People ex rel. Kenfield v. Lyon — 64 N.Y. St. Rep. 737

Majority

p. 737

The People ex rel. J. Tuttle Kenfield, Resp’t, v. Frank E. Lyon, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 27, 1894.)

Headnote

1. Deposition—Commission. .

An objection to the reading of a deposition de bene esse in evidence

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that there was no evidence to form a basis for its introduction, will be held to mean that no proof was given that the witness could not be procured at the term.

2. Appeal—Harmless error.

The answer to a question, though it calls for a conclusion, is not prejudicial, where it is the unavoidable conclusion from the testimony in detail, subsequently given by the same witness. «

3. Same—Error.

The admission of evidence, though incompetent, is not error, when given in answer to testimony on the same subject which was introduced by the adverse party.

4. Same—Jurisdiction—Presumption.

In the absence of any objection before the magistrates, it will be pre sumed, for the purposes of an appeal to the court of sessions, that the preliminary proceedings, necessary to give them jurisdiction of the person of the defendant, had been taken.

5. Same—Corroboration.

In a bastardy proceeding, corroboration of the prosecutrix is not nee essary.

Appeal from a judgment, affirming the order of filiation.

John, Gillett, for app’lt; I. A. Seamans, for resp't.

The defendant, a horseshoer by trade, took up the business of administering “massage,” and, under the title of Prof. Lyon, traveled from place to place in the region of Elmira and Canandaigua, holding himself out as a practitioner of the art which goes by that name. The mother of the bastard child, an unmarried woman of 33 years of age, who had been an invalid since she was 20, submitted herself to his treatment,'—-at first at her home in Naples, and afterwards at a hotel in Canandaigua. At the latter place, as she testifies, the defendant on three or four occasions in the fall of 1892 and spring of 1893, having her alone with him in his bedroom, in which he received his patients, with the door locked, in each case, after administering the treatment of massage, solicited and was permitted to have connection with her. She testifies that the child, to which she gave birth in the latter part of November, 1893, was the result of this connection. The order of filiation charged the defendant with the paternity of the child, and, after an appeal to and trial de nova by the court of sessions, that order was unanimously affirmed. The finding of that court on the question of fact cannot be disturbed. The evidence, though contradictory, depended largely for its probative force upon the apparent character and truthfulness of the witnesses, and, so far as those elements of credibility can be judged of from the printed testimony, the court below was justified in bestowing its credence as it did.

Several exceptions were taken to rulings of the court in the admission of evidence, but none, we think, for which the judgment should be reversed. The testimony of the mother of the child was taken, as we infer, de bene esse, although it appears to have been offered in evidence as a deposition “ taken by commission.” No order for the taking of the testimony was proved, nor is there in the record here any authentication of the deposition ; but the only ob

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jection which was made to its being read was that there was no evidence to form a basis for its introduction. This, we must suppose, related to the proof necessary to be made preliminary to the reading of evidence taken conditionally, namely, that the attendance of the witness could not be procured at the term.' But this proof was fully made by the testimony of Dr. Conley, who was the last witness to testify before the deposition was offered in evidence. That part of his evidence which related to the present condition of health of the mother of the child was objected to on behalf of the defendant as inadmissible and-incompetent, but it was admitted, and it showed that the mother of the child was then confined to her room by severe illness, and that it would not have been possible for bér to come to court. It would seem that this evidence, or the effect of it, must have escaped the attention of counsel for the defendant; but, however that may have been, no other objection was made to the deposition, and the counsel himself read in evidence that portion of it which seems to have been taken on his cross-examination. After testifying to the birth of the child, the deponent was asked who was its father, and the answer was received under objection. The questions was perhaps liable to the objection that it called for a conclusion, but the answer was without prejudice to the defendant, because it was the unavoidable conclusion from the testimony in detail, subsequently given by the same witness. The objection that the testimony of this witness to the principle fact was not directly corroborated by other evidence goes only to the question of the credit to be given to her testimony. There is no statute requiring corroboration in order to conviction in this case, as in that of rape or seduction (Pen. Code, §§ 283,286), and on the question of credit we have already intimated that we stand by the finding of the court of sessions. The case of Burke v. Burpo, 75 Hun, 568 ; 59 St. Rep. 144 , furnishes no authority for discrediting the testimony of the principal witness in this case. In that case the circumstances were such as, in the opinion of the court to forbid credit to the testimony of the mother of the child. We can only say that, in our opinion, such are not the circumstances of this case. Every such case must stand on its own bottom.

Some evidence, in rebuttal, was given by Dr. Conley and one other witness for the prosecution as to the color of the hair and eyes of the child and its mother. The evidence was objected to, and its reception would probably have been error but for the fact that the evidence was given in answer to testimony on the same subject which was first given by the defendant and one of his witnessess. The same must be said in respect to some evidence given by the prosecution, in rebuttal, as to the manner and bearing of the mother of the child in her casual intercourse with men. The admission of this evidence could not have been justified but for the fact that the defendant had previously introduced the testimony of several witnesses to the effect that in such intercourse she was improperly forward and familar. The evidence was not material, except as it tended to discredit her testimony, and as such it was contradicted by that objected to by the defendant.

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The motion in the court of sessions to dismiss the proceeding on the ground that the magistrates were without jurisdiction to hear' and determine the case was properly denied. There was no specification in the motion of the respect in which jurisdiction was wanting, whereas it is apparent that the magistrates had jurisdiction of the subject matter, and it appears from the record that the defendant was before them in person and by counsel without objecting to their jurisdiction of his person. In his brief for argument of this appeal, counsel specifies as the ground of his objection to the jurisdiction that it does not appear by the record that the defendant, when arrested in another county1 than that in which the warrant was issued, was taken before a magistrate in the county in which he was arrested. Code Cr. Proc. § 844. There seems not to be force in this objection. The record before us does not purport to contain the proceedings leading up to the trial before the magistrates, but only the proceedings on that trial. The record reads, after stating that the appeal to the court of sessions is from an order made by the two magistrates, named : “ The following are the proceedings had before the magistrates from which such appeal was taken.” It is true that the record do6s, in fact, contain what, on their face, purport to be some of the preliminary proceedings, but this was entirely supererogatory, since the statute only required that the magistrates from whose order the is taken shall transmit to the court of sessions the undertaking of the defendant for his appearance in that court, with a certified copy of the order appealed from. Code Civ. Proc. § 863. We are of the opinion that, in the absence of any objection before, the magistrates, it will be presumed, for the purposes of the appeal to the court of sessions, that the preliminary proceedings necessary to give -the magistrates jurisdiction of the person of the defendant had been taken. We find no exception taken on the trial which must not be disregarded under the provisions of the statute relating to appeals in criminal cases. Code Cr. Proc. § 542.

The judgment should be affirmed, with costs.

All concur.

So ordered.