People v. O'Connell — 35 N.Y. St. Rep. 940

Majority

p. 940

The People, Resp’ts, v. William O’Connell, App’lt.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Bape—Attempt.

On the trial of an indictment for attempt to commit rape the complainant testified to the circumstances, and her battered appearance thereafter was shown. The prosecution then rested and a motion was made to acquit on the ground of want of corroboration, which was denied. The district attorney was afterwards allowed to introduce testimony which fully corroborated complainant. Held, that the conviction was proper.

Appeal from judgment of the court of general sessions, convicting the defendant of the crime of attempt to commit rape.

On the trial the complainant testified to the circumstances attending the assault upon her, and her battered appearance after such assault was shown by the testimony of witnesses and by photographs: The prosecution having rested, defendant’s counsel moved for a direction to the jury to acquit on the ground that the complainant’s testimony was not corroborated, which request was denied. The prosecution was afterwards allowed to introduce the testimony of the barkeeper, Sparks, who testified that he beard complainant scream and running into the room found her upon the floor with defendant partly kneeling upon her, and otherwise corroborated her testimony.

Howe & Hummel, for app’lt; McKenzie Semple, for resp’ts.

There are two grounds because of which the appellant claims the right to a new trial. One is that at the time the district attorney rested his case there was no evidence supporting the testimony of the female defiled or" attempted to be defiled ; and secondly that the verdict was against the weight of evidence.

Neither of these objections can prevail. Instead of the verdict being against the weight of evidence, it is seldom in a case of this description that so satisfactory proof of an assault is offered.

It may be true that when the district attorney rested his case there was but little evidence supporting the testimony of the complainant ; but her battered appearance resulting from the brutality

p. 941

with which she had been treated offered some rather convincing •evidence of the truth of the statement to which she testified.

But when the case was finally submitted to the jury there was ample corroboration in'the evidence of the barkeeper Sparks, who testified to seeing much of that of which the complainant had given •evidence. The defendant’s story as to the nature of the assault and the circumstances which led to it was certainly not such as was apt to carry weight with the jury. In fact it was entirely improbable.

It may be true that the complainant was under the influence of liquor, and that her associations were not such as tended to indicate that she was a virtuous woman; but, nevertheless, the circumstances to which she testified, corroborated as they were by her appearance and by the evidence of the barkeeper, were such as would properly carry conviction to the minds of the jury.

We see no reason for interfering with the judgment, audit should be affirmed.

Daniels and Beady, JJ., concur.