186 A.D. 224 | N.Y. App. Div. | 1919
When the case was closed and the jury went to their room, they had the testimony of the prosecutor, Rosalie Jansen, that on Saturday, January 27, 1917, she had sexual intercourse with the defendant. However satisfactory her testimony, the defendant could not be convicted if it was unsupported by other evidence. (Penal Law, § 2013.) The supporting evidence must have tended to prove each of the constituent facts of the crime, yet it needed not to be positive and direct, but was sufficient if it afforded proof of “ circumstances legitimately tending to show the existence of the material facts.” (People v. Plath, 100 N. Y. 594; People v. Adams, 72 App. Div. 166, 172; People v. De Nigris, 157 id. 798, and cases cited.) The discussion in Armstrong v. People (70 N. Y. 43 et seq.) is cogent and pertinent.
She was accustomed to go to his sleeping room, to which they would fetch fruit and the like. All of these circumstances are established by the testimony of the girl and the defendant. Many of his letters to her were read in evidence. They contain homilies of lofty character, chidings and criticisms. Some of them contain extravagant terms of affection almost mawkish, and some read like the effusions of a dotard lover. Reputable and apparently disinterested witnesses testify to the frequent association of the girl and the man in his office and in the streets, and one to kisses seen “ many a time,” which were not denied, but admitted. The prosecutor testifies that on Saturday, January 27, 1917, when she was in the office bedroom of the defendant, seated upon his bed, he pushed her over upon the bed and perpetrated the act. The undisputed proof outside of the testimony of the prosecutor justified a finding of opportunity in accord with her testimony. When the jury came to scrutinize her testimony they could find that it' was intelligent,' straightforward and consistent even under cross-examination. There was nothing in it that
It is true that there was no evidence that she had ever made complaint of the crime until some months thereafter, but it must be remembered that she did not testify to any resistance or violence. Force was not an element of this statutory rape, and the omission of complaint in a rape, the going about as if nothing had happened, was “ in effect an assertion that nothing violent had been done.” (Wigm. Ev. § 1135.) The omission of complaint was entirely consistent with the method of the crime — persuasion, not force — and with her testimony that she told no one of the act until after her child was born. She testifies that she did not know that she was pregnant — a fact not physically incredible. (Taylor Med. Jur. [7th Am. ed.] 495 et seq.; Witthaus & Becker Med. Jur. vol. 2, pp. 362, 363.) She testifies that when after three months her menses ceased, she went with her mother to a physician who informed her that such cessation was not unusual in one so young.
The jury could have inferred that one of her age did not realize the character of the act, or its possible consequences, but that she supposed that her secret was safe with her, and that she could obey the repeated injunctions of the defendant that she should conceal his conduct with her. And the jury also had before them her testimony that after the birth of her child she had at first declared that the defendant was not its father; that after she was taken to Monticello by the probation authorities she had repeated that statement; and that only after she had been at Monticello two days did she make the formal written accusation of the defendant. But the jury could consider that she had never named any other person, but had said that the father was a man unknown, and that it was not unnatural that she should attempt to shield the defendant in response to the repeated injunctions of one who was not a mere acquaintance or an advising friend, but her life-long benefactor who had constituted her the
I come now to consider the supporting evidence.
The material facts are defendant’s intercourse with the girl, not his wife, and then under the age of eighteen years. (Penal Law, § 2010.) Her sexual intercourse with some male on January 27, 1917, is supported by the testimony of the attendant physician as to the birth of her child on October 18, 1917, and by the period of gestation. (People v. Farina, 134 App. Div. 110, and cases cited; Rex v. Luffe, 8 East, 202; Chamberlayne Modern Law of Ev. § 770; Elliott Ev. § 68.) Her testimony that she was not the wife of the defendant and that at the time of the alleged crime she was under eighteen years of age is supported even by the testimony of the defendant himself. Her testimony that the defendant was the man is supported by the testimony of her father and mother as to an interview between them and the defendant.
But the defendant contends that this testimony last mentioned was not evidence, and for that reason I consider the point at some length. Rosalie had kept her pregnancy secret even from her parents. After her child was born, in October, 1917, she said that the defendant was not its father. When she was taken in November, 1917, to Monticello by the probation authorities, she at first repeated that statement, but after two days she made a formal statement in writing in accusation of the defendant. This accusation was made first on November 26,1917. The father and mother, who were of a walk in life lower than that of the defendant, but who had been on intimate terms with him for years, went to the defendant’s office on November 28, 1917. The mother’s version of the interview is: “ I said, ‘ Mr. Elston, Rosalie says you are the father of her child,’ and he says She says I am not the father of her child.’ And then Mr. Jansen said that she told him up to Monticello. He says ‘ You are the father of the child. What are you going to do about it? ’ And he said Let me marry the girl.’ Q. What, if anything, else was said? .A. And Mr. Jansen said ‘ No,’ and told me to come on. Q. And then you left after he had asked permission to marry her? A. Yes.” The father’s testimony is: “ She [¿. <?., his wife] say, ‘ Rosalie say you are the father of her baby, of her child,’ and he says
It is well settled that “ the acts and conduct of a party at or about the time when he is charged to have committed a crime, are always received as evidence of a guilty mind, and while in weighing such evidence ordinary caution is required, such inferences are to be drawn from them as experience indicates is warranted.” (Greenfield v. People, 85 N. Y. 75.) In People v. Conrow (200 N. Y. 356) the court say, per Chase, J.: “ Declarations or statements made in the presence of a party are not received as evidence in themselves but for the purpose of ascertaining the reply the party to he affected makes to them. They are only competent when the person affected hears and fully comprehends the effect of the words spoken, and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent. (People v. Kennedy, 164 N. Y. 456; People v. Smith, 172 N. Y. 210; People v. Cascone, 185 N. Y. 317.)” (See, too, Elliott Ev. § 2723; People v. Ferrara, 199 N. Y. 414; Donnelly v. State, 26 N. J. Law, 601, 613; Commonwealth v. Trefethen, 157 Mass. 180, 198.) The defendant at this interview did not remain silent or refuse to answer. He did not deny the accusation, but he responded to it, avowedly made upon the authority of Rosalie, by the denial of that authority — “ She [Rosalie] says I am not the father of her child ”— evidently referring to Rosalie’s original exculpation of him. But when the father informed him that Rosalie had accused him at Monticello, and of course at a later time than that of his exculpation, and but two days before the interview, with the inquiry as to what he would do about it, defendant said, “ Let me marry the girl,” and not only this, but added, “ then it will all be over.” He made no denial of the accusation at any time. • Was there not in the reply both to the accusation and to the inquiry as to what he was going to do about it, some evidence that might indicate
The learned and able counsel for the defendant relies upon People v. Page (162 N. Y. 274). In Page’s case the woman with whom the complainant had remained for a few days after the alleged rape testified that she (the witness) told the defendant that the complainant “ claimed he had committed the crime of rape upon her,” and defendant did not deny the story. The court states the question: “ A man is informed by a third person that a woman is circulating a story that he had committed rape upon her. He does not take the trouble to deny the story, and, according to the ruling in this case, his omission in that regard is evidence against him to prove that he is guilty of the crime charged.” The proposition of
When the jury came to consider the interview of November twenty-eighth, they had the testimony of the defendant that it had taken place, and that the parent’s version of their words was substantially correct. Thus they had before them words of direct accusation of the defendant, and an inquiry as to the defendant’s intentions, and they had the omission of the defendant to testify that he then denied any sexual relations with the girl, his. testimony that at least marriage was mentioned, and the circumstance that his version of the interview did not involve a direct denial of his fatherhood, although, of course, it was implied in his statement that if he was the father he would marry her, not followed by any promise that he would do so.
Defendant’s denial of the sexual intercourse was not supported save as he established his alibi.
As to the alibi, he testifies that he had to pay his taxes on Monday or Tuesday, January twenty-ninth or thirtieth, and that he told Mr. Edgar that he had to go to his farm to collect some more money in order to pay his taxes Monday or Tuesday; that he would leave his office open, and that he asked Mr. Edgar to look after it. Defendant testifies that he went to the farm to see if he could get something, as his tenant, Mrs. Leach, owed him $100 for hay and rental; that he went to Bloomingburg to his upper farm to collect money; that the train left at ten-forty-seven a. m., and he came home a little after four o’clock. He testifies that he went to see Mrs. Leach, and when asked whether he met “ anyone else ” he answers that he met Mr. Matthew Davidson at the station and had quite a conversation with him. Mrs. Leach was not called as a witness, although the defendant testified to her present whereabouts, nor was her absence accounted for. The same is true of Mr. Davidson so far as the omission to call him or to explain his absence. Neither the tax bills nor any check or receipt is produced, although the defendant
Under the plea of impotency the defendant testified that he was born in 1854, had been impotent since March, 1916; that his vital powers began to decline rapidly when he was fifty-seven years old, and continued in this course until an illness in June and July, 1915; that an illness that came in March, 1916, left him entirely impotent; that some one sent him circulars, whereupon he wrote to different houses and to a doctor (naming him) of Fort Wayne, Ind., recommended as a specialist on impotency, who gave him a treatment. He attempted to introduce a letter from that physician. Defendant testified that he had no vital power, no “ erection
If the defendant had been innocent of sexual relations with the girl, it would seem natural that after the birth of her child the defendant, who had bestowed upon her almost the attentions of a parent, who had been for years in supervision of her daily living, who had made her the beneficiary of his will, who had been the intimate friend and trusted adviser of her parents, would have shown sorrow over her plight, or, being also a lawyer, might have offered advice or have shown some interest or activity in hunting down the wrongdoer. So far as the record shows, he did nothing, he said nothing. Even his own testimony is bare of a statement made at any time, of sorrow or sympathy for the girl or her parents, much less of counsel or advice. It could be asked whether the mere mis-, fortune of this girl could have changed the ardent affection of this old man, if innocent of any improper relations with the girl, into apparent absolute indifference. Such constant aloofness can hardly be explained as that of an innocent man unjustly accused. If any one had suggested he was the father of the child, the evidence is that the girl herself had declared
I advise that the judgment of conviction of the County Court of Orange county be affirmed.
Mills, Rich, Putnam and Kelly, JJ., concurred.
Judgment of conviction of the County Court of Orange county affirmed.