204 A.D. 112 | N.Y. App. Div. | 1922
On June 29, 1922, this court affirmed the judgment with the following memorandum: “ We are of opinion that the requirement of Penal Law, section 2013, that ‘ No conviction can be had for rape or defilement upon the testimony of the female defiled, unsupported by other evidence/ does not apply to a charge of attempt to commit rape, which is a separate and distinct crime. (People v. Kirwan, 22 N. Y. Supp. 160.) Judgment of conviction of the County Court of Orange county affirmed. Blackmar, P. J., Kelly, Jaycox, Kelby and Young, JJ., concur.” (People v. Phillips, 202 App. Div. 822.) On October sixth upon defendant’s application the court ordered a reargument of the appeal upon the questions: “ First, whether the requirements of Penal Law, section 2013, as to the evidence sufficient to convict in a case of rape, apply to a case of attempted rape; second, whether or not there is in this case sufficient supporting evidence.” (203 App. Div. 861.)
Upon reargument we reach the same conclusion, that the judgment of conviction must be affirmed. That the provisions of Penal Law, section 2013, “ No conviction can be had for
In the case at bar there was no request to charge as to the necessity of supporting evidence, nor was the matter presented in any way by exception or otherwise at the trial. The defense
I think the decision in the Kirwan case correctly states the law applicable to this trial for violation of the Penal Law. The offense of attempt to commit rape in the first degree is a crime separate and distinct from the crime of rape. While the Legislature might have provided that no conviction could be had for attempted rape upon the testimony of the female upon whom the attempt was made, they have not done so. Obviously the language of Penal Law, section 2013, in requiring supporting evidence to that of “ the female defiled ” has no reference to the crime of attempted rape, because in the latter case there is no “ female defiled.” The provision as to supporting evidence required for charges of rape was unknown to the common law. The Legislature in enacting Penal Code, section 283, and Penal Law, section 2013, is laying down a rule in derogation of the common law. But the crime of attempt to commit rape has always been classified as a crime distinct from rape itself, and the distinction between unsuccessful attempts to commit crime and the crime itself has been continued in the Penal Law. Counsel for defendant argues in effect that the requirements of Penal Law, section 2013, must be read into section 2010. The definition of “ Attempt to commit a crime ” (Penal Law, § 2) is “ An act, done with intent to commit a crime, and tending but failing to effect its commission, is ‘ an attempt to commit that crime.’ ” Therefore, to ascertain the charge against the defendant we look only to section 2 and section 2010 of the Penal Law. The Legislature has not provided for supporting evidence in the case of the attempt and whether such evidence should be required or not was a matter for the Legislature. I have not found any case in this State other than the Kirwan Case (supra) where this question is discussed, but the law as there stated appears to have been decided in other jurisdictions. “ Where the statute in terms applies to rape only, it does not require corroboration to convict of attempt or assault with intent to rape.” (33 Cyc. 1499, citing State v. Cook, 92 Iowa, 483; State v. Montgomery, 79 id. 737; State v. Grossheim, Id. 75; State v. Hatfield, 75 id. 592; People v. Kirwan, 22 N. Y. Supp. 160.) “ And see Fields v. State, 2 Ga. App. 41 * * *. In Iowa the rule is now extended by statute to prosecutions for assault with intent to commit rape. Iowa Code (1897), § 5488.” In State v. Hatfield (75 Iowa, 592) the Supreme Court of Iowa said: “ The defendant’s counsel requested the court to charge the jury as follows: ‘ Before you can find the defendant guilty in this case there must be evidence of
I think we should adhere to our original decision on this point.
I also reach the conclusion that in the case at bar there was evidence supporting the testimony of the woman upon whom the attempt was made. A woman companion of the female assaulted testified that the defendant caught hold of the complainant, struck her on the head and face and knocked her down, that as the witness ran for help she turned around and saw the complainant on the ground and defendant “ bending right over her.” And the witness testified that complainant screamed and told her to run for help. When the witness came back immediately the defendant had disappearéd. The design of the defendant in knocking the plaintiff down is clearly proven by his acts and language as testified to by the complainant. The woman companion was not interrogated as to these details by the district attorney or the trial counsel for defendant, and as already stated the matter of supporting evidence was not referred to by defendant’s counsel. The question of defendant’s guilt was submitted to the jury in a fair charge to which no exception was taken. I think the judgment should be affirmed.
Jaycox, Manning and Kelby, JJ., concur; Blackmar, P. J., concurs solely upon the ground first stated in the opinion.
Judgment of conviction by the County Court of Orange county affirmed on reargument.