People v. Morris — 35 N.Y. St. Rep. 942

Majority

p. 942

The People, Resp’ts, v. George W. Morris, App’lt.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

1. Rape—Cokroborating testimony.

Proof that the defendant when charged with the crime in the presence of his wife made no denial, hut seemingly admitted it, is sufficient to corroborate the complainant’s testimony.

2. Same—Evidence.

Complainant’s mother testified to her age, and the district attorney refrained from giving further proof thereof, on the assurance of defendant's counsel that no question as to her age was made. Held, that the exclusion of evidence to discredit the mother as a witness was not error.

Appeal from judgment of the court of general sessions, convicting the defendant of rape upon a female under the age of sixteen years.

p. 943

On the trial the complainant testified to the commission of the crime, and her evidence and that of her stepfather showed that defendant was charged with the crime in the presence of his wife, and did not deny it, but in reply to a question if it was true nodded his head.

Purdy & McLaughlin, for app’lt; McKenzie Semple, for resp’ts.

The principal point raised upon this appeal is that there was no corroboration of the complainant’s story as required by § 283 of the Penal Code.

The answer made by the district attorney is that the corroboratory evidence was amply sufficient to satisfy this requirement; but he has nowhere taken the trouble to call the attention of the court to where such evidence is to be found in the case, or what it was; and it has been necessary for us to examine the record and the points of the appellant for the purpose of ascertaining of what this alleged corroborative evidence consists.

It seems to us upon an examination of the record that the fact that the defendant was charged with the crime and made no denial under the circumstances disclosed in the case was sufficient corroboration to satisfy the requirements of the statute.

It may be true that the evidence in this regard came from sources entitling it to but little credit; but of .this the jury were the judges and it does not appear that they have come to an improper conclusion. The extent and nature of the corroborating evidence is not fixed by the statute. And by the statute it was only intended to prevent unjust convictions resting upon the unsupported testimpny of a single individnal. In the case at bar, as already stated, the defendant was charged with the commission of the crime and not only made no denial, but seemingly admitted the accusation. This was certainly a satisfaction of the requirements of the statute, as under the circumstances silence might well be deemed admission.

It is also urged that the court erred in sustaining the objection to a question put by the defense to one of the witnesses for •the prosecution; namely, the mother of the girl upon whom the offense charged is alleged to have been committed. She testified to the age of the child and upon cross-examination was asked: “ Is it not true that you are a prostitute? ”

It is claimed that this question was of vital importance, as she was the only witness to prove the age of the girl; and as proof of this question of age in a case of this description is an essential element, it was of great importance to the defense to discredit this witness by showing her character and mode of life.

An examination of the record, however, shows that after the witness in question had testified to the age of the complainant the district attorney exhibited a certificate of the board of health, and stated that she was bom in the year which had been testified to by the witness. The district attorney refrained, however, from offering this certificate in evidence upon the assurance of the counsel for the appellant that he did not make any point in respect to that. The court then said: “ There is no question made

p. 944

as to the age of the girl. She is under sixteen years of age.” And the counsel for the appellant responded : “ There is no-question of the girl’s age; she is under sixteen.” This seems conclusively to dispose of the necessity of discrediting the witness-because she had testified to the age of the girl.

There seems to be no error calling for a reversal of the judgment, and it should be affirmed.

Daniels and Brady, JJ., concur.