160 N.Y.S. 352 | N.Y. Sup. Ct. | 1916
The defendant was convicted in the County Court of Oneida County of the crime of rape in the second degree, and was sentenced to state prison for not less_than 5 nor more than 10 years, being the maximum punishment authorized by statute.
Chapter 325 of the Laws of 1892 (Penal Law, § 2010) made the act of sexual intercourse by a person with a female not his wife under the age of 18 years, under circumstances not amounting to rape in the first degree, rape in the second degree. Before that time, such illicit sexual intercourse was not a crime, and was only actionable upon the basis of a fiction; i. e., loss of services to the master. The act was for the protection of womanhood and childhood from the libertine, and while a strict enforcement of its provisions and punishment therefor should receive and does receive the sanction of all well-thinking men and women, there is no provision of the Penal Code in which greater care should be taken by the trial court in protecting the rights of the accused, especially with reference to the proof of the age of the female who is alleged to have been debauched. People v. Marks, 146 App. Div. 11, 130 N. Y. Supp. 524.
This application is made pursuant to the terms of section 527 of the Code of Criminal Procedure, which contains the provision that when, in the opinion of the Supreme Court, there is reasonable doubt whether the judgment should stand, a certificate to that effect may be given which operates as a stay pending the determination of the appeal from the judgment of conviction.
The charge in the indictment is that, at the city of Rome, Oneida county, on January 17, 1916, the defendant had sexual intercourse with one Mary Carmella Passerella, at times called Laura Passerella, a female not his wife, who at that time, as was claimed by the people, was of the age of substantially 15 years and 6 months. The defense is a denial of the act of sexual intercourse, and that the female in question was at the date alleged in the indictment 3 years older than claimed by the people, or over the age of 18 years.
As bearing upon the credibility of the complaining witness, and also upon the question of whether the sentence imposed was excessive, a brief statement of the conceded facts in regard to the female, Mary Carmella, is instructive. The immoral conditions, disclosed by the record would seem to tax the assimilating powers of the much advertised melting-pot to the utmost, and with reference to the particular parties to this record it would seem that the furnace would be a more suitable instrumentality.
The girl was born in Italy, and has been in this country about 7
The act of sexual intercourse between the defendant and the girl, not only presented a question of fact for the jury, but was proven with a conclusiveness unusual in these cases, notwithstanding the denial of the defendant and the resort which he had to placing on the stand the witness Munzia Mezzetesta, a married woman in his employ, whose husband was apparently in court, and who testified as earnestly as she could to the fact that she was at the Adams House in Rome with the defendant, and also in a hotel in the city of Utica, having on a black plush coat, which had been described by one of the witnesses for the people as the style of garment worn by the girl, Mary Carmella, upon one of the occasions in question.
“Province of Reggio Calabria—District of Gerace. Municipality of Placanica. Office of the Civil State. Extract from the Registrar of Births of the Year 1900.
“The year 1900 the 23d day of July, at 10 a. m., in Municipality house. Before me, Vincenzo De Angelis, secretary of the municipality, delegated with act of September 1st of last year, duly approved officer of the civil state oí the municipality of Plaeanica, has appeared Passarelli Nicola, of the age of 31, tailor, domiciled in Plaeanica, who has declared to me that at 3 p. in. of the 22d day of the current month, in the house situated in Via Princlp I Napoli, from Panaia Filomena Uglinana, his wife, spinner, with Mm living, was born a child of female sex, which he presents to me and to whom he gives the names of Maria—Camela—-Aurelia.
“At the foregoing and at this act were present, as witnesses, Fante Angelo, of the age of 36, shoemaker, and Panaia Nicola, of the age of 42, property owner, both residents of this municipality.
“Having read the present act to all intervened is with me subscribed by the declarer only as the witnesses are illiterate. [Signed] Passarelli Nicola, V. De Angelis.
“For copy in conformity with the original released at the request of the illustrious Sir Anthony of the King of Gerace.
“Plaeanica the 25th day of March, 1916.
“The officer of the Civil State,
“N. Musco
“Municipality of Plaeanica,
“Reggio Calabria.
“[Seal for the Legalization of the Signature of the Sir Officer of the Civil State of Plaeanica]
“Gerace the 28th day of March, 1916.
“The President.
“The Chancellor of Civil and Penal Tribunal of Gerace.”
It seems to me that the document was inadmissible for the following reasons:
First. It does not appear intrinsically from the instrument itself or by extrinsic proof that there was any law in Italy authorizing a record of births or creating a bureau of vital statistics.
Second. It does not appear that the instrument in question or the original was a record in any bureau of vital statistics or board of health, or any office corresponding thereto, or was kept in conformity to the laws of the land where made. It appears in the translation, “Extract from the Registrar of Births for the Year 1900”; but this is simply a characterization put upon the copy.
Third. There is no authentication of the official character of the person before whom some one appeared and gave information relative to the birth of a child.
Fourth. The official character of the person signing the instrument offered in evidence is equally devoid of proof, and the official character of the instrument itself is not authenticated.
To reiterate, the certificate must be one authorized by law, must be properly authenticated, both as to its source and as to the persons who executed the instruments, and such authentication must be of a character to be recognized by the courts of this state, and it must be shown with some degree of certainty that it relates to the same person whose age is sought to be proven.
“We are of opinion, however, that the appearance of the complaining witness could not materially aid the jury in determining whether her true age on March 6th was 18 years and 1 second, which would have required an acquittal, or 17 years and 8 months, which required conviction.”
“The test of the propriety of granting a certificate of reasonable doubt in a criminal case is not that the judge to whom the application is made should be satisfied that the judgment of conviction will be reversed, but that questions of law are raised sufficient for the consideration of the appellate court.” People v. Hummel, 49 Misc. Rep. 136, 98 N. Y. Supp. 713; People v. Meadows, 62 Misc. Rep. 573, 115 N. Y. Supp. 656; People v. Martin, 91 Misc. Rep. 108, 154 N. Y. Supp. 324.
The certificate is granted, but upon the condition that the defendant be admitted to bail in the sum of $2,000.