People v. Terwilliger , 9 N.Y. Crim. 73 ( 1893 )

HERRICK, J.

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 ■first time, a week after it took place; second, that her testimony as to such assault was not sufficient to warrant a conviction under section 283 of the Penal Code. The case of rape is an exception to the rule that the evidence of a witness cannot he corroborated or ■confirméd by proof that such witness stated the facts testified to •on the trial, on some previous occasion, when not under oath. People v. O’Sullivan, 104 N. Y. 481, 10 N. E. 880. And while in that case the court held that the evidence was inadmissible because the •disclosure was not promptly made, and that the reason upon which the rule is based for the reception of such evidence requires that the disclosure should be recent, and made at the first suitable opportunity, yet the court goes on to say:

“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,— her youth; the fact that she was a considerable distance from her home, with old people, to whom it would not be natural for her to confide what had befallen her; the fact that she was within a comparatively short distance of the defendant, who had threatened to Mil her if she disclosed what had occurred; that she expected shortly to return to her parents, her natural guardians and confidants; that immediately upon her return home, before she had removed her “wrap,” she told her mother what had occurred,—this,, it seems to me, brings it within the line of exceptions to immediate disclosure spoken of in the case of People v. O’Sullivan, supra. It was proper that it should be submitted to the jury, leaving them to determine what weight should be attached to it under all the-circumstances, and was therefore properly admitted.

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 accomplice should be received with great caution, and it rarely happened that a conviction was had upon his unsupported evidence. The rule now embodied in the statute is substantially the rule which,, before the statute, courts were in the habit of stating to the jury for their guidance, although, as has been said, it was not enforced osa rule- of law. It is plain that, independently of the statutory rule, corroborative evidence, to have any value, must be evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it, and such is the doctrine of the best-considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice. Such a rule would render the testimony of an accomplice in most cases unnecessary, and would defeat the policy of the law which permits the use of accomplices as witnesses in aid of, and in the interest of, public justice.” People v. Hooghkerk, 96 N. Y. 149-162. It has also been held that “the law is complied with w'hen there is some evidence fairly tending to connect the defendant with the commission of the crime charged, so that the conviction will not rest entirely upon the evidence of an accomplice.” People v. Elliott, 106 N. Y. 288-292, 12 N. E. 602; People v. Everhardt, 104 N. Y. 591, 11 N. E. 62; People v. O’Sullivan, 104 N. Y. 481, 10 N. E. 880. Under these circumstances, I think a fair and prudent construction of section 283 of the Penal Code, therefore, to be that there should be supporting or corroborating evidence fairly tending to prove—First, that a rape had been actually committed; and, second, evidence tending to prove that the defendant is the person who committed it; and, assuming such to be the true construction to be placed upon the section referred to, it seems to me that in this case there was sufficient corroborative or supporting evidence to submit the case to the jury.

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 was torn off. About eight days after the alleged commission of the offense, the woods were searched, and, in the locality where-she located the assault, a button was found. When she arrived; at her father’s house, a week after the transaction, she immediately informed her mother what had happened. The next day she was-examined by a physician, who found that the hymen has been, ruptured,—he thinks recently ruptured; cannot tell how recently,but thinks within two or three weeks. A disclosure within proper time, it has been said, is some corroboration. People v. O’Sullivan,, supra. It is true that all these things may be true, and yet she may have consented, and thus the crime not have been committed.. But it is not necessary that the corroborating evidence should be such as to exclude every hypothesis except that of guilt. People v. Ogle, 104 N. Y. 511, 515, 11 N. E. 53; People v. Elliott, 106 N. Y. 288-292, 12 N. E. 602.

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 where it is claimed the assault was committed, and on the road leading to his house. The witness testifies that the woman who was riding with him “was sitting half way out of the wagon, and seemed ready to jump;” so that we have testimony independent of the prosecutrix that, on the night the assault was alleged to have been committed, the defendant was in her company, so that he had the opportunity, at least, to commit the offense charged. I think that is corroborative evidence tending to connect him with commission of the crime, and it is material evidence. In the case of Linsday v. People, 63 N. Y. 143-157, the accomplice had testified that the prisoner and himself removed the body of the murdered .man at night, from the place where it had been concealed during the day. The wife of the accomplice testified that her husband was absent from his house until a late hour that night, and the court held that her testimony corroborated the accomplice in material facts. “It was a fact so material to the whole story told by the witness that, had it been proved that he was in the house during the hours mentioned, his whole story would have fallen to the ground and proved false.” The evidence that the defendant was with the prosecutrix on the evening in question was very material, and, applying to it the test of materiality suggested in the case of Linsday v. People, by proof that on the evening in question he was at home, or' far distant from the place of the alleged assault, so that it would have been impossible for him to have committed it, the whole story of the prosecutrix would be discredited, and her case destroyed. I think, therefore, there was evidence corroborating the prosecutrix, not only as to the fact that she had been assaulted, but also corroborating evidence tending to prove that the defendant was the person who committed that assault, and that therefore the judgment of conviction should be affirmed.

PUTNAM, J., concurs.