People v. Farina

But suppose the defendant had in the most unequivocal way admitted that he was responsible for the condition of this complainant, what bearing has that upon the crime charged? The rule in such cases is that the corroborative evidence, whether consisting of acts or admissions, must at least be of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime. The corroboration must extend to every material fact essential to constitute the crime. People v. Page, 162 N. Y. 272 , 274, 275, 56 N. E. 750 , and authorities there cited. The crime charged was an assault upon the complainant on the 6th day of February, 1905, this date being changed by the testimony to the 26th day of February, 1905; and, assuming it properly in the case, a second assault committed about two weeks later, or the middle of March. These are the only two occasions when the complainant alleges that the defendant assaulted her, and it cannot be claimed that the crime in any possible view was perpetrated later than that date. The complainant’s child was born on the 26th day of December, 1905, 290 days after the last alleged assault. Courts will judicially notice the ordinary period of human gestation (Rex v. Luffe, 8 East, 193), and, according to Lord Coke, the ■ period by the law of England is fixed at 40 weeks, and the present doctrine seems to be in harmony with this view. 3 Am. & Eng. Ency. of Law, 884, and authorities there cited. Forty weeks is 280 days; and, assuming the second alleged act of assault on the part of the defendant to have been committed on the 12th day of March, 1905, two weeks after the first alleged assault, the period of gestation would have run on the 16th day of December, 1905. Taking the most favorable view of the evidence for the prosecution, we are forced to hold that this girl passed over the ordinary and legally defined period of gestation 10 days in order to connect the defendant with the crime of rape alleged in the indictment, while if it is confined to the 26th day of February, according to the rule approved in People v. Flaherty, 162 N. Y. 532 , 541, 57 N.

The “indictment alleges acts constituting "but one crime, and, while the mistake as to the date will not prevent the prosecution from proving the crime charged in the indictment, the indictment will be deemed to cover the offense attempted to be proved nearest in point of time to the date in the indictment.”

The indictment in the case at bar alleged that the act was committed on the 6th day of .February. The evidence of the complainant fixes the time of the assault at the 26th day of February, 1905, followed by a second two weeks later.' It must be held, therefore, that the facts constituting the crime alleged in the indictment occurred, if at all, on the 26th day of December, 10 full calendar months from the alleged assault. The fact that this child was born at this time was evidence, no doubt, that a crime had been committed, but it was not evidence that the defendant was guilty of the crime charged in the indictment (People v. Robertson, 88 App. Div. 198 , 201, 84 N. Y. Supp. 401 ), nor did the alleged admissions of the defendant in relation to the girl’s condition when he was accused of producing the pregnancy have any tendency to corroborate the complainant’s testimony as to what occurred on the 26th day of February, because, as a matter of law, her condition could not have been due to the intercourse alleged to have taken place on that day. The complainant in the orderly course of nature must have conceived her child on or about the 22d day of March, 1905, 24 days after the date alleged for the commission of the crime, and whatever admissions the defendant may have made in relation to intercourse happening after the 26th day of February, 1905, could have no possible relation to the crime complained of, and as the latest date mentioned in her testimony was two weeks later, or the 12th day of March, 1905, we must presume a violation of the laws of nature in order to hold that the testimony of the complainant’s mother and her midwife friend had any tendency to corroborate the testimony of the complainant that the defendant committed rape upon her on the 26th day of February, or the 12th day of March, 1905.

It was squarely held in the case of People v. Robertson, supra, that upon a trial under an indictment for rape evidence that, subsequent to the commission of the rape charged in the indictment, the defendant committed another rape upon the same female, was error requiring the reversal of a judgment of conviction, and this error was committed here, though without objection or exception. This would in and of it- " self, in spite of the neglect of the defendant’s counsel, justify a reversal. Section 527, Code ’Cr. Proc. But, when to this is added the fact that the testimony offered in corroboration could not tend in any manner to corroborate the testimony of the complainant in reference to what took place on the 26th day of February, the duty devolves upon this court of interposing. Whether there is any evidence of corroboration in such cases is a question of law for the court; and if the case is submitted to the jury without any legal proof in support of the charge, except that coming directly or indirectly from the complainant herself, a conviction cannot be upheld. The testimony of the girl alone was not sufficient, and there was no other legal evidence, as we have pointed out. People v. Page, 162 N. Y. 272 , 277, 56 N.

The judgment appealed from should be reversed, and a new trial granted.

RICH, J., concurs; HÍRSCHBERG, P. J., and MIRRER, J., in result. BURR, J., dissents.