17 N.Y. Crim. 138 | N.Y. App. Div. | 1902
The indictment charged the defendant with having committed three crimes : (1) Eape in the second degree ; (2) assault with intent to rape; and (3) .abduction, under subdivision 1 of section 282 of the Penal Code.
At the trial, at the conclusion of the People’s case, upon motion of defendant’s counsel, the district attorney was required to elect upon which count in the indictment he would ask for a conviction. He did so and stated that he would go to the jury upon the third count, abduction. The trial proceeded and the defendant was found guilty of that crime, for which he was sentenced to imprisonment for a term of not less than four years nor more than four years and five months. He has appealed from the judgment of conviction and from an order denying a motion for a new trial and in arrest of judgment.
We are of the opinion that the judgment appealed from should be reversed, and having reached that conclusion it is unnecessary to state in detail the facts, many of which are revolting in their nature, further than to point out the errors committed, which require a new trial.
The third count in the indictment, under which the defendant
The defendant admitted that the girls were in his rooms on the evening of the twenty-sixth, but denied that any of them returned to or were in his rooms on the twenty-seventh. The character of the complainant and the companion who it is claimed returned with her to the defendant’s rooms on the morning of the twenty-seventh, as developed upon their cross-examination, was bad, and to such a degree that the same might properly be considered as bearing upon the credibility of the testimony given by them, and. especially so when considered in connection with the testimony of the defendant, whose character prior to the charge here made against him appeared to have been uniformly good.
The learned district attorney, appreciating that a conviction could not be had upon the uncorroborated testimony of the complainant (Penal Code, § 283), sought to establish such corroboration in several ways. First. He produced a physician who was permitted to testify, against defendant’s objection and exception, that twelve days after the offense was alleged to have been committed he examined the person of the complaining witness, and, as a result of that examination, was able to state that she had previously thereto had sexual intercourse, but he was unable to state when that had taken
Second. The complainant testified, and she was corroborated in some respects by her companion, Annie Blood, that after remaining in the defendant’s rooms several hours on the morning of the twenty-seventh of April, the defendant went with them to a dry goods store, and there purchased for them certain articles of wearing apparel. This the defendant denied, and to establish that their statements were true the learned district attorney called a saleswoman employed in the store where it was claimed the goods were bought. The saleswoman testified that upon a Sunday morning — what month or day of the month she could not positively state — two girls came to the store with a young man, who purchased a waist and a pair of stockings, and that she recognized Annie Blood as one of the girls. She did not identify the defendant as the man who came into the store with the two girls, or made the purchases; she did not describe the man who did come, and there was nothing in her testimony from which the jury could even infer that it was the defendant.
The defendant moved that the testimony of this witness be stricken out. The motion was denied and an exception taken. We think this motion should have been granted. The testimony of the saleswoman did not connect the defendant with the commission of the crime charged, nor did it tend to corroborate in any degree whatever the testimony of the complaining witness, or her companion, Annie Blood. The fact that they went to the store and
The judgment appealed from should be reversed and a new trial ordered.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment reversed, new trial ordered.