People v. Lammes

The defendant was convicted in Monroe county of the crime of rape in the second degree.

Defendant formerly resided with his wife in the village of Spencerport, H. Y., where he conducted a bakery. In the year 1922 the complainant, Gertrude.Scharn, went to work for defendant .in his bakery, and they became intimate friends, she residing with defendant and his wife while she worked for them.

In the fall of 1922 complainant went to Ogden, Utah, to live with her father, and in December, 1922, defendant went to Utah and saw the complaining witness. He returned to Spencerport in January or February, 1923, and continued to live with his wife in that village. The complaining witness, Miss Scharn, returned to Rochester April 30, 1923, defendant having furnished her money to defray her traveling expenses. When she arrived in Rochester, in response to her request over the telephone, defendant went to the Hew York Central station

On the trial she testified that said intercourse took place at that time, and there was sufficient evidence corroborating the prosecutrix as to the act of sexual intercourse with defendant, but she was not sufficiently corroborated as to her age.

She testified that she became eighteen years of age on the 17th day of May, 1923, and that the act of sexual intercourse charged against defendant was committed on the 1st day of Hay, 1923, only sixteen days before she became eighteen years of age, according to her own testimony.

The law requires that in a case of this character the prosecutrix must be corroborated, and that such corroboration must extend to every material fact essential to constitute the crime charged, and in this case that rule would apply to the fact of the age of the prosecutrix, as well as to each of the material facts essential to constitute tho crime. (People v. Plath, 100 N. Y. 590 ; People v. Page, 162 id. 272.)

The only corroboration of the prosecutrix on the question of her age is an affidavit made by her mother (deceased) on a school census blank and sworn to before a police officer of the city of Eochester as a commissioner of deeds. According to that affidavit the prosecutrix was under the age of eighteen years at the time she claimed to have had intercourse with the defendant.

I think the admission of this affidavit of the mother, purporting to state the date of birth of the prosecutrix, was improper and that it constituted such a substantial error as to require the reversal of the judgment. This affidavit was hearsay evidence pure and simple. It was received on the theory that it established the pedigree of the complainant. It could not be properly received for any such purpose for age is not essential to establish pedigree, and the question of pedigree was not

One of the facts that the People were obliged to establish in order to convict this defendant was that the complainant was under the age of eighteen years at the time he had intercourse with her. (Penal Law, § 2010.)

No conviction could properly be had upon the testimony of the prosecutrix unsupported by other evidence. (Penal Law, § 2013.)

The only other evidence in this case on the question of the age of the prosecutrix was the affidavit of her mother above referred to.

Under the circumstances as disclosed by the evidence an inspection of the complaining witness would not aid the jury in determining her age at the time she alleges the crime was committed. (People v. Todoro, 160 N. Y. Supp. 352 ; People v. Marks, 146 App. Div. 13 .)

The judgment of conviction should be reversed and a new trial granted.

All concur, except Davis and Cbouch, JJ., who dissent and vote for affirmance in an opinion by Davis, J.

The crime is alleged to have occurred on May 1, 1923. The main facts are well established. Gertrude Scham, the complaining witness, testified that she became eighteen years of age on May 17, 1923. This evidence must be corroborated because it constitutes one of the material facts essential for a legal conviction. (Penal Law, § 2013; People v. Todoro, 224 N. Y. 129 ; People v. Harrison, 63 Misc. Rep. 18 .)

To this home on November 8, 1920, came one Carroll, a policeman, taking the school census. This was apparently •shortly before the mother’s death, for Gertrude’s testimony is that her mother died during that month. The usual school ■census blank was made out and Alida Scharn, the mother, signed it and made oath as to the truth of the statements therein contained before the police officer, who was also a commissioner ■of deeds.

The father was not within the jurisdiction of the court at the time of the trial. That sworn statement of the deceased mother was produced, identified and received in evidence over the objection of the defendant’s counsel. It stated that Gertrude Scharn was born in Holland on May 17, 1905.

I think this evidence competent on the question of complainant’s age. It is, of course, hearsay. So also was the, testimony of Gertrude herself on that subject. Declarations 'in regard to pedigree, though hearsay, are admissible where made before a controversy arose or action brought, and the declarant is a deceased relative. (Young v. Schulenberg, 165 N. Y. 385 ; Aalhom v. People, 211 id. 416 .) It is admitted on the theory that it is the best evidence that can be then obtained. (People v. Koerner, 154 N. Y. 355 , 370.) Matters of pedigree include such facts as those concerning birth (Eisenlord v. Glum, 126 N. Y. 552 ), and the time when such event happened. (Washington v. Bank for Savings, 171 N. Y. 166 , 173.) Age may not of itself be an element of pedigree (People

The number of persons having actual knowledge of the date of birth is always limited, generally at the most to the mother, father, physician, and midwife or nurse. There are times when such witness cannot be called to make proof of this essential fact, so the law of necessity accepts records or declarations made by such persons when there was no object to deceive, rather than concede that proof of a patent fact is impossible. (Washington v. Bank for Savings, supra, 175 ; Griffin v. Train, 90 App. Div. 16 , 20; 22 C. J. 216, 234.) So a record made in the family Bible may be admitted to prove the date of birth and thereby the age of a person (Penal Law, § 817; People v. Slater, 119 Cal. 620 ; 33 Cyc. 1473), no matter by whom the entry is made (Union Central Life Ins. Co. v. Pollard, 94 Va. 146 ; 36 L. R. A. 271 ; Jones v. Jones, 45 Md. 144 , 160; Wigm. Ev. [2d ed.] § 1496) ; and direct testimony may be given by a physician based on a record he made at the time of the birth-of a child, or by the father concerning an entry in the family Bible, as showing the age of a prosecutrix in such an action as this. (James v. State, 125 Ark. 269 .)

Records of such facts as the age of a person must have recognized reliability and authenticity or they will be excluded. (Penal Law, § 817; People v. Todoro, supra; Connecticut Mutual Life Ins. Co. v. Schwenk, 94 U. S. 593 ; Bowen v.

In such cases the appeamace of the complaining witness on the stand may be considered by the jury in reaching a conclusion as to her age. (Penal Law, § .817; People v. Ragone, 54 App. Div. 498 ; People v. Elco, 131 Mich, 519 ; Commonwealth v. Hollis, 170 Mass. 433 ; State v. Davis, 237 Mo. 237 ; Wigm. Ev. §§ 222, 1154, subd. 3.) In this case such evidence might be of slight value because the complainant lacked but sixteen days of being eighteen years of age when the act was perpetrated, and she was fourteen days past eighteen when the

I vote for affirmance of the judgment of conviction.

Crouch, J., concurs.

Judgment of conviction reversed upon questions of law and fact and new trial granted.