17 Abb. Pr. 345 | N.Y. Sup. Ct. | 1864
Lead Opinion
This case comes before the general term on certiorari to the Court of Sessions, prosecuted by the district attorney under the provisions of the statute. (2 Rev. Stat., 736.)
On referring to the record in this court, attached to the return from the Court of Sessions, the indictment appears to have been found by the grand-jury, and the objection urged by the defendant’s counsel in that respect is not founded in fact.
Exceptions were taken at the trial to the admission of evidence respecting the acts and declarations of Mluer or Brown, when Monnais was not present. Mluer or Brown had been indicted jointly with Monnais, but a nolle prosequi had been entered as to him before the trial of Monnais.
There was sufficient evidence, before the case was submitted to the jury, to warrant the conclusion that the two were 'acting in combination when the offence was committed. The objection related only to the order of proof. The admission of the evidence objected to appears to have been fully warranted.
The counsel for the defendant requested the judge to charge the jury, in substance, that the prisoner could not be convicted unless they were satisfied that the prosecutrix had used the utmost reluctance in respect to the commission of the offence.
The “ utmost reluctance” would require resistance while life or the power to act remained. The request makes no allowance for threats or intimidation used by the prisoner, or for the fears by which the prosecutrix may have been overcome. The request should have been qualified, so as to include the circumstances under which'the alleged offence was committed.
The request, in the form it was put, was unauthorized.
The language of Judge Harris, in the case of The People a. Morrison (1 Park. Cr. R., 644), so much relied on by the defendant’s counsel, is very natural and appropriate in the connection where it occurs, and would not probably be generally misunderstood. It is not sufficiently precise, however, for a charge to a jury without some modification.
The judge, in the case before us, had previously instructed the jury, very properly, that the question for them was, whether the defendant forced the prosecutrix against her will.
Counsel for the defendant also requested the judge to charge the jury that “the prisoner cannot be held accountable for the conduct of the man jointly indicted with him, Brown or Mluer, independent of any complicity between that Brown and the de
There can be no good reason, that I can discover, for refusing to charge substantially as the counsel for the defendant here requested.
All the evidence tended to show that the two were acting in concert, and I am unable to see any evidence from which the jury could arrive at a contrary conclusion. It is not the duty of the judge, however, to assume that the acts of the two were in complicity. The fact was within the province of the jury, and I think it was error to withdraw it from them, as he in effect did by refusing to charge as requested. For this reason, I am in favor of setting aside the verdict and directing a new trial at the Sessions.
Clebke, J., concurred.
Dissenting Opinion
I dissent from the conclusion at which Judge Leonard has arrived. The last request to charge is so obscure, that I do not know what the prisoner’s counsel meant by it. I do not know what he meant by the words, “ independent of any complicity between that Brown and the defendant which was drawn into the case.”
New trial granted.
