50 N.Y.S. 984 | N.Y. App. Div. | 1898
1. The first question presented is whether evidence that the defendant and Sarah E. Work lived together in a flat at No. 230 West Thirty-sixth street, in this city, from about the 9th day of May to the 11th day of June, 1894, was properly admitted in support of the charge of criminal intercourse upon the thirteenth day of the preceding January. It is thus necessary to consider how far, in an indictment for such a specific offense, subsequent acts of a similar character between the same parties are admissible in'support of the principal charge. The question does not seem to have been directly passed upon in this State. In a number of other States, where adultery is made by statute a criminal offense, it • has been
Giving full effect to this evidential principle, it is quite clear that proof of such subsequent acts can only have, with relation to the principal charge, corroborative force in aid of the original proof of the primary offense. An act of adultery on one day does not, of .itself alone, furnish adequate evidence of a similar act on a preceding day, for all such relations must have a beginning. But in connection with direct or circumstantial evidence of the antecedent act subsequent acts of a similar character may, by reason of their close connection with or their natural relation to the antecedent act, have a certain probative value. Acts of illicit intercourse are not apt to be sporadic. They evidence an adulterous disposition in the parties involved which, upon opportunity, usually results in repetitions of the guilty act.
Applying the principle of these cases to the facts of. the case at bar, we think it clear that the evidence tending to show'cohabitation in-the Thirty-sixth street flat was inadmissible. The cohabitation inferable from this evidence took place four months after the act for which it was sought to convict the defendant. There was ho proof of intercourse or even of familiarity, in the interim. Almost immediately after the alleged occurrence in January, the girl went to live with her mother at a flat in Twenty-eighth street, and she remained there until the following May. The defendant was in the
Doubtless the extent to which such testimony' may be admitted must in a large measure' be determined by the trial judge in the exercise of a sound discretion. But there are bounds to his discretion. The evidence offered must at least have a legitimate tendency to show a lewd or adulterous disposition between the parties at or about the time when the offense is laid in the indictment. As was said in People v. Grauer (12 App. Div. 464, 474): “ The question must always be whether the links are broken,' or whether they form part of one continuous chain.” The subsequent act must, so to speak, cast its shadow backward. It must be a natural sequence • from the prior and primary act charged — an apparent effect from the anterior cause. How is it possible to give this effect to the evidence in question ? If such evidence be not too remote, it would be difficult to say when subsequent acts could ever be too remote. No limit could be applied to their admissibility or to the time when they would cease to be sequential and should be treated as original and primary. We are strengthened in this view by the fact that, in the Tha/yer and Niehols cases, which are the only ones in which the report gives definite information of the dates of the subsequent acts, the latter were closely related in point of time to that sought to be proved. In the Niehols case the subsequent acts were committed within a week, and in the Tha/yer case there was a continuance of the relations down to the time of trial.
2. This disposes of the principal points raised upon this appeal. There are other questions, however, which, as they may again arise upon a new trial, should be briefly considered.
Two indictments were found against the defendant, the first on the 10th day of September, 1894, and the second — that now under consideration — on the twenty-seventh of the same month. Shortly after the finding of the first indictment the defendant was arrested thereunder and he was thereupon admitted to bail. Upon then obtaining his release, and prior to the finding of the present indictment, he went out to Montana under an assumed name accompanied by Sarah’s sister, Anna Work, to see their father, Mr. Winfield Work. His object was to induce Mr.- Work to come to Hew York and to testify npon the trial of the first indictment (which was the only indictment of which he was then aware) that Sarah was born in 'April, 1878. It seems that Mr. Work had previously telegraphed to the defendant and others that Sarah was born in April, 1878, which was an error on his part, and the defendant hoped to induce Mr. Work to adhere to that statement upon the witness stand. It is not clear whether the defendant was, at the time, aware of Mr. Work’s error, but he knew that if proof were given upon the trial of that first indictment of the fact stated-in Mr. Work’s telegram he must escape, as such evidence would proye that -Sarah was over sixteen years of age on the 30th day of May, 1894, the daté when the offense referred to in that indictment was alleged to have been com
We should add that the letter written by the defendant to Anna Work, which was read at the interview between him and Mr. Work, was inadmissible, even if the'interview itself was competent. That letter had no bearing upon the subject' of the interview. It did not tend in any manner to show the.defendant’s purpose in seeking to secure Mr. Work’s testimony. Its admission cannot be sustained upon the theory that everything which happened at that interview was admissible if the fact of the interview itself was admissible. Such a doctrine would render any criminal act done, or declaration made, by the defendant, however foreign to the .subject of the indictment or the purpose of the interview, admissible against him. The rule is, that testimony should be confined to what is relevant to the .issue, or, at least, relevant to the immediate purpose of such an interview as that in question; in other words, to. what tends to show the defendant’s consciousness of guilt with regard to the offense charged, or his purpose to suppress or fabricate evidence material to the real issue.
The judgment of conviction should be reversed and a new trial ordered.
■ Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred,
Judgment reversed and new trial ordered.