People v. Kearney — 13 N.Y. St. Rep. 246

Majority

p. 246

People of the State of New York, Resp’ts, v. Charles E. Kearney, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed January, 1888.)

Headnote

L Criminal law—Seduction under promise or marriage—What evidence requisite to conviction—Penal Code, §5 284, 286.

It to provided by Penal Code, section 284, that a person who, unde» promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, to punishable by. fine or imprisonment, or both, and by section 286 of that Code, that no conviction.can be had for the offense upon the testimony of the female seduced unsupported by other evidence. Held, that the supporting evidence need .only relate to the promise of marriage and the carnal connection, .and- that.tiie former might be established by proof of such circumstances as usually attend marriage engagements, and the latter by proof of opportunities and relations of confidence and affection between me parties.

3. Satdbdat—Half holiday—Submission of case to jury on afternoon of—Laws 1887, chap. 289, amending Laws 1875, chap. 27, as amended by Laws 1881, chap. 30.

It to provided by Laws 1887, chapter 289, amending Laws 1875, chapter 27, as amended- by Laws 1881, chapter 30, that Saturday, af*er twelve o’clock m., shall be a half holiday, and that such half day shall he considered as the first day of tlic week, commonly called Sunday, and as public half holidays for all purposes whatsoever as regards the transaction of business in the public ornees of this state or counties of this state. Held,

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that a court was not a public office within the Intent and meaning of this statute, and that the submission of a case to the jury ou Saturday after the hour of twelve o’clock u. was not erroneous.

W. P. Goodclle, for app’lt; Lawrence T. Jones, tor resp’ts.

The Penal Code, provides, that a person who under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by fine or imprisonment, or both. But it also provides, that no conviction can be had for the offense npon the testimony of the female seduced unsupported by other evidence. Sections 284, 286.

It was under this statute that the defendant was indicted, tried, convicted and sentenced. On the trial the offense charged was proved by the complainant, who was the principal witness. She, in effect testified: That the defendant invited her to accompany him to a place called Long Branch to attend a picnic, on the 4th of July, 1885; that she went to the lake with a Miss Murray; that they there met the defendant and several others and took the boat for their place of destination; that after arriving there, and after having danced, she and the defendant took a walk around the grove alone; that the defendant then asked her to marry him and named the following October, as the time when it should take place; that she assented to his offer and promised to become his wife; that the defendant then had sexual intercourse with her; that she was induced to submit to his embraces by reason of his pursuasion and seductive acts and her reliance upon his promise to marry her.

The evidence given by the people, which tended to corroborate that of the principal witness, was given by her father and mother. Her mother testified: “ I remember the 4th of July, 1885 referred to, the day on which then they went to the picnic. I saw Kearney there that day in the afternoon; before that he used to call there regularly on my daughter; he said I want to hurry up now and go to the picnic. My daughter and Katherine Murray went on the street car from where we lived; he said “ I will go down to the brewery; I will meet you at the pier; ” I guess it was about one o’clock when they went to the picnic; it might have been eight o’clock when they got home; I have heard Kearney talk to my daughter on the subject of marriage; in my own house in the parlor; he asked her, Mary, when are we going to get married ? she said I don’t know; just like that; he asked her when they were going to get married; when it would be settled for them to be married; and so he set about October, some time in October, 1885; she said she would get married to him; so he came to the house

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all along; she had her clothes fixed; some time in October when it come for them to be married he didn’t have no money; I asked him myself what was the matter with him? he said he couldn’t get the money; he said “ I oint got any money; I will have it against Thanksgiving; ” • when Thanksgiving come he didn’t have any money; they kept company still and he come to our house all along; I remember about the wedding-dress; Mr. Kearney saw it; he said it was handsomep Katherine Murray, Jimmie Hogan and Meehan and Charlie 'Kearney came back with her the evening after the picnic. Her father testified: “1 know Charlie Kearney, the defendant; I am the father of Mary Carroll; I suppose; I have seen the defendant at my house all through the summer of 1885; pretty much; before the 4th of July, he called there three or four times a week; I didn’t keep any track of it; I have often seen him there and have spoken to him there; he has visited with her there.”

An important question presented is whether the evidence of these witnesses supported the evidence of the principal witness sufficiently to justify the trial court in submitting the case to the jury. Before proceeding further it may be well to examine the authorities bearing upon this question to determine, if we may, to what extent and as to what facts the statute requires such a witness to be corroborated.

The case of Armstrong v. The People ( 70 N. Y., 38 ), arose upon an indictment under chapter 111, Laws 3848, which, in all its essential particulars, was identical with the provisions of the Penal Code, under which the indictment in this case was found. In that case it was held that under the provision declaring that a convision should not be had upon the testimony of the female seduced, unsupported by-other evidence, supporting evidence was only required as to the promise of marriage and the carnal connection. It was. also held that as to the promise of marriage the provision was satisfied by proof of circumstances which usually attend an engagement' of marriage. As to the illicit intercourse and the immediate persuasion and the inducements which led the female to consent, evidence of opportunities more or less frequent and continued, and that the relations of the parties were such as to indicate that confidence and affection for the accused on the part of the female, which rendered it probable that the act might have been done, were sufficient. And it was held further that the fact that the prosecutrix, in her testimony, limited the carnal connection to a single act and specified the time, did not require that the supporting evidence should be confined to that particular time; if it covered a period, including the specie fled time, it was sufficient to meet the requirements of the

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statutes, although there was no corroborative evidence as to the particular act testified to. See also Kenyon v. The People, 26 N. Y., 203 ; Crandall v. The People, 2 Lans., 309 ; Boyce v. The People, 55 N. Y., 644 .

Thus, from an examination of the authorities, we find that the supporting evidence need only relate (1) to the promise of marriage; (2) to the carnal connection, and that the former may be established by proof of such circumstances as usually attend marriage engagements, the latter by proof of opportunities and relations of confidence and affection between the parties.

The supporting evidence given by the father and mother of the complainant tends to show that the defendant, before, after and at the time of the alleged seduction, was visitingthe complainant as her suitor; that he called upon her three or four times a week and visited her evenings; that he invited her to go to this picnic, agreed to meet her at the pier; that he returned home with her that night; that after this he talked with her and her mother of their contemplated marriage; that the time for its celebration was appointed; that it was postponed and another day set; that he was shown the dress which the complainant proposed to wear at her prospective wedding.

This synopsis of the supporting evidence shows quite clearly, we think, that the principal witness was corroborated both as to the promise of marriage and as to the illicit intercourse, in accordance with the requirements of this "statute, as construed by the courts of this state. We think the corroboration of the principal witness was sufficient te require the submission of the case to the jury.

This case was submitted to the jury on Saturday, July 9th, 1887, at twenty-five minutes past twelve o’clock, p. M., This the appellant claims was' error. His claim is based upon the provisions of chapter 289, Laws 1887, amending chapter 27, Laws 1875, as amended by chapter 30, Laws 1881, which makes Saturday after twelve o’clock, M., a half holiday. The statute so far as material to the question here involved, provided that “such half days shall be considered as the first day of the week commonly called Sunday, and as public half holidays for all purposes whatever as regards the transaction of business in the public offices of this state, or counties of this state. On all other days or half days, excepting Sundays, such offices shall be kept open for the transaction of business. This provision is limited in its application. It relates only to the transaction of business in the public offices of the state or counties of the state. The question presented is whether a court is a public office within the intent and meaning of this

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statute. It cannot be properly said, we think,- that a court is a public office. A court is a tribunal established for the administration of justice. While a judicial officer may be a public officer, still, to speak of a court as a public office, would be to give" to the term an unusual and extraordinary meaning. The words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and proper use. Giving, then, to the words: “Public offices of the state or counties of this state,” their ordinary and familiar signification, they would not include a court.. They obviously relate to the buildings or rooms occupied by officers of the state or. county, who are required to keep public offices for the transaction of their business as such officers. This view is rendered quite manifest by the last sentence of the provision of the statute above-quoted, “that on all other days or half days excepting Sunday, such offices shall be open for the transaction of business. “If the claim that a court is a public office within the intent and meaning of this provision, be correct, then, it must follow that by virtue of the last provision all courts of every grade and character are required to be kept open on all days, except Sundays, and and the days and half days mentioned in the statute. Surely such was not the intent of the law. This statute, properly construed does not, we think, prohibit the holding of courts after twelve o’clock, m., on Saturdays.

On the trial the defendant called his father as a witness. On his cross-examination he was permitted to testify under the defendant’s objection, that he gave $100 to Mr. Costello to give to the overseer of the poor. This ruling was excepted to. We think the evidence was admissible. The witness interrogated was a witness for his son. . The people had a right to prove any act showing their relations and the interest of the witness as bearing upon his credibility. It is always competent for a party to show the relations, which exist between a witness and his adversary, and the party against, as well as the party for whom he is called. Starks v. The People, 5 Denio, 106 ; Newton v. Harris. 6 N. Y., 345 .

.There are no other exceptions which require special consideration. There were, we think, no errors committed upon the trial which require or would justify a reversal of the judgment or the granting of a new trial herein.

The judgment and orders appealed from should be affirmed, and the judgment as affirmed, remitted to the court of sessions of Onondaga county, to be carried into, effect by that court.

Hardin, P. J., and Eollett, J., concur.