The People of the State of New York, Respondent, v. Charles E. Kearney, Appellant

The People of the State of New York, Respondent, v. Charles E. Kearney, Appellant. Upon the trial of an indictment for. seduction, under promise of marriage, the testimony of the prosecutrix was to the efEect that the crime was committed in July, and that defendant thereafter had frequent intercourse with her- until December. The prosecution was permitted to show, under objection and exception, that the prosecutrix had a child in August of the next year. Held, error; that the evidence did not tend to corroborate the testimony of the female as to the commission of the crime charged, as it did not tend to show illicit intercourse thirteen months before the birth of the child. People v. Armstrong (70 N. Y. 38) distinguished. It seems that on such atrial corroboration of the testimony of the female as to her previous chastity, or that she was unmarried, is not required. People v. Kearney (47 Hun, 139) reversed. (Argued June 15, 1888; decided June 29, 1888.) Appeal from judgment of the General Term of the Supreme •Court, in the fourth judicial department, entered upon an order made January 10, 1888, which, affirmed a judgment of the Court of Oyer and Terminer in and for the county of Onondaga, entered upon a verdict convicting the defendant of the crime of seduction under promise of marriage. (Reported below, 41 Hun, 129.) The material facts are stated in the opinion. W. P. Goodelle for appellant. The evidence of the subject of the crime, the prosecutrix, must be supported by other evidence as to all of the elements which are necessary to contribute to the crime, before the jury can convict. If the corroborativa evidence supports one or more, and yet fails to support all the necessary elements, such support is not given as the law requires to allow or sustain a conviction. (Penal Code § 286; People v. Plath, 100 N. Y. 590, 593, 594; Armstrong v. People, 70 id. 38.) In criminal trials where the fact proved or corroborated is consistent with innocence, it cannot be accepted as any proof of guilt. (People v. Elliott, 8 N. Y. 223 ; State v. Warren, 1 Green Cr. R. 749; People v. Josselyn, 39 Cal. 398; People v. Williams, 29 Hun, 520.) The fact that the prosecutrix became pregnant and was delivered of a child August 19, 1886, which was conceived nine months before, to wit, bTovember 19,1885, is no evidence or corroboration that the defendant had intercourse with her July 4, 1885, and the court correctly charged the jury that the defendant could not be convicted of a seduction committed on the latter day. Subsequent acts of illicit intercourse do not even tend to corroborate the prosecutrix. (People v. Clark, 33 Mich. 112.) As there is no pretense of a promise of marriage prior to July 4, 1885, it cannot be claimed that defendant’s evidence, that he had intercourse with the prosecutrix twice on June 10, 1885, is such supporting evidence as will sustain the conviction; if he, in fact, did have, which she denies, then she was not of chaste character at the time of the alleged seduction under promise of marriage, and the crime could not -have been committed against her. (Safford v. People, 1 Park. Cr. 474; Cook v. People, 2 T. & C. 404; Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 id. 644.) It is not for the jury to determine what thé nature of the supporting evidence shall be, but this the law has determined and must determine. (People v. Plath, 100 N. Y. 590.) Lawrence T. Jones for respondent. The testimony of the female seduced is sufficiently supported by other evidence within the meaning of section 286 of the Penal Code. (Armstrong v. People, 70 N. Y. 38.) Supporting evidence was required as to two matters only, to wit, the promise of marriage and carnal connection. (Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 id. 644.) Corroboration is required as to the promise and intercourse only, and not with respect to chastity or being unmarried. (Kenyon v. People, 26 N. Y. 203; Crandall v. People, 2 Lans. 309.) Circumstantial evidence was always sufficient in supporting an accomplice, corroboration being required only as to the person of the accused; that is, testimony showing that the defendant was the party who committed the crime. (Whart. Crim. Ev. § 442.) In the case of an accomplice, whether evidence is sufficient is for the determination of the jury; the law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evidence of his accomplice. (People v. Everhardt, 104 N. Y. 594; People v. Elliott, 106 id. 292; People v. Jaehne, 103 id. 182; Crandall v. People, 2 Lans. 309; People v. Plath, 100 N. Y. 594.) The supporting •evidence need be such only as the character of the matters admits of being furnished. It was for the jury to say whether the supporting evidence was sufficient. (People v. Armstrong, 70 N. Y. 44; Crandall v. People, 2 Lans. 309; People v. Elliott, 106 N. Y. 288, 292; People v. Everhardt, 104 id. 591-594.) In prosecutions for adultery or for illicit intercourse ■of any class, evidence is admissible of sexual acts between the .same parties prior to or when indicating continuance of illicit relations, even subsequent to the act specifically under trial. (Whart. Crim. Ev. [8th ed.] § 35; Thayer v. Thayer, 101 Mass. 111; State v. Bridgman, 49 Vt. 202; Crandall v. People, 2 Lans. 309-311.) The statute requires only previous chastity. (Penal Code, § 284; Armstrong v. People, 70 N. Y. 44.) yo corroboration is required as to previous chastity or as to the fact of being unmarried. (Armstrong v. People, 70 N. Y. 44, 46; Kenyon v. People, 26 id. 203; Boyce v. People, 55 id. 644; 106 id. 272.) It was right to decline to charge that there was no supporting evidence. Whether or not it was sufficient evidence was a question for the jury. (Crandall v. People, 2 Lans. 309, 311; 70 N. Y. 44, 46.) [MAJORITY — Peckham, J.] Peckham, J. Under the objection and exception of the counsel for defendant, the court permitted the prosecution to prove that in August, 1886, the prosecutrix was delivered of a child at the county house. She had already testified that the promise of marriage had been made in July of the previous year, and the intercourse had taken place immediately thereafter’, and upon the faith of such promise, and had continued frequently until the following December. The materiality of this evidence as to the birth of a child could only have been claimed upon the ground that it tended in some degree to support the evidence of the prosecutrix upon one of the two points upon which such support was necessary, viz., the promise of marriage and the intercourse following upon the faith of it. Authority for the admission of this evidence is claimed to exist in the case of Armstrong v. People, decided by this court and reported in YO New York, 38. In that case the promise of marriage was alleged to have been made in May and the intercourse took place on the faith of such promise in the following August. The trial occurred in March of the next year, and the prosecution proved, by the female seduced, that at the time of such trial she was in the family way. It was held that such evidence was competent to be laid before the jury, as it proved that the woman, being unmarried, had had illicit intercourse with some one, which, under the evidence, must have taken place somewhere about the time she fixed as the time she had the intercourse with the defendant, and hence it must have tended in some degree to support her evidence. That case went to the extreme limit, as it seems to me, in the admission of such evidence. It might be slight, but, in the language of Folger, J., in that case, it was a fact not incompetent to be laid before the jury. In this case, however, another and a most material step is taken. The birth of the child was in August, 1886, and the physician in attendance swore it was a full grown nine-months child, thus showing conception to have taken place as late as November, 1885, while the prosecutrix swore the seduction occurred on the fourth of the previous July. What support is given to the evidence of the prosecutrix that she was seduced under promise of marriage on tíre 4th of July, 1885, by proving that she was delivered of a child thirteen months thereafter, or in August, 1886 ? This fact simply proves that she had illicit intercourse with some one four months subsequent to the time when she swears that she was seduced under promise of marriage by the defendant. In the Armstrong Case the evidence showed that the female had had intercourse with some one at or about the very time she alleged she had it with the defendant. In this case it shows nothing of the kind. It neither shows or tends to show that she had any intercourse with the defendant at the time she swears she was seduced, nor does it show or tend to show that she had such intercourse with anyone at or about that time. It is said that it is a most natural consequence of the seduction that the intercourse should have continued thereafter, as sworn to by the prosecutrix, and until it resulted in her pregnancy. That is very likely true, but it does not advance us a step in the way of proving that the intercourse did commence in July. If it did then commence, it may be admitted that it was very likely to have continued, but is it any, even the slightest proof, that it did then commence, by proving the birth of a child thirteen months thereafter? In other words, is there any support given to the evidence of the prosecutrix as to the seduction by the defendant in July, 1885, by proof of this nature? I think not. How can'it be said to support her evidence ? It does not tend to the support of her story that she had intercourse with the defendant on the 4th of July, 1885, under promise of marriage, because it does not tend to show that she had such intercourse at that time, or about that time, with any man. It is not a case where the prosecutrix may have been deceived or mistaken as to her dates, so that she ought not to be held to the very day or even week on or in which she placed the seduction. This is an affair of months, and there is no claim of any mistake as to date, occasion or place. Tlie crime was committed, if at all, on the 4th of July, 1885. We think it was error to admit this evidence. In Boyce v. People (55 N. Y. 644) it seems to have been assumed that if evidence of this nature had been objected to and admitted under objection and exception, it would have been error. The error was saved because the evidence was not objected to, and the prosecution stated that no reliance was placed on it as being corroborative in any degree of the prosecutrix, and, therefore, the refusal to strike it out was not error as there was no strict right to have it stricken out when it came in without objection. We fully realize the truth of the proposition that evidence in corroboration of the prosecutrix in this class of cases upon the points where corroboration is necessary, viz., the seduction and the promise of marriage, is not very easily obtainable. For that reason only such corroboration as in the natural and ordinary course of events these facts are capable of is to be required. But this rule cannot be construed to allow evidence of a fact which does not in the least tend to support the evidence of the prosecutrix upon either of the two points which require it. That the evidence in this case, of the nature herein commented on, was of a very dangerous and probably highly injurious character and tendency we think admits of no controversy. The crime is a most atrocious one, and one which most naturally tends to enlist the sympathies of all men, and of course of jurors, in favor of the victim. In such cases, while administering the law with perfect fairness, courts must be extremely careful that no evidence of a tendency to excite or influence the resentment of jurors, and which does not tend to support the evidence of the prosecutrix, or to connect the defendant with the commission of the crime, should be permitted to go to the jury. Oases are cited by the counsel for the people where, under indictments for adultery (where that act is made a crime in some of the states) evidence of intercourse between the parties, or even acts of familiarity between them, prior and subsequent to the time when the adulterous act is alleged to have been committed, is competent as tending to prove such act at the time laid. The cases are not at all analogous, and the same principle does not govern. Evidence in this case tending to show that the defendant had had intercourse with the prosecutrix subsequent to the time when she alleged she was seduced might have been admissible upon the principle decided in those cases. Such evidence was given in this case by the female herself, who swore to frequent intercourse up to December, 1885, with the defendant. But the fact that the prosecutrix had a child thirteen months after her alleged seduction by defendant did not show, or tend to show, illicit intercourse with him subsequent to the alleged seduction, which would have to be the case to make it parallel with the cases cited by the counsel for the People. ¡Nor did it, as we have attempted to show, tend to prove that she was seduced in July, 1885, by the defendant. As the case must go back for a new trial, we think it proper to state that, in our judgment, no new principle as to the evidence required in support of an indictment in such a case as this was promulgated by the decision in People v. Plath (100 N. Y. 590), as seems to have been assumed by the t^ounsel for the defendant herein. It was held in that case that the corroboration must be upon all the points which go to make up the crime (in that ease abduction for the purpose of prostitution), and that in that case corroboration was necessary as to the taking as well as to the purpose for which the taking occurred. Hence the defendant’s counsel argues that this decision makes it necessary to corroborate the prosecutrix, not only upon the question of the promise and the seduction, but also upon those of the previous chaste character of the female seduqed and that she was unmarried. This court has held that the offense really consisted in the seduction under a promise of marriage, and that the character and condition of the female simply identified the kind of person whom the statute had in view and whose purpose it was to protect. Supporting evidence never was and is not now required on those points. (Kenyon v. People, 26 N. Y. 203.) The cases are perfectly consistent. But for the reasons already given this judgment should be reversed, and a new trial ordered. All concur except Danfobth and Finch, JJ., dissenting; Huger, Cli. J., not voting. Judgment reversed.