118 N.Y.S. 817 | N.Y. App. Div. | 1909
The indictment in this case is for rape in the second degree, assault in the second degree and abduction. The verdict of the jury convicted the defendant under the charge of rape in the second degree. The indictment charged the defendant with committing the act constituting this crime on the 6th day of February, 1905. The prosecuting attorney called the complainant, Loretta Cassella, who testified that on Sunday, the 26th day of February, 1905, the defendant called her into his room in his house, locked the door and the windows, laid her on the bed and committed the crime charged; that about two weeks later he again had intercourse with her. The complainant gave birth to a child on the 26th day of December. 1905,' and was, at the time of the trial, about fifteen years of age. She did not divulge the act complained of until about four months
The defendant in this case is an ignorant Italian; he scarcely speaks or understands the language, and because he has been unfortunate in his choice of counsel he ought not to be railroaded to prison without a fair and impartial trial of his case in accord with the law and practice of our courts. We have pointed out that even under the most favorable view of the prosecution’s case the evidence offered in corroboration could not even remotely tend to sustain the complainant’s testimony. The fact that the defendant may have committed rape upon her on the 22d day of-March, 1905, is not evidence that he committed the same crime on. the twelfth day of March, or on the twenty-sixth day of February, and unless we are to close our eyes to the fact that the period of gestation is but 280 days, the intercourse resulting in pregnancy could not have occurred on either of the days to which she testifies, and it is necessary that she be corroborated njion all of the material facts going to the making up of the crime. (People v. Page, supra, 275.)
The judgment appealed from should be reversed, and a new trial granted.
Rich, J., concurred; Hirschberg, P. J., and Miller, J., concurred in result; Burr, J., dissented.
Judgment of the County Court of Kings county reversed and new trial ordered.