and the defendant could hardly have carried her into the woods from a public highway without detection. She made no call for help. She made no complaint of this outrage upon her until after the first of September, when their relations were broken up in New York city. It does not appear that he was in any way scratched from any struggle on her part to resist, or that her limbs were in any way bruised. Her arm was scratched with a hat pin, which might easily have been if she had voluntarily though carelessly taken off her hat. None of her clothing seems to have been torn. That her clothing was mussed and her hair disheveled is no more evidence of force than it is of voluntary cohabitation between the complainant and defendant. The fact of pregnancy seems to be no
All concurred, except Kellogg and Lyon, JJ., dissenting.
Judgment of conviction reversed and new trial granted in the County Court of Otsego county.