6 N.Y.2d 259 | NY | 1959
Lead Opinion
Appellant has been convicted in the New York City Court of Special Sessions of causing the morals of a child under 16 years of age to become depraved in violation of subdivision 1 of section 483 of the Penal Law, and of assault in the third degree in violation of subdivision 1 of section- 244. Both of these misdemeanors are claimed to have been perpetrated on the daughter of appellant and his wife. Matrimonial differences had arisen which culminated in appellant’s removal from the home when his wife had him arrested following the alleged incident on which these criminal charges depend. The evidence against him consists of testimony by Nancy, their 10-year-old daughter, and an admission which his wife testified that he subsequently made to her on the telephone. We are satisfied that this conversation was erroneously admitted into evidence for reasons hereinafter stated.
The police were in the Oyóla home within four hours and Mrs. Oyóla was there within two hours of the earliest possible happening of this alleged sexual assault. The child testified to all the particulars of a completed act of intercourse upon her by her father, soon after she had retired for the night. She said that she had on her nightgown, and that he was clothed. In spite of the early arrival of both mother and the police, no evidence was offered by the People of any examination of the child’s body, nor the finding of any residual evidence of a
The question is whether this evidence against appellant was sufficient to prove him guilty beyond a reasonable doubt. In People v. Ledwon (153 N. Y. 10) it was held that the burden being upon the People of establishing the guilt of the accused beyond a reasonable doubt, a mere scintilla or even some proof is not enough to create an issue of fact. In the exercise of their judicial function, courts have often held that in certain situations as matter of law the evidence must be more than usually clear and convincing. The degree of proof required may be affected by whether the testimony is contradicted by other evidence, whether it is consistent, credible or contains elements of suspicion. Moreover all evidence is to be weighed according to the proof which it was in the power of the party to have produced, as Lord Mansfield observed (2 Wigmore, Evidence, § 285, p. 163). Upon the record in this case including the omission of any circumstantial evidence lending credibility to the testimony of this child, we have concluded that appellant has not been proved guilty beyond a reasonable doubt.
Attention is called to the provision in section 392 of the Code of Criminal Procedure that when in criminal proceedings a child under 12 years of age does not in the opinion of the court or magistrate understand the nature of an oath, the unsworn statement of the child may be received “ But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence.” Corroboration would have been required of every material fact essential to constitute the crime if Nancy Oyóla had not been sworn (People v. Meeks, 283 N. Y. 694; People v. Dutton, 305 N. Y. 632). In a series of decisions, however, where the infant complainant was sworn, this court has reversed convictions on charges of this nature and dismissed the indictments or informations as not proved beyond a reason
It is said that the acts charged against this appellant are usually performed in secret, out of the view of corroborating witnesses. That does not signify that some circumstantial evidence cannot be obtained lending veracity to the complainant’s narrative where the charge is true. Moreover, the same criticism would be applicable to the other sexual offenses to which reference has been made where specific statutes require corroborative evidence. Our liberties are based upon the idea that it is better for some of the guilty to go free than for any who are innocent to be convicted. In the extensive discussion of this subject by Professor Wigmore, to which the dissenting opinion in People v. Porcaro (6 N Y 2d 248, 253) refers, it is recognized that the general rule is to require corroboration of charges of all offenses against the chastity of women (Vol. Ill, p. 467; Vol. VII, p. 342 et seq.). His recommendation of changes in the law relate to the extension of existing rules to require in addition the psychiatric examination of complaining witnesses. It is noteworthy that a recommendation of such examinations was contained in the 1937-1938 Report of the American Bar Association’s Committee on the Improvement of the Law of Evidence (3 Wigmore, Evidence, p. 466), and that out of the fullness of his experience Professor Wigmore distrusted testimony by complainants in these cases advising the retention of whatever rules of corroboration exist under statute or case
The alleged admission against interest which appellant’s wife testified that he made to her consisted in a telephone call to her about two weeks after she had brought about his arrest, during which interval they had been separated. She testified that he said over the telephone “ that it was true what he done ” and that £ £ he was sorry for what he did to his daughter, and then I told him that I couldn’t forgive him for what he had done to her ” and “ that he violated his rights as a father, and then he told me about this other woman that he had. ’ ’ If this statement, which appellant denied having made, could amount to an admission of a sexual assault upon his daughter, which is not altogether clear, we consider that the objection to its introduction into evidence should have been sustained on the ground that it was a confidential communication between husband and wife induced by the marriage relation. It is true that they had been living separately for a short time after appellant’s arrest, but the circumstances indicate that (if spoken at all) this statement was part of an attempted reconciliation between husband and wife (People v. Daghita, 299 N. Y. 194,198-199; Warner v. Press Pub. Co., 132 N. Y. 181,185-186; Parkhurst v. Berdell, 110 N. Y. 386, 393). The presumption of confidentiality has not been rebutted as was held in Poppe v. Poppe (3 N Y 2d 312). The Appellate Division held that this conversation was erroneously admitted.
The conviction appealed from should be reversed upon the ground that appellant has not been proved guilty of the offenses charged beyond a reasonable doubt.
Dissenting Opinion
The Appellate Division, while finding that the reception of an admission was error, unanimously affirmed a judgment of conviction of the Court of Special
Defendant was found guilty of impairing the morals of his 10-year-old daughter. The facts and principles of law involved here are similar to those in People v. Porcaro (6 N Y 2d 248, decided herewith) wherein we treat the sufficiency and weight of the uncorroborated sworn testimony of children under 12 in criminal cases of this nature.
Here, in addition to the child’s sworn testimony, we believe that the testimony of the mother of the child and wife of the defendant regarding his alleged admission that ‘ ‘ he was sorry for what he did to his daughter ’ ’ was properly received by the Court of Special Sessions. Whether the testimony of the wife was credible was a question for the trier of the facts. This admission, however, was not privileged.
Whether or not this witness was competent to testify to this statement presented a mixed question of law and fact (cf. Poppe v. Poppe, 3 N Y 2d 312). Here, the majority of the Special Sessions Judges found as a fact that the “ presumption of confidentiality had been rebutted ’ ’ and that the admission was not prompted by any loyalty or trust engendered by the marital relationship.
Section 2445 of the Penal Law only prohibits the disclosure of confidential communications (People v. Daghita, 299 N. Y. 194; People v. McCormack, 278 App. Div. 191, aifd. 303 N. Y. 782). Not all inter-spouse communications are confidential but only those which would not otherwise have been communicated except that the party relies on the confidence and intimacy of the marital relationship (People v. Daghita, 299 N. Y. 194, supra).
Confidence and a marriage relationship are a sine qua non for without them there can be no privilege. A mere separation from bed and board may not destroy the relationship but there must be more than the simple fact that the parties are husband and wife.
In this respect the requirements of section 2445 of the Penal Law and section 349 of the Civil Practice Act are identical. Section 349 provides that “ A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage.” (Emphasis added.)
The injury to this child has been held to be an injury to the wife and the marital relation. Some courts believe that necessity dictates if not requires that no privilege attach under these circumstances (State v. Kollenborn, 304 S. W. 2d 855 [Mo. Sup. Ct.]; 8 Wigmore, Evidence, § 2239, p. 258). “ Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.” (Hawkins v. United States, 358 U. S. 74, 81 [concurring opinion].)
However, it is unnecessary now to go this far for we find that the circumstances surrounding the admission were sufficient in themselves, as Special Sessions found, to rebut any presumption of confidence or that the statement was elicited or uttered by reason of loyalty, affection or family devotion. The defendant admitted the crime at a time when he was separated from his wife and family. The defendant husband and his wife had quarreled over alleged extramarital relations indulged in by the defendant. His child had lodged serious accusations against him resulting in his arrest at the instance of his wife. WTiere the family relationship has been seriously impaired and the marital status has so deteriorated the reasons and basis for the privilege vanish (Hawkins v. United States, 358 U. S. 74, 77, supra; Poppe v. Poppe, 3 N Y 2d 312, supra). Defense
Moreover, in evaluating the character of the admission, we must examine the statement with due deference to the circumstances under which it was made, and in the light of the severed marital relationship. In this regard, the husband’s statement strikes us as an acknowledgment which could be made by any remorseful sex offender to any mother who had been wronged rather than a plea of a penitent husband confiding to his wife the story of his wrongdoing.
The judgment should be affirmed.
Dissenting Opinion
I agree with Judge Burke for affirmance.
Two questions of law are before us: first, whether the telephone conversation between husband and wife was admissible in evidence; and, second, if that conversation was not admissible, whether the other uncorroborated testimony of the infant complainant was a sufficient basis for conviction. As to the first of those questions, the two courts below differed. In my opinion, there was in this record and on these facts justification for the holding of Special Sessions that this particular husband-wife conversation did not constitute a confidential communication induced by the matrimonial relationship (see People v. McCormack, 278 App. Div. 191, affd. 303 N. Y. 782).
But in any case (now we reach the second question of law) the evidence here, with or without the telephoned admission by defendant, may not be held to be as matter of law insufficient for a conviction. There is not and never has been a rule of law in this State requiring corroboration of the sworn testimony of the infant complainants in these cases, and to my mind such a rule would be very much against the public interest. The Legislature which makes and announces public policy has by appropriate statutes demanded corroboration in other kinds of criminal cases and (not applicable here) of unsworn testimony of some infants (Penal Law, §§ 71, 103, 1091, 1455, 2013, 2460; Code Prim. Pro., § 392). But there is no statutory requirement of corroboration in prosecutions under section 483 of the Penal
The judgment should be affirmed.
Chief Judge Conway and Judge Fboessel concur with Judge Van Voobhis, and Judge Fuld concurs in his separate concurring opinion in People v. Porcaro (6 N Y 2d 248, 252), decided herewith; Judge Bubke dissents in an opinion in which Judge Dye concurs and in which Judge Desmond concurs in a separate opinion.
Judgments reversed and information dismissed.
