195 A.D. 910 | N.Y. App. Div. | 1921
Dissenting Opinion
The indictment charges the defendant with having had sexual intercourse on or about May 27, 1918, in the city of Elmira, N. Y., with Julia Haskins, she being at that time fourteen years of age. She testified that the alleged crime was committed by the defendant on the date mentioned. A few hours thereafter he left for the army and was in military service until July, 1919, when he returned to Elmira. In the meantime and on February 12, 1919, Julia Haskins gave birth to a child. The defendant denied his guilt and gave evidence tending to show that others might have been the author of her trouble. The defendant could not be convicted on the uncorroborated evidence of Julia Haskins. (Penal Law, § 2013.) Corroborating evidence was introduced but much of it was given by the girl’s mother whose credibility as a witness was of course open to attack. The difficulty with the ease arises on the charge of the court to the jury. In his principal charge the learned county judge, referring to the birth of the child, said: “ That is another circumstance that the prosecution claims that you should consider in arriving at the question of whether Julia’s testimony has been sufficiently corroborated.” At the conclusion of the charge the record discloses that the following occurred: “ By Mr. Knapp: I ask your Honor to charge the jury that the fact that the Haskins girl gave birth to a child is no evidence to corroborate her testimony, that the defendant was the guilty party. By the Court: Well, I charge you that is one of the circumstances of the case. You may consider it in arriving at the guilt or innocence of the defendant. By Mr. Knapp: I take an exception to your Honor’s refusal to charge the jury as requested, and l\slc you to charge my proposition as asked. By the Court: I refuse to so charge. By Mr. Knapp: Then I take an exception to your Honor’s refusal. By the Court: I charge you in connection with that, that fact standing alone is not sufficient to convict
Lead Opinion
All concur, except Cochrane, J., dissenting, with an opinion.