People v. Betsinger — 21 N.Y.S. 136

Majority

p. 136

PEOPLE v. BETSINGER.

(Supreme Court, General Term, Fourth Department.

November, 1892.)

Headnote

Abduction—Evidence—Examination by Physician. On a prosecution for abducting a female under the age of 16 years for the-purpose of sexual intercourse, it is error to admit testimony by physicians as-to what they found on an examination of the person of the female four years-after the alleged abduction.

Appeal from court of sessions, Onondaga county.

Nicholas N. Betsinger was convicted of the crime of abduction. He-appeals from the judgment and from an order denying his motion for a. new trial. "Reversed. •

The indictment was found on the 8th day of May, 1891, and charged the defendant of the crime of abduction on the 1st day of June, 1886, at the town of Mar.cellus, 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.

p. 137

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Harrison Hoyt, for appellant.

B. J. Shove, Asst. Dist. Atty., for the People.

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.