The People of the State of New York, Respondent, v. David H. Crowley, Appellant

The People of the State of New York, Respondent, v. David H. Crowley, Appellant. In order to establish, the crime of rape under the statute (Penal Code, §§ 278, 280), it is sufficient to prove penetration of the private parts of the man into the person of the woman ‘' against her will or without her consent; ” no inquiry is necessary as to the extent of the penetration, or the particular part of the female internal organs reached. Bach of two persons called as jurors upon a criminal trial testified that he had formed an opinion as to to the guilt or innocence of the defendant from reading a newspaper account of the occurrence; one testified that such opinion would not influence his verdict, but that the evidence alone would determine it; the other testified that he could give a fair, impartial and conscientious verdict upon the evidence, "should be governed by it entirely.” Held, the testimony justified the conclusion of the court that neither entertained a present opinion which would influence his verdict, and that a challenge for bias was property overruled. Upon the trial of an indictment for rape, the prisoner testified in his own behalf; the court charged that “while his evidence is to be considered as that of any other witness, they should in determining his credibility, consider the fact that he stood charged with the commission of a serious criminal offense.” Held no error. (Argued March 25, 1886 ; decided April 13, 1886.) Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 8,1886, which affirmed a judgment of the Court of General Sessions in and for the city and county of New York, entered upon a verdict convicting the defendant of the crime of rape. The material facts are stated in the opinion. George Bliss for appellant. The jurors George S. Squire and Bernard A. Schmidt having each formed opinions which they severally swore would require evidence to remove, were disqualified as jurors, and the court erred in overruling the challenge of each for actual bias. (Code of Crim. Pro., § 376; chap. 475 of Laws of 1872, § 1; People v. Casey, 96 N. Y. 115, 119, 122; Greenfield v. People, 74 id. 277, 281, 287; Balbo v. People, 80 id. 484; Cox v. People, id. 500; People v. Cornetti, 92 id. 185 ; People v. Mather, 4 Wend. 229, 244; People v. Tyrrell, N. Y. Week. Dig. 493.) “ Sexual penetration ” can mean nothing but the piercing into the distinctive organ of sex. (Commissioners on Revision [ed. of 1865], '§ 321; Penal Code, § 280; 2 R. S. 735.) There was in the case at bar no proof of “sexual penetration” of a rape accomplished, at most there was only proof of an attempt. (Guy’s Principles of Forensic Medicine [1st Am. ed.], with notes by Lee, 65; Regina v. McRue, 8 C. &, P. 641; Roscoe’s Crim. Ev. [10th ed.] 902; Beck’s Med. Jur. 53.) JDelcmeey Nieoll for respondent. The challenge for actual bias of the jurors George S. Squire and Bernard A. Schmidt, respectively, were properly overruled by the court. (People v. Casey, 2 N. Y. 197.) The penetration necessary to complete the crime of rape, as required by section 280 of the- Penal Code, was fully and clearly established. (1 Hale’s P. C. 628; Hex v. Jennings, 8 C. & P. 249; Reg. v. Allen, 9 id. 31; Reg. v. Jordan, id. 118; Reg. v. Hughes,id. 752; Reg. v. Stanton,1 C. & K. 415.) In the United States proof of the slightest penetration without emission has always been regarded as sufficient. (1 Hale’s P. C. 628 and note; State v. Hargrave, 65 N. C. 466; Waller v. State, 40 Ala. 342; 1 Thom. Vir. Cas. 307; Addis. [Penn.] 143; 1 Swin. Jud. Reg. 98 ; Taylor’s Med. Jur. [7th Am. ed.] 701; Ogston’s Lect. Med. Jur. 90 ; Beck’s Med. Jur. 229, 233.) The essence of the crime is not the begetting of a child, nor the physical injury inflicted, but the" violence done to the feelings and person of the sufferer and to her sense of honor and virtue. (3 Greenl. Ev., § 209; 1 "Whart. Crim. Law, 555; 1 Barb. Crim. L. [3d ed.] 77; Addis. [Penn.] 143; 1 Swin. Jud. Reg. 98.) Ho form of words is necessary to prove penetration, the proof, therefore, can be inferred from. circumstances apart from the statement of the party injured. (Whart. Crim. L., § 555.) When the instructions of the court are unexceptionable as to the offense charged, and for which the prisoner is on trial, and such instructions cover every element of the crime, and correct rules for the proper application of the evidence, it is not strictly the right of the prisoner to ask instructions upon a hypothetical case based upon other facts. (Slatterly v. People, 58 N. Y. 357; People v. Rogers, 13 Abb. [N. S.] 370.) Where a court properly submits to a jury a proposition covering the whole issue, and instructs them that they must find it beyond a reasonable doubt, he cannot be required to subdivide it and charge separately as to each of the elements necessary to constitute the crime that it must be established beyond a reasonable doubt. [MAJORITY — Dahfobth, J.] Dahfobth, J. The appellant was convicted of the crime of rape, at the Oourt of General Sessions of the Peace, in and for the city and county of Hew York; the judgment following that conviction has been affirmed by the General Term of the Supreme Oourt, and we find no reason to differ from the conclusion there reached : That the accused provided the opportunity and formed the intention to commit the crime, was upon the evidence too plain to admit of doubt, and whether he in fact completed it within the meaning of the statute (Penal Code, §§ 278, 280), was a question for the jury and was properly submitted to their consideration. If the complainant’s statement was credible, there was “ sexual penetration,” and the physician by whom she was examined found injuries upon her person which such an act might have occasioned. There was, therefore, positive proof of the highest character and corroboration of the witness. Indeed the argument of the appellant concedes this. The contention of his counsel only leads to an inquiry as to the extent of the penetration, and the particular part of the female internal organs which must be reached to constitute the offense. The statute (§§ 278 and 280, supra) answers the argument. By the first (§ 278) “ Bape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will or without her consent,” and by the other (§ 280), “any sexual penetration, however slight, is sufficient to complete the crime.” This means nothing more than penetration of the private parts of the man into the person of the woman, and no discussion is necessary or proper as to how far they entered. (Rex v. Allen, 9 C. & P. 31 ; Rex v. Hughes, id. 752.) Nor were the persons objected to disqualified to sit as jurors. Each from reading a newspaper account of the alleged transaction, had formed an opinion as to the guilt or innocence of the defendant, but one (Squire) declared on oath that such opinion would not influence his verdict, and that the evidence alone would determine it. The other (Schmidt) said he could give a fair, impartial and conscientious verdict upon the evidence, if impaneled as a juror, and “ he should be governed by it entirely,” notwithstanding the opinion before formed; and in regard to both, the trial court was satisfied that neither entertained any present opinions which would influence his verdict. The examination of the proposed jurors justified that determination, and the challenge for bias was properly overruled (Code of Criminal Procdure, § 376.) The accused testified in his own behalf, and it was not improper for the trial judge to charge the jury that “while his evidence is to be considered as that of any other witness, they should, in determining his credibility, consider the fact that he stood charged with the commission of a serious criminal offense.” The credibility of any witness may be affected by his interest in the result of an issue, or his relation to the case on trial, and a court does not exceed its duty when it reminds a jury of such a circumstance, leaving its weight for their consideration. It is also urged by the appellant that the complainant was not corroborated. The question does not appear to have been raised at the trial, nor any objection made that the evidence was insufficient for submission to the jury. Clearly it was sufficient. Every step that led up to the offense was proven by the prisoner, or by persons other than those concerned ; the condition of the complainant’s person after the alleged commission of the crime has been referred to, and her conduct and that of the prisoner when they were separated, with other circumstances in evidence, fully sustain the statement of the learned judge upon whose opinion the conviction was affirmed, “that it rarely happens that a prosecution for rape is so abundantly sustained in all its essential features as this was.” The record discloses no error, and we think the judgment appealed from should be affirmed. All concur. Judgment affirmed.