300 N.Y. 120 | NY | 1949
Defendant, convicted of manslaughter in the first degree (Penal Law, § 1050) and abortion (Penal Law, § 80) argues in this court: first, that his guilt was not established beyond a reasonable doubt; second, that there was neither sufficient corroboration of the accomplice testimony nor a proper charge by the court on the subject; third, that it was error to allow the exhibition before the jury of mangled parts of a fetus and parts of the organs of the aborted woman; and, fourth, that it was error to receive into evidence proof of a prior extra-judicial "consistent statement" made by the accomplice-witness Schneidewind. We reject each of those contentions, but find it necessary to comment on the fourth point, only. *123
Schneidewind, at the trial, gave testimony most damaging to defendant. When cross-examined, he admitted that when he (Schneidewind) had first appeared before the grand jury as a witness, on November 12, 1947, four weeks after the abortion, he had made statements utterly at variance with his trial testimony, and not inculpating defendant at all. Previously, when giving his evidence in chief at the trial, he had told the jury that he, with defendant and another accomplice had, just after the abortion, gotten together and concocted the false story. Later, during Schneidewind's cross-examination, it was brought out that after his first (November 12, 1947) grand jury appearance, he was taken into custody and that he then went again before the grand jury on November 14, 1947, and that on that second occasion he recanted, and gave the grand jury the same version of the occurrence that he related in his direct testimony on this trial. During this cross-examination of Schneidewind, defense counsel brought out the fact that Schneidewind, although guilty on his own story, had not been indicted. By those and other questions, the defense at least suggested to the jury that Schneidewind hoped for clemency for himself, and that his trial testimony was a fabrication, as a reward for which he hoped to go unwhipped of justice.
The prosecutor then called as a rebuttal witness the father of the victim of the abortion. Over objection, the father was permitted to tell the jury that, on the day following the abortion (thirteen months before the trial), Schneidewind had told the father the same things that he told the jury on this trial, as to his (Schneidewind's) and defendant's complicity in the abortion.
Defendant argues to us that this rebuttal testimony of the father was an illegal buttressing of Schneidewind's sworn trial testimony by a showing of previous extrajudicial, unsworn statements of like import. The contention is that this rebuttal did not come within the exception to the hearsay rule, stated by this court in Ferris v. Sterling (
Of course, if the word "recent" in this court's formulation of the exception, in the cases above cited, means that the witness' statements at the trial must have been assailed as having been fabricated at some point just before the trial, this was no case for applying the exception. But we think that "recent" as so used, has a relative, not an absolute meaning. It means, we think, that the defense is charging the witness not with mistake or confusion, but with making up a false story well after the event (see Commonwealth v. Retkovitz,
The testimony of the girl's father, when received, illustrated the justice and soundness of the exception, since the father told the jury that Schneidewind, at the hospital, when the girl was near death, disclosed his own and defendant's guilt, in urging the father to dismiss defendant as his daughter's physician.
The judgment should be affirmed.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DYE, FULD and BROMLEY, JJ., concur.
Judgment affirmed.