Majority
p. 74The People vs. Hugh Flinn.
Headnote
When A. is charged with an attempt to eommit a rape upon B. and order to fect^one cumstance lied on is, that A. infected with a vene* The examination of A. cannot be given in diseased state ahown18 fir3tAssault and Battery with . „ intent to convmit Jxape.
Hush Flinn, a young man, about twentjr-five years- • . . of age, was charged with committing an assault and batte* wkk intent io commit a rape, orí the body of Mary Ann on the 28th of July, 1822, between one and two , ■, ,
kept a grocery store next door to the residence' of Mr., Jameison. . . his little daughter, a most interesting child about ten a§e?' tc> Flinn’s store, for a quart of beer.' The family were about setting do.wn to dinner. Mary Ann returned after an absence of about half an hour. Her father asked her why she staid so long i she made no reply, The circumstance óf this case appeared as follows. Flinn eery store next door to the residence' of Mr.. On Sunda}^ the 28th of July, Mr. Jameison
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no further notice was taken of the circumstance of her kbsence, at this time. On Sunday evening as her mother was putting her to bed, she discovered that her linen was discolored, and stained with blood. The next morning she asked her daughter what was the matter with her. then told her mother what had happened.
She said she went to the store and asked Flinn for a quart of beer, that he went down into the cellar to draw it, and returned to the cellar door, and asked her to give him the pitcher ; she handed it to him, and he seized her by the arm and pulled her down the cellar stairs, and took her into the cellar, where the act complained of was committed ; she all the time crying “ mother !” “ mother 1” “ mother !” In this situation iie kepi her for about half an hour, until he finally told her she might go. Upon these facts being told to her mother, she was so horror struck at the transaction, as to be unable to determine what to do, but finally sent for Flinn to come to her house. He came, and upon being charged with the crime, strenuously denied it, calling Mary Ann “ a great liar ”
Mrs. Jameison was afraid to tell her husband • ?she was apprehensive, he being a man of violent passion, “ he might kill Flinnbut .was induced, from the circumstances that followed this crime, to apply to the .police against Flinn : for it was discovered that, in addition to the injury mentioned, the prisoner had infected Mary Ann with the venereal disease.
She was examined by Drs. Mott and Brown, the latter testified in a subsequent part of the case his opinion, that she had the disease : after a most rigorous and sharp cross-examination by Authon, one of the prisoner’s counsel, he came to the conclusion that it was his decided opinion, that it was gonorrhoea.
p. 76rested the prosecution. opened the defence. They called He testified that he lives in the Bowery, and is a baker—saw the prisoner on the 28th of July at his house, between one and two o’clock, and again at "Vespers in the afternoon. Question by Maxwell. Do you recollect what"kind of dress he had on 1 Ans." No. <Q. Had he a white vest on? A. I can’t tell
Process was taken out of the police against Flinn, upon which he was arrested and committed to Bridewell. Dr. Walker, the attending physician at that institution, went t0 esamine him. and upon telling him the necessity of an to free himself from the imputation, he told Dr. Walker that he was willing to submit to the strictest inquiry, before all the physicians in the city : that he had no disorder whatever. Dr. Walker told him he was a physician,""and had come to examine him ; he then stated to Dr. Walker that he would not be examined,-and threatened force to protect himself.
Mr. Hedden, and two or three officers of the Bridewell, went with the Doctor the same day, and compelled Flinn to submit. Upon the examinations being effected, it was found that his linen was discolored, and evident and conclusive marks of disease appeared.
These facts were fully made out by Mrs. Jameison, her daughter, and the medical gentlemen who were called upon as witnesses.-
Maxwell, District Attorney, and Price,
D.-Graham $nd Ánthon; counsel for the prisoner,
John O. Hare on the part of the prisoner.
p. 77What makes you recollect the hour 7 A. It was "after church. By the Recorder. Are you related to the prisoner 7 A. Yes, I married hi§ sister. John Monahan was called and sworn. He testified that he was sitting at dinner, between one and two o’clock, on the 28th of July, and that the prisoner came into his house and remained there until near 2 o’clock, when he went away, saying he was going to Vespers. He further testi - fi.ed that the prisoner was regular at church every Sunday, and was a man of "good character. Upon being cross-examined by Maxwell, he said he recollected the day by referring back, after he had heard of the charge : he was certain as to the hour, because he always dines on Sunday between one and two o’clock. (Questions by Maxwell. Do you recollect what kind of dress the prisoner wore 7 A. No. Q,. Where do 3'ou live 7 A. No 69 Pike-street. Q. How far from your house is it to the church 7 A. About three minutes’ walk. What colored pantaloons did the prisoner wear 7 A. Can’t tell. Q,. What colored vest 7 A. I dont know. GL. Why do you remember so well the day and hour he was at your house, and forget his dress 7 A. I cannot tell. ©.. Have you been at r Sinn’s store since the charge 7 A. Yes. GL Have you been there often since the charge 7
p. 78Q.. Have you an account with him ? A. I deal at his store. Q-. Are you in debt to him ? A. I cannot tell; there is an account between us : perhaps I am. Q.. Have you any fact or circumstance to fix the day of the month ? A. No. Q,. How do you ascertain it ? A.. When I heard the charge I referred back to the day. Mr. Monahan you are certain of the hour and the day, although it happened in July, yet you have no recollection what kind of clothes he wóre, or any other circumstance but the fact of his being at your house at the day and hour' you mention. How do you account for your recollection of this circumstance, not calculated to make an impression upon the mind, and a total forgetfulness of all others. A. I do hot recollect what dress he had on. Q. You have a had memory then, Mr. Monahan ? A. Of some things I have. William M' Kinney was next called,sworn, and examined on the part of' the prisoner, and testified that he was fourteen years of age, and lived at No. 50 Banker street: that he had been living with Mr. Flinn for some length of time, attending his store, and was there on the 28th of July, when Mary Ann came for the beer, and that Flinn was not there at the tima He said he had been to church and i had returned. He further testified that Mary Ann did not pay for the beer, and that he charged it to her father—he made the entry in the store book himself—that Mary Ann was in the store in the evening of the 28th, in company with him, making soda water—that she again called on
p. 79Monday and purchased some articles out of the store, for which her father was credited. He was explicit in stating that Flinn was not. there between one and two o’clock, and that Mary Ann was rude upon several occasions to Flinn. He was warmly cross-examined by Maxwell, but ted so little, if .any, from his examination in chief, that it is deemed unnecessary to insert it. Frances Gallagky was next called: she testified that She stopped in the prosecutor’s house, and that in a conversation with her, she used the words, c: O ! the d—d rascal : I will be revenged upon him ; I will put him in the State Prison and further, that she would “ spend the last, shilling and that the prosecutor swore a great deal. " She further testified that she washed for Flinn, and that no marks of disease 'was ever seen by her, on his linen. Mrs, Palmer, a respectable woman, was called, who testified that she was present when the alleged conversation was said to have taken place between Frances Gallaghy and Mrs. Jameison, and that the prosecutor used no such inflamatory language as that sworn to by the witness : that she was present all the time of the conversation, and that the prosecutor is not accustomed to use the words mentioned. Maxwell now offered to prove that the prisoner had been examined, ' and also the issue of that examination, and offered Dr. Walker as a witness to prove it. Anthon, objected, he contended that it was first necessary to prove the fact that the girl was diseased, which had not yet been done. Suppose it was proved the prisoner had the disease, what does it amount to, if Mary-Ann was free from it ? it amounts to nothing, unless you suppose the girl infected by him. The contrary would be building presumption upon presumprion j it was beginning at the wrong
p. 80end-; prove the child diseased, and the evidence now offere¿ wjq pr0per- Maxwell replied that it was immaterial to him.
The ^ourt observed that to examine as to the state of the person, would prove nothing of itself; in order to make it evidence in this case, the examination should be made in reference to the act committed on the 28th of July, and how could that bo done without showing the situation of the person of Mary Ann, at and subsequent to that time; the contrary would be supposing her diseased, and that the prisoner infected her, which would clearly be building a presumption upon a presumption.
Dr. Brotan was then called to show the situation of the girl ; he testified that he was called on the 15th of August to examine her, and that he found her laboring under the . disease before mentioned ; he was inclined to the opinion, and finally gave it as his decided opinion, that the disease was gonorrhoea. .
Dr. Walker was now called, who proved the facts relating, to the examination of the prisoner in Bridewell, before stated.
In order to rebut this testimony, Dr. Mott was called for the prisoner. He testified that he was called upon to ex-aminp Mary Ann, and that from all the circumstances, he was uncertain whether it was the venereal or not, that it was impossible to tell at that age, and under the circumstances of this case. He further testified that he was called upon by the prisoner, two days after the examination made in Bridewell by Dr. Walker, and requested an examination of his person ; no marks of disease whatever could be found upon him.
Dr. Walker was again called, who proved that by using proper remedies, the most skillful physician might be de-.
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ceived by his patient: the disease might be so far removed as not to be visible, in two days—in two hours—by the administration of proper medicine : Dr. Mott concurred with ’
The prisoners counsel called a great number of nesses, who proved that he was a steady young man ; was affable in his deportment, and regular in his attendance at public worship ; and that he was a young man of good character ; and here rested the case.
The case was eloquently summed up by D. Graham and Anthon for the prisoner ; and Price on the part of the people. »
The case was then given to the jury in a comprehensive charge, in which the principal facts were recapitulated, and the law in relation to them explained by his Honor the Recorder.
The jury retired, and in a short time returned with a verdict of guilty against the prisoner.