People v. Sheppard , 9 N.Y. St. Rep. 35 ( 1887 )

Brady, J.

The defendant was indicted under section 282 of the Penal Code for that he did feloniously take, receive, harbor and use one Mamie Sherman, who was then and there a female under the age of sixteen years, to wit, of the age of fifteen years, for the purpose of sexual intercourse ; he, the said Frank Sheppard, not being then and there the husband of the said Mamie Sheppard; against the form of the statute in such case made and provided.

The section referred to declares that a person who takes, receives, harbors or uses a female under the age of 16 years for the purpose of sexual intercourse, not being her husband, is guilty of abduction. Tlie intercourse having been established by proper proof, or admitted, as it was in this case, the prosecution were bound to show beyond reasonable doubt and by proper evidence the age of the complaint.

The complaint who had formerly worn a long dress with her hair so arranged so as to rest upon the top or her head, was put upon the witness stand in short clothes with her hair braided in a childlike way for inspection by the jury as to hex-age under the provisions of law permitting that ceremony. Whether in the administration of the criminal law such a device was justifiable may perhaps be a matter of taste, but the principles of natural justice would seem to dictate the propriety of presenting the complainant in a garb similar to that in which she was seen by the defendant, and particularly as the central question of the case turned upon her age. In this case the propriety of the course suggested would seem to be the more impressive from the facts that she herself (as she admitted during her cross-examination) had proclaimed herself to be over 16 years of age, not only to the defendant, but to others; and that' she was also shown to have used long dresses with her hair arranged upon the top of her head, the effect of which was to make her look much older than she did in the garb in which she appeared before the jury.

We are not now dealing with the great value of the section under which the conviction was had for the preservation of the virtue of the young. We are simply considering the practical administration of criminal justice by a strict observance of its rules of evidence as we ought, in view of the grave consequences to the defendant resulting from a conviction. This seems to be peculiarly our duty, since it appears that the short dress of the complainant was furnished by the society for the prevention of cruelty to children (a society of great uséfulness) even though it was not intended by the circumstances mentioned to affect the jury in any possible respect. Perhaps in the view that is taken of the appeal it may not be at all important, but it may be that the intention of the society being thus called to the matter, there will be no cause for even suggestion on the subject in the future.

Upon the trial it appeared that the father of the complainant was living. Notwithstanding which, an entry in what was said to be the family Bible as to the time of the birth of the complainant was admitted in evidence, against the strenuous objection of the appellant’s counsel. We have not been referred to any authority which justified that proceeding. On the contrary, it appears that in one case cited on behalf of the people, viz.: the Berkeley Peerage case, 4 Camp. 431, the father of the infants whose ages were in question, was dead. And in Phillips on Evidence (4 Am. Ed., with Cowen and Hill’s notes) at p. 255, it is stated that although “ An entry in a family Bible, has been considered to derive credit from the circumstances .of its being entered in a book which is kept as the ordinary register of families, and as admissible, therefore, on account of its publicity in the family, without proof that such entry was made by a member of the family,” it is nevertheless said to be hearsay evidence admissible in matters of pedigree only.

The rule is distinctly stated in Greenleaf on Evidence, section 104, as follows :

“ An entry by a deceased parent or other relative made in a Bible, family missal, or any other book, or in any document or paper, stating the fact and date of the birth, marriage or death, of a child, or other relative, is regarded as a declaration of such parent in a matter of pedigree.

Although it is stated in the margin to have been held that the declarations of the deceased parent as to the place of birth of a child were inadmissible, this case involves no question of pedigree.

The admission of the family Bible was therefore error.

It may probably be claimed that it was properly received for the reason that the whereabouts (to use the language of the learned counsel for the people) of the father were not known, that he had deserted his family and it was impossible to bring it any closer to him.

It appears in the case that after his wife’s death, he left ¡New York to work on some road in Pennsylvania. But the record does not disclose any effort on the part of any person connected with the prosecution to discover the locus in quo of the father. Non constat but that he might have been in the city of ¡New York. This is not regarded as a sufficient reason for admitting the Bible in contravention of the established rule as shown in the citations made.

It is declared in section 527 of the Code of Criminal Procedure that an appellate court may order a new trial if satisfied that justice requires it whether any exception was taken or not in the court below.

We think that for the reasons given, injustice was done and that a new trial should be ordered.

Van Bbttnt P. J., and Daniels, J., concur.

Note.—The belief of defendant that the abducted female Was over sixteen years of age, is immaterial. People v. Stott, 3 N. Y. Crim., 306.