People v. Stott — 4 N.Y. St. Rep. 736

Majority

p. 736

The People of the State of New York, Resp’ts, v. John C. Stott, Appl’t.

(Supreme Court, General Term, First Department,

Filed December 30, 1886.)

Headnote

1. Abduction—Elements essential to the chime—Penal Code, § 3.'2.

It is provided by Penal Code, section 282, that: “A person who takes, receives, employs, harbors or uses, or causes, or procures to be taken, received, employed, harbored or used, a female under the age of sixteen years, for the purpose of sexual intercourse, * * * is guilty of abduction, and punishable by imprisonment for not more than five years or by a fine of not more than $1,000, or both. Held, that the crime was complete whenever a female under sixteen years was taken, received, employed, harbored, used or caused to be, for such purpose, and that the intercourse need not be proved if the purpose were otherwise show n, but that if it actually occurred it might be shown as an element or incident tending to establish the purpose,

2. Verdict—When supported by sufficient evidence cannot be disturbed.

Where the .evidence for the people, if accepted as true^ established every element necessary to the crime: Held, that the determination of the jury rendered thereon could not be disturbed.

3. Official duty—Neglect to perform will not be presumed.

Upon an appeal from a conviction, it did not appear whether or not, at the time that the defendant was arraigned, he was caudoned before making his statement as required by the Code. Held, that as this was a duty of the magistrate, it would not be presumed that it was not performed.

4. Testimony—Irreqular admission op, how cured.

Ho attempt was made to prove the contents of such record by paroi, but as far as material, it was shown by a letter admitted by the prisoner to have been written by him, the genuineness of which was not disputed at the time. Held, that the admission of the testimony, even if an irregularity, was wholly cured by the testimony of the defendant, which left no doubt of the genuineness of the letter.

5. Opinion of expert.

Held, that the opinion of a doctor that the genitive organs of the female had been penetrated within a week was properly received. It did not embody the character of the penetration.

p. 737

Appeal from judgment of the court of sessions on conviction for abduction.

Howe & Hummell, for appl’t; McKenzie Semple, for resp’ts.

The appellant was indicted, tried and convicted of the crime of abduction under the provisions of section 282 of the Penal Code.

The first subdivision of that section is as follows : “A person who (1) takes, receives, employs, harbors or uses, or causes or procures to be taken, received, employed, harbored or used, a female under the age of sixteen years, for the purpose of sexual intercourse, or without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of marriage * * * * is guilty of abduction and punishable by imprisonment for not more than five years or by a fine of not more than $1,000, or by both.”

This statute was intended to throw absolute protection around females of less than sixteen years of age, against the evil of sexual intercourse to which their tender years may be exposed, whether under the form of marriage or without marriage, and without regard to the consent of the female, or of her father, mother, guardian or other person having legal charge of her. The crime created by this statute is quite independent of the fact whether there be actual seduction or fornication, or forcible intercourse, and the commission of neither of those offenses is material, except when the crime is merged in the higher felony of rape.

The crime of this section of the Penal Code is complete whenever a female under sixteen years is taken or received or employed, or harbored, or used, or caused so to be, for the purpose of sexual intercourse, or for the purpose of marriage; and neither the intercourse nor the marriage need be proved, if the purpose of taking be otherwise shown; but either of them may be proven when it has actually occurred as an element or incident tending to establish the purpose.

The objects of this statute are most beneficial in the interests of public and private morality, and it is the duty of courts to see that its provisions are respected and enforced; and whoever was instrumental in procuring its enactment is entitled to commendation, and not to censure.

The learned and able recorder who presided at the trial of the appellant in this case gave to the statute under which he was indicted its correct construction. He gave to the accused a fair and impartial trial, and he submitted to the

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jury the questions of fact upon which the guilt or innocence of the accused depended with a clearness which could not have been misapprehended. The female whom the appellant, was charged with having abducted was shown to have been under sixteen years of age. There was no doubt from the evidence that she was taken to the appellant’s room in the first place by him, and that she afterwards visited his room with another female at his request, or on her own suggestion, for some purpose, either innocent or guilty. The evidence of the people, if believed by the jury, showed the purpose to have been a guilty one, for it proved actual fornication either with or without the consent of the female. The testimony of the doctor called by the people tended to sustain the fact of sexual intercourse. There was also abundant corroboration, if believed by the jury, of the testimony of the female.

This testimony was sought to be discredited by the explicit denials of the appellant, and by strong evidence of his general good character, as well as by testimony of other-witnesses contradictory of that on behalf of the people. The jury were instructed to give to these their full weight and not to convict the appellant unless the whole evidence of the case convinced them beyond reasonable doubt that the girl was taken or induced to come to his room with the-intent or for the purpose on his part of having sexual intercourse with her.

We can see nothing in the facts of the case to justify us in concluding that the verdict was not supported by sufficient evidence, or was against its clear weight, or that there-was any failure in establishing any necessary element of the crime, if the jury accepted the people’s evidence as true. We are not at liberty, therefore, to disturb the verdict on any question of fact.

The questions of law were rightly disposed of. The evidence of the statements of the appellant, when arraigned before the accused, related chiefly to his admission that the letter purporting to have been written by him to the girl was genuine. It does not appear affirmatively that he had been cautioned by the magistrate before making his statement, as required by the Code; but it does-not appear that he had not been. As that was a duty of the magistrate, it will not be presumed that it was not performed. It has been doubted in some cases whether such a statement is admissible in evidence, except when taken by the magistrate in the prescribed form, in which case it must be proved by the record itself.

In this case there was no attempt to prove the contents of such record by oral evidence, but so far as it was material to prove that the witness showed him, the prisoner, a letter

p. 739

while he was being examined, and that “he said that it was his handwriting; that he wrote the letter.” In this connection it is material to notice that the genuiness of the letter was not disputed at the trial. The defendant himself when on the stand admitted it, and attempted to explain the letter so as to disarm it of any guilty interpretation. In our opinion, there was no fatal error in admitting the testimony under all the circumstances of the case, and if there might have been some taint of irregularity, it was wholly cured by the defendant’s own testimony, which left no room, for doubt of the genuineness of the letter. Nothing else material to the case was shown by his declarations made at that time. The construction and intent of the letter under the conflicting evidence were questions for the jury. The other alleged error most strenuously urged, is that of allowing the doctor to express an opinion that the genitive organs of the female had been penetrated with force within a week. That opinion was proper. It did not embody an opinion as to the character of the penetration, or whether by sexual connection, or otherwise, but a mere opinion that from the manifest injuries, there had been some sort of penetration by force. It was of the same nature as the very common testimony that the appearance of a wound showed that it had been inflicted by some instrument and some degree of force.

We have not neglected to consider all the other questions raised in the case, and none of them impresses us with the idea that there was any material error committed by the court. Our attention has been called to the case of the People v. Mondon, lately decided by the court of appeals, and reported in No. 7, Vol. 4, of Central Reporter. That case announces no new law, but simply recognizes and enforces an existing rule. It does not show that the admission of confession of handwriting at an examination is fatal to a conviction, where on the trial of an indictment the genuineness of the letter thus admitted is not in dispute, but is freely again admitted by the defendant. This latter fact distinguishes the case from the one just referred to.

We think the judgment must be affirmed.

Daniels and Brady, JJ., concur.