12 A.D. 464 | N.Y. App. Div. | 1896
Lead Opinion
This indictment contained counts for rape, 'first degree, rape, second degree, and abduction. At the close of the People’s evidence the district attorney elected to proceed alone under the third, count for rape, second degree. This count charged the defendant with the crime of having, on October 15, 1895, at the city of Dew York (under circumstances not amounting to rape in the first degree), perpetrated an act of sexual intercourse with one Johanna. Schmidt, she being a female under the age of eighteen years, to wit, of the age of fifteen years. (Penal Code, § 278, subd. 5.) The-girl was clearly but fifteen years of age at the time of the alleged act, and was not the wife of the defendant. The only remaining;
The questions in the case arise with reference to this element of the crime. First, it is said the girl's story was incredible in itself. It appeared that the defendant was the stepfather of the girl, having married her mother, a widow, about six years before, and that he was thirty-six years of age at the time of the criminal act alleged ; that the girl since she was two years of age had been subject, to epileptic fits ; that the defendant was a drinking man and did not work steadily, and that his wife, Johanna’s mother, did more or less work away from home to aid in the support of the family, consisting of three children by her former husband and three by the defendant ; that while her mother was away from home Johanna was left to care for the younger children, one of them being a baby; that the defendant was thus, at times, at home with Johanna and the younger children, when his wife was away.
Johanna testified that for two years prior to the criminal act alleged in the indictment, the defendant had assaulted her criminally from time to time in the absence of her mother; that she had struggled and cried out each time, but that it did no good ; that she threatened to tell her mother hut did not do so by reason of fear of the defendant; that on the first occasion the defendant hurt her; that her mother came to the house ón this occasion and found the door locked ; the defendant opened the door, and the mother inquired what was going on; he said nothing, and no information was given her by Johanna, because the defendant threatened her if she did give it. She testified to the circumstances connected with the criminal act alleged in 'the indictment as occurring October 15, 1895; that it occurred in the morning about eleven-thirty o’clock while her mother was out at work ; that the three younger children and her sister Katy, ten years old, were at home; that the defendant told Katy to take the children and get some candy, and gave them five cents; that Katy took the two elder children and went out, leaving the baby home ; that the defendant then locked the door and committed the act charged; that she cried out, but that it did no good ; that she never told any one what had previously happened during the two years, until the day of and after the act alleged in the indict
The other evidence in the case is of such a nature as to leave no doubt in our minds that the story of the girl as to the fact charged in the second degree count was substantially true. The evidence was of such a nature as to corroborate her story. The mother of the girl and wife of the defendant testified that about two years before the trial she found the door locked at one time; the defendant opened the door, seemed taken aback and frightened to see her; she asked where the girl was; he said in the bedroom; she found the girl there acting suspiciously, and when she asked her what she had been doing, the defendant made an inaccurate statement tending to divert the mother’s attention from the truth. She asked him if he had been doing anything to the child, and he said no, what did she take him for, he wouldn’t do such a thing — and she believed him. She further testified that the girl first told her about " the criminal act October 26, 1895, about eleven o’clock in the morning, and that she told the defendant about eight in the evening, and then made complaint to the police. She produced a letter written her hy the defendant, wherein he said: “ I have fooled with her, but have never harmed her. If a doctor examined her it would be found that she is not wronged.” She further testified on cross-examination that the girl told her seven or eight months before the
The police officer who arrested the defendant testified that when the charge was made in the police station he stood still, looked at the sergeant and said nothing. And an employee of the Society for the Prevention of Cruelty to Children testified that, when arraigned in the Harlem Police Court, and the charge was read to him, the defendant said : “ I may have fooled with her, but I never did her any harm.” The girl’s sister Katy testified that on an occasion, which was apparently October 15, 1895, in the morning, the defendant told her to take the two children and get them some candy, and gave her five cents; that she went with the children, bought the candy, was not long gone, and that when she came back she foimd the door locked; that the defendant came and opened it, and that when she went for the candy she left him and thé girl Johanna and the baby there.
The defendant disputed all the evidence given by these witnesses as to anything occurring when he was present. He conceded the writing of the letter, and said he meant by “fooling with” the girl, only having fun, not having intercourse with her, not putting his hands upon her improperly, but that he had wrestled with her and thrown her on the floor in the presence of her mother.
The court submitted the case to the jury in a very fair and impartial way, and the jury believed the story told by the girl. From a very careful reading of the evidence, we also are convinced, we have no reasonable doubt, but that the defendant committed the criminal act charged against him. The charge was a serious one, and the punishment inflicted was severe, though none too severe for the offense committed. The gravity of the matter has led us to very carefully examine the evidence so as to be satisfied that no injustice has been done in arriving at the conclusion of guilt under the- evidence in the case. We are satisfied the . evidence was such as to warrant a conviction and to fully support the verdict.
It is said that the evidence given in the case of the various criminal acts during the two years prior to the act charged in the indictment was incompetent and improper. The defendant when this evidence ¡was given was being tried for rape in the first degree, as well as in the second degree. The election to proceed for the second degree alone, was not made until the close of the evidence on the part of the People. There was no motion made after such election to strike out this evidence. This species of evidence, however, manifestly had a strong effect upon the jury, the evidence- of the girl on this subject having been more or less corroborated by the other evidence in the case; and if this evidence was improperly considered by the jury, and the conviction resulted in whole or in part therefrom, the conviction should not be permitted to stand, even though the .question was'not properly raised by objection and exception on the trial.
The evidence was apparently competent and proper when it was offered arid objected to, because the defendant was then being tried for rape in the first degree,. (People v. O’Sullivan, 104 N. Y. 481.) In that case the learned judge writing the opinion said: “Upon the
That was a case of rape in the first degree, but the doctrine is not confined to cases of rape in the first degree as at present constituted. It is clearly applicable to all cases where the issue of sexual intercourse is involved, whether the act was committed by force on the part of the male, or with the consent of both parties. Attempts to commit.acts of sexual intercourse by the male upon the same woman, acts voluntarily committed by both parties at times antecedent to the commission of the act sought to be established, are competent as circumstances tending to establish the act alleged, or in corroboration of witnesses testifying to such alleged act. .
In Wharton’s Criminal Evidence (§ 35) it is said: “ In prosecutions for adultery, Or for illicit intercourse of any class, evidence is admissible of sexual .acts between the same parties- prior to, or, when indicating continuousness of illicit relations, even subsequent to, the act specifically under trial. Prior sexual attempts on the same woman are admissible, under the same limitations, on a trial for rape.”
In Commonwealth v. Nichols (114 Mass. 285) the defendant was tried upon an indictment for adultery, and it was held that acts of adultery between the defendant and the same woman committed about the time of the adultery for which he was indicted, though committed in another place, were competent to be proved in support of the indictment. The sanie doctrine was held in State v. Williams (76 Maine, 480), and in State v. Withan (72 id. 531), in each of which the defendant was tried upon an indictment for adultery, and the court said in the latter case: “ Courts and text writers are rapidly falling in, with the view that acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, are admissible in evidence, as showing the relation and ■mutual disposition of the parties. * * * We think this doctrine is most in accordance with the logic of the law and with the authorities.”
In The State v. Markins et al. (95 Ind. 464) the defendants were Med upon an: indictment for incest, and it was held competent to prove prior acts of indecent familiarity- and sexual -intercourse between the parties for the purpose of corroborating the other evidence of incestuous intercourse, the court saying : “ Previous acts
Under our present statute, rape in the second degree involves not only the adulterous disposition of the defendant, but of the female as well — her actual though not legal consent to the sexual intercourse. .The disposition of both parties is, therefore, involved, as it is in an indictment for adultery and incest, and the evidence is clearly admissible upon the theory of showing the adulterous disposition of both parties before and at the time of the act of sexual intercourse charged in the indictment, as a circumstance tending to establish the commission of the act alleged, and in corroboration of the other evidence in the case upon that issue. Upon both reason and authority this evidence, as to previous sexual intercourse, was properly received and retained in this case and submitted to and considered by the jury.
It is also said that the court improperly admitted and retained in the case, upon motion to strike out, evidence given by the People as to the complaint of the girl to her mother, in the absence of the defendant, of criminal acts between her and the defendant. The
It will be observed that the mother did not give any evidence as to what the story told by her daughter was, nor did she state what act or acts, if any, she made complaint about; and only by inference could it be said that the complaint related to criminal acts at all. She merely stated that the girl made' complaint to her about what the defendant had done to her. It not only appeared in the case that the girl claimed that the defendant had committed criminal acts with her during a period of two years, but the mother testified, on her cross-examination by the defendant’s counsel, that the girl had told her, seven or eight months before the trial, that the defendant had held her in a dark cellar where he worked, and had
We do not see that the error as to this evidence, if a technical error at ail was committed, could in any way have affected the substantial rights of the defendant. The defendant was clearly proven guilty of the offense of which he was convicted. He had a fair and
The judgment appealed from should be affirmed.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Barrett, J., concurred, with the suggestions contained in his opinion.
Concurrence Opinion
While fully concurring in the opinion of Mr. Justice Williams, I desire to add some considerations upon one branch of the case, namely, the original admission and subsequent retention of complainant’s testimony as to the defendant’s previous acts of criminality. In the O’Sullivan case the court held that the complainant could corroborate herself as to the main facts, by her own testimony as to preceding facts, either showing intent or guilty consummation. The reasoning was, that as witnesses other than the complainant could have testified to such preceding facts tending to corroborate her, so might she. We must not question the rule thus laid down. A distinction is, however, suggested between that case and the present, in the intimation there that the jirevious acts must not be too far distant. But whether they are too far distant depends upon the continuity of the chain of evidence.. The question must always be whether the links are broken, or whether they form part of one continuous chain. Here the testimony as to past acts went to show an unvarying purpose throughout upon the defendant’s part, and its competency under the general rule laid down in the O’Sullivan, case never failed at any point. The same rule applies upon indictments for the lesser- offense — that is, where force is not used. The cases cited by Mr. Justice Williams amply support his conclusion that the testimony was competent under the second degree count. In some of the cases previous acts of loose conduct were admitted, not only to support circumstantial evidence of guilt (as to which the logic of the rule is clear), but to corroborate the direct testimony of one of the guilty parties. If admissible at all for the latter purpose, then, under the O’Sullivan case, even the complainant is a competent witness thus to corroborate herself.
But, even if the testimony Were inadmissible, the defendant was not prejudiced by its retention after the district attorney elected to proceed solely upon the second degree count. Indeed, it may fairly
I have nothing to add to the other questions discussed by Mr. Justice Williams, and I unreservedly concur in his opinion that the judgment should be affirmed.
Judgment affirmed.