People v. Deschessere

The nature of the crime charged forbids our dwelling upon the facts, and it is only necessary to refer to them so far as to point out—and that but briefly—the reasons for which we think the judgment should be reversed.

The people claim to have proved that the defendant committed the act of which he is accused with one Louis Astorita, a youth 17 years of age, who, it appears, was an imbecile or person of weak intellect, or, as his father characterized him, “crazy.” This youth was the principal witness, and although he said that his father had told him what to say in the police court (which, substantially, was what he testified to on the trial), when first interrogated, when further questioned by the counsel for the defendant, he said that he had made mistakes about it, and that the story he told was not true. The unreliability of his testimony was thereafter emphasized, for the learned trial judge took him in hand, and, after calling his attention to the contradictions which he had made, gave him an opportunity to explain them; but he again repeated that the statement that the defendant was the guilty party was not true, and then reasserted that his father told him to tell the story which he had told. It shocks one’s sense of justice that a person should be convicted, and should serve a long term in prison, upon testimony so unreliable, inconsistent, and contradictory. The weight to be given such testimony was commented upon in People v. Ledwon, 153 N. Y. 10 , 46 N. E. 1046 , wherein the principal witness was a weak, ignorant boy, who spoke in a foreign tongue, and who upon the trial had stated that on a former occasion he had given false testimony; and it was said, “Guilt in such a case cannot be established beyond a reasonable doubt by the testimony of such a witness, who is evidently, either from moral or mental defects, irresponsibleand the judgment of conviction, for that reason, was reversed. Although in the case at bar the youth

“The Code contains no specific provision that a conviction under section 303, Pen. Code, cannot be obtained upon the unsupported evidence of the person upon whose body the act of sodomy has been consummated; and in view of the fact that such specific provision is made with regard to the crimes of abduction, compulsory marriage, rape, and defilement (section 283, Pen. Code), it may well be doubted whether in any case under section 303 corroboration is necessary.”

In the absence, however, of such specific provision, the court should follow the general provisions which have been enacted, and legal precedents. As pointed out by the defendant, section 399 of the Code of Criminal Procedure requires that:

“A conviction cannot be had upon the testimony of an accomplice, unless lie be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

And it has been expressly held in Reg. v. Jellyman, 8 Car. & P. 604, 34 E. C. L. 916, that:

“Although consent or nonconsent is not material to the offense, yet as the wife, if she consented, would be an accomplice, she would require confirmation; and so it would be with a party consenting to an offense of this kind, whether man or woman.”

The learned trial judge was asked to charge that, under section 303 'of the Penal Code, the complaining witness is an accomplice, and that, as such, no conviction should be had upon his testimony unless it was corroborated by other evidence tending to connect the defendant with the commission of the crime, which requests were denied, and the defendant excepted. Upon these requests, we think the dilemma was presented either that the complaining witness was so deficient in intelligence as not to understand the nature of the crime or the bearing of his testimony, in which case he was not such a competent witness that, upon his testimony alone, the conviction should stand, or else that he was mentally competent, in which event, understanding the nature of the crime, he was capable of consenting, and thus became an accomplice, which required that, to sustain a conviction, his testimony should be corroborated. There is, of course, the additional phase that, without being entirely devoid of understanding, he may have been of a mind so weak that he did not comprehend what he was doing, and therefore did not consent; but that would present a question of fact, as to whether or not the act was voluntary on his part, which would have required the submission to the jury of the question whether or not he was an accomplice,

We do not overlook certain of the other testimony in the case bearing upon the possibility or probability that the defendant was the guilty person; but upon the question of the identity of the criminal we have only the words of this half-witted youth, who in one breath says that it was the defendant, and in the next withdraws this statement and says that he had told an untruth when he said that it was the defendant, thus preventing any reliance being placed upon his testimony.

Upon the whole case we do not think that the defendant’s guilt can, upon the testimony, be said to be established beyond a reasonable doubt, and therefore, as said in the case to which we have already referred, of People v. Ledwon, supra, the defendant was, “under the plain provisions of the statute, entitled.to have the jury directed by the court to acquit.”

The judgment, accordingly, should be reversed, and a new trial ordered. All concur.