163 Misc. 495 | N.Y. Sup. Ct. | 1937
This is a motion by defendant to dismiss an indictment charging him with the crime of assault, second degree. This court had previously granted to defendant for the purpose of this motion, an inspection of the minutes of the grand jury which found the indictment.
Facts presented upon this motion establish that defendant was arrested charged with rape, first degree, upon a female not his wife, over the statutory age. Upon a hearing before the City Court magistrate, defendant was discharged for lack of corroboration of the complainant’s testimony. The next day after defend
The question of whether the testimony of the complainant must be corroborated (Penal Law, § 2013) upon a trial for attempt to commit rape or for assault with intent to commit rape is not presented upon this motion. (People v. Phillips, 235 N. Y. 579, affg. 204 App. Div. 112; S. C. 202 id. 822; People v. Garner, 64 id. 410; affd., 169 N. Y. 585.)
Three days after the alleged offense, the complainant, Mary Machen, swore in an affidavit that the defendant raped her. The complainant, in her testimony before the grand jury, swore that the assault of the defendant upon her culminated in an act of sexual intercourse against her will.
Defendant claims that the lower crime of assault, second degree, is merged in the higher crime of rape and that the grand jury was not authorized to find the indictment in question. The language of section 2013 of the Penal Law is that “ no conviction can be had for rape or defilement upon the testimony of the female defiled, unsupported by other evidence.” There is no prohibition against the finding of an indictment for rape upon the testimony of the complainant alone. It is only upon the trial that the testimony of the complainant must be corroborated, otherwise there can be no conviction. Under ordinary circumstances, as a practical matter, it is idle for a grand jury to indict in the face of a certain dismissal of the indictment upon a trial. The result follows from this reasoning that the indictment for assault with intent to commit a felony, towit, rape, is based upon sufficient proof before the grand jury to establish in the grand jury the higher crime of rape.
There is no statutory or legal precedent decreeing that a grand jury cannot indict for a lesser offense even though the testimony before such grand jury may establish a higher crime, particularly if the indictment for the higher crime must fail upon a trial. On the contrary, there are distinct statutes which indicate a legislative intent that a trial may be had with a resultant conviction of the lower crime even though the testimony upon the trial established a higher offense.
Tracing the tortuous path of legislative endeavor to combat crime, we find section 26 of title 7 of chapter 1 of part 4 of the Revised Statutes (2 R. S. 702 [1829]) which became section 36 of title 7 of chapter 1 of part 4 of the Revised Statutes (1859 [5th ed.]): “ No person shall be convicted of an assault with intent to commit
By the adoption of the Penal Code in 1881 a new statute was enacted. “ A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself.” (Penal Code, § 685, now Penal Law § 260.)
Five years later the Legislature, realizing that an assault to commit a felony was in reality an attempt to commit a crime, repealed section 36 of title 7 of chapter 1 of part 4 of the Revised Statutes (1863) above quoted (Laws of 1886, chap. 593). Even though the crime of rape was consummated, the defendant upon the trial of this indictment may be tried and convicted of the crime charged which is in fact an attempt to commit rape. (Penal Law, § 260.) Or, to follow the language of another statute, if it appears by the testimony that the facts proved constitute the crime of rape which is of a higher nature than that charged in the indictment, the defendant may still be tried and convicted of the crime charged in the indictment. (Code Crim. Proc., § 400.) The court at this time cannot anticipate the discretionary judgment of the trial court which, under the authority of the two sections last quoted, may continue the trial of this indictment or suspend the same and act in accordance with the mandate of either of said sections.
Section 2 of the Penal Law defines an attempt to commit a crime as “an act, done with intent to commit a crime, and tending but failing to effect its commission, is ‘ an attempt to commit that crime.’ ” That definition cannot be reconciled with section 260 of the Penal Law above quoted for the crime of “ attempt to commit a crime ” exists only as defined in section 2 of the Penal Law when the act tends but fails to effect the commission of the crime.
So ordered.