Majority
p. 173SUPREME COURT—APP. DIVISION—SECOND DEPT., April 28, 1911. THE PEOPLE v. HARRY MORMON. (144 App. Div. 280.)
Headnote
(1.) Rape[1] —Corroborative evidence.Appeal from a judgment convicting the defendant of rape, second' degree, in that he had voluntary sexual intercourse with a girl under the age of eighteen years. Evidence examined, and held, that a new trial should be had in the interest of justice in that, considering the? severe punishment inflicted, the prosecution did not produce evidence-at its command corroborating the complaining witness.
Appeal by the defendant, Harry Mormon, from a judgment of conviction of the County Court of Elings county, rendered! against him on tire 19th day of April, 1909, upon an indictment for rape in the second degree.
Frank A. Crowe, for the appellant.
Peter P. Smith,, assistant district attorney, for the respondent.
The defendant has been convicted in the County Court of Kings county of the crime of rape in the second degree, and has been ¡sentenced to the State prison ia,t Sing Sing for an indeterminate period, the minimum, seven years and five months, and the maximum, ten years. He is a young man, twenty-three years of age, and the nape consisted of voluntary-intercourse with a girl under the age of eighteen years. The
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defendant’s guilt was clearly established by the evidence of the complainant, but the corroborative proof required by the statute (Penal Law, § 2013) is unsatisfactory. The appeal was submitted without argument, and we find on the brief of the respondent that the proof of corroboration consists in the fact that the girl and the defendant were found in bed together. There is no proof in the ease that the girl and the defendant were found in bed together. There is evidence that the girl was found in the defendant’s bed, but no evidence that he was there, either in the bed or in the room, 'at the time. Without deciding that the evidence, as we find it, is not sufficient to meet the requirements of corroboration, yet in v-iew of the very severe punishment inflicted, we 'are inclined to 'think that the clear, precise and strong proof suggested by the respondent’s brief, .-and evidently at the command of the prosecution, should have been presented; and we, therefore, direct that a new trial he had in the interests of justice.
The judgment of conviction 'should be reversed).
Hirschburg, Burr, Woodward and Rich, JJ., concurred; Jerks, P. J., concurred in the result.
Judgment of conviction of the County Court of Kings county reversed and new trial ordered.