Haddock v. Naughton , 81 N.Y. Sup. Ct. 390 ( 1893 )

PER CURIAM.

Without considering or passing on the ques-raised as to whether the answer properly alleged a justification, we are of opinion that the evidence offered to show that plaintiff attempted an outrage upon his daughter Anna was properly ■excluded by the trial court. This case did not involve a question ■of motive or intent. The simple question was, did the plaintiff have unlawful intercourse with his daughter Mary? It is only in very exceptional cases, an issue being raised as to the commission of a crime by a party to the action, that another distinct offense ■can be shown. Those cases are where the intent or motive or knowledge of the party is a subject of inquiry. Thus, in Cary v. Hotailing, 1 Hill, 311; Hall v. Naylor, 18 N. Y. 588, and all the other ■cases cited by appellant, the intent or motive of the alleged wrongdoer was in question, and necessary to be shown. The case of Mayer v. People, 80 N. Y. 364, was where the defendant was indicted for false pretenses. Before he could be convicted it must be shown that he intended to cheat and defraud. On that question, ■evidence of similar transactions at about the same time was held competent. In the opinion of Justice Earl, in the note at the end of said case, the learned judge quoted from Wharton’s American ■Criminal Law, as follows:

“Where the scienter or quo anima is requisite to, and constitutes a necessary ■and essential part o£, the crime with which the person is charged, and proof •of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.”

In this case the defendant, to establish his justification, assuming that one was alleged in the answer, was not compelled to show motive, intent, or scienter of the plaintiff. He was simply bound to show that plaintiff had unlawful intercourse with his daughter. We think that he could not do so by showing an outrage, or attempted outrage, on the person of another daughter. No other error is suggested by the learned counsel for the appellant; nor is it claimed that the judgment should be reversed on the evidence. We therefore conclude that the judgment should be affirmed, with costs.