26 N.Y.S. 674 | N.Y. Sup. Ct. | 1893
Lead Opinion
The main questions in this case upon which the defendant relies for a reversal of the judgment of conviction are: First, the reception of the evidence of the complainant that she disclosed the facts of the assault to her father and mother, for the
“There may be circumstances which excuse delay, as when the prosecutrix is under the physical control of the defendant; when she is among strangers, • and there is no one in whom she can confide; when she is induced to silence by threats, and is so far within the power or reach of the defendant that the threats may be executed. In such and other like cases delay may be excused, and the disclosure may be proved, and all the facts submitted to the jury for them to determine what weight shall be given to the disclosure, and what effect the delay shall have.”
In this case the prosecutrix was a girl 16 years of age. She was away from her home, some 11 miles distant, with her grandfather, an old gentleman of the age of about 70 years. The defendant induced her, with the consent of her grandfather, to accompany him to his house, some three miles distant, to sit up with his mother-in-law, who was sick; and, in taking her to his house, it is claimed the assault was committed. He threatened to kill her if she disclosed the fact to any one. That night she spent at his house with his family. The next day she returned to her grandfather’s; the only persons there at the time being her grandfather and a cousin of his, who appears to have been an old lady. Her grandmother, also an old lady, in feeble health, was absent from home -at the time, but returned prior to the prosecutrix leaving for her •own home. The prosecutrix did not tell her story of the assault to any one until she reached her home, seven days after this alleged occurrence, and then, before she had removed her outer garments, she told what had happened to her. There may be some •question as to whether the objections and exceptions are sufficient to raise the point under discussion. The fact that she told her mother was testified to by the prosecutrix, without objections or •exceptions by the defendant. The fact that she disclosed it to her father and mother was testified to by both of them, without objection. The question in that respect that was objected to was after the testimony was given that she had made the disclosure to them, and was as follows:
“Q. Did not she say who committed it? I do not ask who it was. (Question •objected to as irrelevant, immaterial, and hearsay. Objection overruled, and the defendant excepted.) A. She did.”
But for the purposes of this case it will be assumed that such objection is sufficient to raise the point. It seems to me that the prosecutrix, under all the circumstances appearing in the case,—
As to the second ground relied upon for a reversal, the question is to what extent it was necessary to corroborate the testimony of the prosecutrix. Section 283 of the Penal Code says:
“That no conviction can be had for abduction, compulsory marriage, rape- or defilement, upon the testimony of the female abducted, compelled or defiled, unsupported by other evidence.”
It does not seem to me that under that section of the Code it is necessary that the prosecutrix should be corroborated upon all the material points of her testimony. I have been referred to no-case giving a construction to the section in question, except the case of People v. Plath, 100 N. Y. 590, 3 N. E. 790, and the rule-in that case has been very much modified in later decisions. People v. Kearney, 110 N. Y. 188-194, 17 N. E. 736; People v. Elliott, 106 N. Y. 288, 12 N. E. 602; People v. Ogle, 104 N. Y. 511-515, 11 N. E. 53; People v. Everhardt, 104 N. Y. 591, 11 N. E. 62; People v.. Cullen, (Sup.) 5 N. Y. Supp. 886. It will be noticed that the section in question is indefinite as to the character and extent of the supporting evidence required. Without discussing at length the decision of People v. Plath, it seems to me that the essential principle established by that case is contained on page 597, 100 N. Y., and page 792, 3 N. E., that:
“In one form or the other, however, proof must be given, aside from that of the female, tending to establish the commission of a crime, and that it was perpetrated by the person accused, before a conviction can be lawfully-had.”
And within the spirit of that language it seems to me that a. safe construction of the section would be to hold that the support or corroboration required by.it should be the same that is held1 to be necessary for the corroboration of an accomplice under section 399 of the Code of Criminal Procedure. That section reads as follows:
“A conviction cannot be had upon the testimony of an accomplice, unless-, he be corroborated by such other evidence as tends to connect the defendant. with the commission of the crime.”
“Prior to this statute, the rule in the state permitted the jury to-convict a defendant upon the uncorroborated testimony of an accomplice, (People v. Costello, 1 Denio, 83;) but it was the uniform custom of judges to advise the jury that the evidence of the ac
The prosecutrix is corroborated, as to a rape having been committed upon her, by the fact that she was in such a situation with the defendant that he had an opportunity to commit the crime. Another witness, her grandfather, testified that she went away with the defendant in his carriage. She locates the place of the assault in a piece of woods off the public highway. The next day the tracks of a wagon are found through such woods, entering from the side coming from her grandfather’s house, and leaving it, and entering on the highway again, on the side going towards the defendant’s house. The defendant is seen with a female in his carriage between the woods and his house, about one-half mile from his house. The prosecutrix comes to his house in the evening in his company. When she arrived there, the defendant’s sister-in-law says her “hair was ruffled up, and she took down her front hair and rolled it up, and she took off her shoes and shook the dirt out of them. She looked very downhearted, and didn’t have anything at all to say, and she kept wiping her eyes occasionally, and I thought she was crying.” She testified that, when the assault was committed upon her, one of the buttons upon her drawers
There are inferences, however, to be drawn from evidence, that bears upon the question of consent. If she had consented, she probably would not have been looking downhearted, wiping her eyes, and presenting the" appearance of crying, after she had arrived at the defendant’s house. Neither would she, in all human probability, have told her mother she had been assaulted, if she had consented to it. Such a statement is conceivable, if the fact had been discovered, and she was trying to justify her conduct to her parents; and it is for the reason that it is presumed that a female will not falsely testify to her own disgrace that her statements made recently after the alleged commission of the offense are received in evidence, and are held to be corroborative. In addition, it may be said that to require corroboration as to whether a female consents or not would be exacting something that in most cases would be impossible of fulfillment. It is a crime that is not committed in the presence or hearing of people, so that they can neither see nor hear the struggle of the victim. Her condition afterwards, it is true, may show the effects of her struggle, but she may resist, and still not be able to show bruises or wounds in corroboration. She need not be corroborated on every material fact, “nor need the corroborating evidence be wholly inconsistent with the theory of the defendant’s innocence.” People v. Elliott, 106 N. Y. 288-292, 12 N. E. 602. It seems to me that the facts above recited, all of which are testified to by witnesses other than the prosecutrix, constitute sufficient corroboration to warrant a submission of the case to the jury. Opportunity for the commission of the crime is a material fact. That is found. The recent laceration or rupture of the hymen is a material fact, and there is testimony as to that. And these alone, it seems to me, are sufficient to bring the case within the Code.
On the second, as to whether there was any corroborating evidence tending to show that the defendant was the person who committed the assault, we have these facts: That the defendant asked her grandfather to permit her to go with him to his house on the night in question; that they left the house together; that the defendant was seen that evening about a mile from the woods
PUTNAM, J., concurs.
Dissenting Opinion
(dissenting.) An appeal from an order denying a motion for a new trial on newly-discovered evidence having been dismissed, and the order affirmed, we are brought to the consideration of the appeal from the judgment of conviction in this case. The appellant insists that the evidence fails to establish the commission of the offense charged, because the circumstances attending the transaction as sworn to by the prosecutrix establish her consent, and that there is no corroboration of a forcible ravishing against her will, as sworn to by her. Section 283 of the Penal Code prescribes, -in definite and concise language, the rule of law upon that subject, as follows:
“No conviction can be had, for abduction, compulsory marriage, rape, or defilement, upon the testimony of the female abducted, compelled or defiled, unsupported by other evidence.”
The question raised upon the first point is as to the sufficiency of the evidence in corroboration of the offense charged, in support of the testimony of the prosecutrix. The principal evidence of the
We have said that the facts sworn to by the prosecutrix as to the actual commission of this crime, if corroborated by evidence, either direct or circumstantial, so as to establish their truth, are sufficient to convict. But are not all of the circumstances relied upon by the prosecution as corroborations consistent with the innocence of the defendant of the crime of rape? Assuming that the tracks of the wagon leading into the wood road, and returning, corroborate the fact that he drove into the woods, that fact in itself is just as consistent with the idea of illicit intercourse with the consent of the prosecutrix as with the motive and design on the part of the defendant to commit a felony by forcibly ravishing the prosecutrix, and more so when we take into account the fact that he was in hear proximity to a traveled public highway, and was within easy hearing distance of the same. By her own testimony she consented, by her failing to object, to his driving into this wood road, although she swears she knew he was driving into the thicket in a byroad and secluded place, and on her arrival at the point where she alleges this offense was committed she voluntarily, on his invitation, got out of the carriage. The people claim that the finding of the button supposed to have been torn or ripped off from her drawers is evidence in corroboration of the statement that she was out of the carriage, and on the ground; but that circumstance would seem slight evidence of force, and in no way. inconsistent with the mutual effort to remove the obstruction which that garment furnished to a voluntary connection. The cloth does not appear to have been torn in removing the button. The button-hole was not torn out, but there was a tear in the drawers a short finger’s length. Prosecutrix, after the alleged occurrence, as she swears, replaced the drawers on her person, placing a pin in the place of the button, and wore them to defendant’s that night, and for some days thereafter, in the same condition; and it is to be observed that the identity of and injuries to these drawers rest solely in the uncorroborated evidence of the prosecutrix. I do not see how, under such circumstances, the condition of that garment is a corroboration of the criminal charge against the defendant. If they had been exhibited to some other person, and their condition examined before they were removed from the prosecutrix, any rents or marks of violence or force on them might furnish some evidence in corroboration; but I find no evidence that any person saw them until they were presented in court. Again, her appearance at the defendant’s that night, as described by Mrs. Upright, is urged as a corroboration. “Her hair was ruffled, and she took down her front hair and rolled it up. She took off her shoes and shook the dirt out.” But it will be observed that the prosecutrix does not, in her testimony, make any claim that the disordered condition of her hair, or the dirt in her shoes, was the result of the alleged assault of the defendant or of their encounter in the woods, so that this testimony fur
It is also claimed by the learned district attorney that the statement of the prosecutrix to her father and mother, of this offense,, several days after the alleged occurrence, is a corroboration. If this evidence was competent, which we doubt, still, after such a lapse of time after the happening of the alleged event, we think it falls far short of a corroboration of the prosecutrix’s testimony as-to the commission of this crime. The theory upon which the declaration of the injured party is received as evidence is that they were made so nearly contemporaneous with the injury that the person making them is deemed to be smarting under the immediate-consequences of the wrong, and has not had time to manufacture a story, but acts solely upon impressions and impulses born of the injury. It can hardly be successfully maintained that declarations of the party charging the injury, seven days after it occurred, and not made in extremis, can be treated as evidence in corroboration-of the evidence of the prosecutrix of the principal offense.
The only remaining evidence to be considered upon this point is that of the doctor. ■ He made an examination of the complainant the 9th, or 10th, or 16th of October, after the alleged occurrence.. He formed an opinion from that examination, and an examination, made by him on the 20th of October, that the hymen had been, ruptured recently, and, while he cannot state the exact time, he-puts it positively within two months. Does this evidence amount to a corroboration that she was forcibly ravished on the 2d of October, 1892? We think not. The same conditions wouldi have been present if she had submitted to voluntary intercourse^. There was no inflammation of the parts, and no evidence of excessive violence, disclosed by his examination. On the whole evidence on the part of the prosecution we And nothing that corroborates the testimony of the prosecutrix that she was forcibly ravished at the time alleged. Such evidence was indispensable, as-we have seen from the provisions of the Code, to a conviction of the-defendant in this case. Upon this point we have not considered the evidence offered by the defense in opposition to this charge,, for the reason that, if a prima facie case had been made out by the prosecution, the conflict raised by the evidence of the defense would have presented a question of fact which would be solely for the-jury, with whose verdict, on such conflict, this court would not interfere on appeal. In People v. Plath, 100 N. Y. 592, 3 N. E. 790,. the court of appeals laid down the rule which must govern in the-construction of section 283 of the Penal Code. In that case, Huger,. C. J., says:
*683 “In cases where corroboration is required, there has been some diversity of opinion in the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed, in order to comply with the rule; but it is now conceded to be the general rule that it should tend to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it.”
Tested by this rule, we fail to see that the prosecutrix is corroborated by any evidence tending to prove that she was forcibly ravished by the defendant. Without that evidence, standing upon her testimony alone, however positive the same may be, the law does not allow a conviction of either of the grave and heinous offenses mentioned in section 283 of the Penal Code. If we are right in our conclusion, this conviction, for the reason above stated, must be reversed, and no examination of the other exceptions taken by the appellant need be considered. The conviction must be - reversed, and a new trial ordered before the Ulster county sessions, under the provisions of section 527 of the Code of Criminal Procedure.