151 N.Y.S. 980 | N.Y. App. Div. | 1915
The defendant is charged with the crime of rape in the second degree, through having had sexual intercourse with a female not his wife under eighteen years of age. The defendant, a widower, was living with his daughter, who during the times in question, was working nights for the telephone company. The complainant, one Myrtle Maloney, was a young girl fourteen years of' age, who went to work at the defendant’s house and lived there during June, July and August, 1914. By reason of the daughter’s absence at work the defendant and the complainant occupied the house alone during most of this time, and the complainant swears that in June, 1914, the defendant came to her room and had illicit relations with her, which afterwards resulted in her pregnancy. Upon trial there were sharply contested questions of fact, and we cannot say that the verdict of guilty was not justified by the evidence. There was some evidence, however, of affectionate relations existing between the complainant and a young man, and the defendant stoutly denied his guilt. The crime is a serious one, and the defendant is entitled to all the safeguards with which the law has encompassed him upon such a trial. One of those safeguards is found in section 2013 of the Penal Law, which provides that no conviction can be had for rape upon the testimony of the female defiled unsupported by other evidence. In charges of this nature the authorities have so strictly construed this law that the People are required to corroborate the story of the complainant as to every essential element of the crime. This safeguard of the law was clearly set out in the charge of the learned county judge, but the county judge
While for this error we think the judgment must he reversed, there is evidence in the case erroneously admitted ove'r the defendant’s objection and exception, which might well have been much more mischievous than this ruling of the court. Upon cross-examination the defendant was asked by the district attorney whether his first bondsmen had surrendered him. To this an objection was taken. The district attorney explained that the only object of showing it was to show what took place when they surrendered him. The court overruled the objection and an exception was taken. It appears elsewhere in the case that the defendant’s first bondsmen were his cousins. The fact that the defendant’s own cousins upon his bond choose to surrender him would be most cogent evidence, which would have well nigh controlling influence with the jury, and yet such evidence is wholly inadmissible. It is the opinion only of these bondsmen. Mischievous as this evidence was it is not justified by the explanation of the district attorney that he wanted to show what took place there. He might well have asked whether the declarations claimed to have been made by the defendant were not made in the presence of these men at this time, without asking that the purpose of their visit was to surrender him upon their bond. This fact should not have been injected into the case by the district attorney. When such evidence, fraught with so much significance, is sought to be introduced by the district attorney the justification must rest upon undoubted right, and defendant should not be subjected to the hazard of the inference which would naturally be drawn therefrom, unless the fact were necessarily shown by the district attorney as a foundation for other evidence which might properly be shown. In my judgment the defendant is entitled to another trial upon this indictment, and the judgment should be reversed and the case remitted to the County Court of Warren county for a new trial.
All concurred.
Judgment of conviction reversed and action remitted to the County Court of Warren county for retrial.