p. 187Supreme Court-General Term-Fourth DepartmentPEOPLE v. NICHOLAS N. BETSINGER.Headnote
Evidence—Abduction.Under an indictment for abduction in 1886, evidence of declarations of the accused, made in 1889 and of the physical condition of the female in 1890, is inadmissible.
Appeal from a judgment of the court of sessions of Onondage county and from an order- of said court denying a motion for a new trial on conviction of the appellant of the crime of abduction. The indictment was found on the 8th day of May, 1891, and charged the defendant with the crime of abduction on the 1st day of June, 1886, at the town of Marcellus; and that the ■defendant did “feloniously take one Zada Young for the purpose of sexual intercourse, she, the said Zada Young, being then and there a female under the age of sixteen years, and he, the said Nicholas N. Betsinger, not being then and there her husband, against the form of the statute in such case made and provided and against the peace of the People of the state of New York and their dignity.” And the indictment contained a second ■count charging the defendant with the same crime in that he did “feloniously receive, employ, harbor and use one Zada Young for the purpose of sexual intercourse, she, the said Zada Young, being then and there a female under the age of sixteen years, and he, the said Nicholas N. Betsinger, not being her husband, against the form of the statute,” etc. And the third count alleges that on the same day the defendant “feloniously did take, receive, employ, harbor and use one Zada Young for the purpose of prostitution, she, the said Zada Young, being then and there a female under the age of sixteen years, against the form of the statute,” etc. The trial took place in the court of sessions of Onondaga county on the 16th day of June. 1891.
Harrison Hoyt, for appellant.
p. 188B. J. Shove, assistant dist.atty., for respondent.
We think it was error to admit the evidence of Alice Higley of the conversations between her and the defendant in 1889.
(2) Also, in admitting the evidence of physicians who made an examination of Zada Young in 1890, and who gave evidence ■tending to indicate that upon such examination they found a broken hymen.
(3) We think in the cross-examination of Sarah Betsinger,. ■wife of defendant, improper questions were allowed to be put to her touching the declarations alleged to have been made by ■her to Mrs. Richards. The conviction, judgment and order must, therefore, be reversed.
Conviction, judgment and order reversed and a new trial ordered, and the clerk of Onondaga county directed to enter judgment and remit certified copy thereof with the return and decision of this court to the court of sessions of Onondaga county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.
HARDIN, P. J., MARTIN and MERWIN, JJ., concur.