The People of the State of New York, Respondent, v. August Plath, Appellant

The People of the State of New York, Respondent, v. August Plath, Appellant. (Argued November 23, 1885 ; decided December 8, 1885.) To support a conviction under the Penal Code for abduction (§ 282 as amended by § 2, chap. 46, Laws of 1884), it must be proved, both that there was a ‘' taking ” within the meaning of the act, and that such taking was for the purposes of prostitution. The word “taking” implies some persuasive inducement on the part of the accused, not a mere permission or allowance to follow a life of prostitution. A conviction cannot be sustained upon the unsupported evidence of the female alleged to have been abducted, as to' either element constituting the crime, i. e., the taking or the intent. (Penal Code, § 283.) Proof must be given, aside from her testimony, tending to establish the commission of the crime, and that it was perpetrated by the accused. Upon the trial of an indictment for abduction, it appeared that the defendant kept a dance hall or concert saloon in the city of New York. The testimony of K., the female alleged to have been abducted was to the effect that she was about fifteen years of age, of somewhat dissolute character, living with her parents in Newark ; that in company with a young companion, a former inmate of a house of prostitution, she went to New York without the consent of her parents, and in strolling about came to and entered defendant’s saloon ; after sitting in the bar room for a while she asked defendant “ how much it was to see the entertainment.” He answered “ nothing, my little dear! come in,” and asked if they had come to stay, to which K. replied that she had. He then invited them up stairs, took indecent liberties with their persons, and offered K. a dress, which she refused. She remained in the place voluntarily for about a month, leading the life of a prostitute. No evidence was given that defendant knew K.’s true name, her place of residence, or that he had any previous acquaintance with her or her family, their circumstances or condition. Other witnesses testified that they visited the saloon while K. was there ; that there were a number of men and women dancing and drinking, and'among them K.; that they asked defendant if he had a young girl from Newark, by the name of K., but he denied any knowledge of such a girl, and offered to allow them to search the premises. While they were talking K. disappeared. They inspected the upper rooms, the appearances, as described, indicating they were used for purposes of prostitution. A physicial examination of K.’s person showed that attempts at sexual intercourse had been made, but that it had not been accomplished. Meld, that the evidence failed to sustain a conviction. Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 11, 1885, which affirmed a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, convicting the defendant of the crime of abduction. The material facts are stated in the opinion. William, F. Howe for appellant. The prisoner should have been acquitted, as there was no evidence to support the testimony of the female alleged to have been abducted. (Penal Code, § 283; People v. Courtney, 28 Hun, 589 ; Cohmam v. State, 44 Tex. 109 ; State v. Thornton, 26 Iowa, 80; People v. Williams, 29 Hun, 520; Ormsby v. People, 53 N. Y. 474; Kenyon v. People, 26 id. 209 ; Boyce v. People, 55 id. 645 ; Armstrong v. People, 70 id. 38 ; Conroy v. People, 97 id. 71; Home Ins. Co. v. W. T. Co., 61 id. 93; Stapenhorst v. Wolf, 65 id. 596.) There was no taking as contemplated by statute. (Beyer v. People, 86 N. Y. 369; People v. Parshall, 6 Park. 130; Reg. v. Primelt, 1 Fost. & Pin. 50; Regina v. Meadows, 1 Car. & Kir. N. P. 398.) Error was committed in charging: “ It is immaterial for which of these prohibited purposes she was taken. If she was, at the time of the taking, under the age of sixteen years, and was feloniously taken for the purposes of prostitution or of sexual intercourse, the person who does so violates the provisions of the statute, and is guilty of the crime of abduction.” (Penal Code, § 282; Carpenter v. People, 8 Barb. 603 ; People v. Parshall, 6 Park. 129; Murphy v. People, 3 Hun, 114; McKenna v. People, 81 N. Y. 360). De Lancey Nicoll for respondent. The evidence establishes a taking for the purpose of prostitution within the meaning of the statute. No force is necessary to constitute a taking. (Beyer v. People, 86 N. Y. 369; Schurcker v. People, 88 id. 192; Reg. v. Mankelow, 6 Cox’s C. C. 143.) Provided the female is within the statutory age — i. e., sixteen years, it is immaterial whether she consents to the taking or not; and, indeed, even if she herself proposes it, it is still a taking. (Reg. v. Mankelow, 6 Cox’s C. C. 143; Reg. v. Robbins, 1 C. & K. 456; Reg. v. Kipps, 4 Cox’s C. C. 117 ; Reg. v. Biswell, 2 id. 279; Reg. v. Baillie, 8 id. 238; Bish. on Stat. Cr., § 634; Slocum v. People, 90 Ill. 274; Reg. v. Robb, 4 Fost. & Fin. 59 ; Reg. v. Timmins, 8 Cox’s C. C. 401; Reg. v. Olivier, 10 id. 403; People v. Seeley, 3 N. Y. Crim. Rep., No. 3, 225.) There was sufficient corroboration of the testimony of the' female abducted to satisfy section 283 of the Penal Code. (Kenyon v. People, 5 Park. 254; Peoples. Courtney, 28Hun, 592; Armstrong v. People, 70 N. Y. 44; People v. Ryland, 97 id. 132.) [MAJORITY — Ruger, Ch. J.] Ruger, Ch. J. The defendant was indicted and upon trial convicted of the crime of abduction, in that he “ with force and arms feloniously did take one Katie Kavanaugh for the purpose of prostitution, she the said Katie Kavanaugh being then and there a female under the age of sixteen years.” It was essential to the support of this conviction that the people show, not only a taking by the defendant within the meaning of the statute, but also that such taking was for. the purpose of prostitution. (Penal Code, § 282 ; as amended by § 2 chap., 46, Laws of 1884.) If the evidence establishes only a taking and fails to show that it was for the prohibited purpose it is insufficient to sustain the conviction, and so proof of the fact that the person of the female was used for purposes of prostitution without proof of the abduction would not bring the accused within the condemnation of the statute. It is elementary, when a specific intent is required to make an act an offense, that the doing of the act does not raise a presumption that it was done with the specific intent. (Lawson on Presumptive Evidence, 472.) Neither can a conviction under this act be sustained upon the unsupported evidence of the female abducted. (Penal Code, § 283.) In cases where corroboration is required there has been some diversity of opinion in the authorities, as to the particular facts which should be corroborated, and the extent of the corroboration needed in order to comply with the rule; but it is now conceded to be the general rule, that it should tend -to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it. When an offense was formerly proven by accomplices it was the usual practice of trial courts, to advise an acquittal, unless such evidence was in some respects corroborated by other testimony (although at common law a conviction upon the evidence of the accomplice alone was sustainable). In those cases the extent and degree of corroboration rested in the discretion of the trial court, and necessarily varied according to the circumstances of the case. Although such cases are not strictly analogous to those where corroboration is required by statute, they yet furnish some help in determining the degree of proof required in the latter case. The rule as to the corroboration of an accomplice is stated in Eoscoe’s Criminal Evidence, 122, as follows: “ That there should be some fact deposed to, independently altogether of the evidence of the accomplice, which taken by itself leads to the inference not only that a crime has been committed but that the prisoner is implicated in it.” Eussell on Crimes, 962, says: “ That it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some material fact or facts which go to prove that the prisoner was connected with the crime charged.” 1 Greenleaf on Evidence, § 381, lays down the rule as. held by some, that it is “ essentia] that there should be corroborating proof that the prisoner actually participated in the offense, and that when several prisoners are to be tried, confirmation is to be required as to all of them before all can be safely convicted ; the confirmation of the witness as to the commission of the crime being regarded as no confirmation at all as it respects the prisoner.” The policy of the statute under consideration would seem to forbid the conviction of a person of the crime of abduction, upon the unsupported evidence of the subject of the crime, and a conviction founded upon the evidence of the abducted female alone as to one of the elements constituting the crime* would be contrary to its implied prohibition. Such evidence must, therefore, tend to prove each of the facts constituting the crime, for otherwise a person might be convicted of an offense as to one of whose elements there existed no proof except that of the alleged abducted female. If the corroborative evidence goes to the support of the alleged purpose alone it is apparent that there is no legal proof of the commission of a crime, and it would be the same if the corroboration was confined to a support of the taking alone, and the proof as to the purpose was uncorroborated. It is not indispensable that such corroboration should be furnished by positive and direct evidence, but proof of circumstances legitimately tending to show the existence of the material facts will be sufficient to authorize a conviction. In one form or the other, however, proof must be given, aside from-that of the female, tending to establish the commission of a crime, and that it was perpetrated by the person accused before a conviction can be lawfully had. An examination of the proof in this case fails to disclose any evidence corroborating the testimony of the female alleged to have been abducted, as to the participation of the defendant in the abduction, assuming that her evidence established a taking within the meaning of the statute. We have, however, grave doubts as to the sufficiency of such evidence to establish such taking. (Regina v. Olifier, 10 Cox’s C. C. 403.) But passing over that question we will examine the evidence which it is claimed corroborated the testimony of the abducted female. Her evidence was to the effect that in July, 1884, the defendant kept a dance hall or concert saloon and drinking place in Chatham street, New York, and had no previous acquaintance with, or knowledge of the witness, her friends or family; that she was a young girl about fifteen years of age, of somewhat dissolute character, residing with her parents at Newark; 'that some time in the latter part of July in company with a young companion, the former inmate of a house of prostitution, of her own free will, she visited New York without the consent of her parents, and in strolling about the streets came to the defendant’s saloon and entered. After sitting in the bar room for awhile she saw the defendant go behind the bar, and asked him “ how much it was to see the entertainment; ” he 'replied “ nothing my little dear, come in.” He then treated the girls to soda water and asked them if they came to stay, to which Kavanaugh replied that she did. He then invited the girls to go up stairs and while there offered Kavanaugh a dress which she declined. He also took indecent liberties with the persons of both girls, and after remaining there about twenty minutes left them. Both girls voluntarily remained in the place several days, and the Kavanaugh girl for about one month, during which time she had intercourse with a large number of men. Ho evidence was furnished hy the prosecution showing that the defendant knew the true name of the girl or the place of residence of herself or family, or that he had had any previous acquaintance with her or knowledge of her family, or their circumstances or condition. Ho direct proof was given to establish the existence of any fact testified to by Kavanaugh, but she was attempted to be supported by circumstances alone. Two witnesses testified that they visited defendant’s saloon the latter part of August and found quite a number of women and men assembled there engaged in dancing, drinking and sitting around together, among whom was Kavanaugh. They asked defendant if he had there a girl by the name of Kavanaugh who came from Hewark. Defendant denied any knowledge of such a girl, and offered to allow them to search the premises for her. While they were talking Kavanaugh disappeared. It nowhere appeared that defendant was acquainted with the true name of Kavanaugh, or that she came from Hewark. The witnesses also inspected the upper rooms of the saloon and there found a number of small apartments filled with beds and bunks; they" saw women intoxicated and some quarreling and fighting going on. Afterward in September, one of the witnesses saw a man and woman in bed together there, and the man stated that he was not the husband of the woman. A physical examination of the girl revealed appearances indicating that attempts at sexual intercourse with her had been made, but that in fact it never had been accomplished. Beyond this no evidence was given looking toward corroboration of the testimony of the alleged abducted female. We are utterly unable to see how this evidence tends to prove any of the facts going to show the agency of the defendant, in inducing Kavanaugh either to come to or remain in his place, unless a presumption of criminal persuasion is always to be imputed to a person with whom a dissolute female is domiciled. That he kept a disorderly house and was engaged in a vile and. reprehensible occupation is quite sufficiently demonstrated, and that the object of Kavanaugh’s residence in his house was presumably for the purpose of prostitution; but there is nothing in the corroborative proof inconsistent with the theory that her stay there was the result of her own will, uninfluenced by any persuasion, allurement or device of the, defendant. The evidence does not tend to show that the influences inducing Kavanaugh to come or remain at the defendant’s house were any different from those operating upon the other inmates of the place or upon females generally, who had not become inmates. It is a lamentable fact, that a life of prostitution presents attractions to some young and inexperienced females and that many are induced to enter upon it by the expectation of pleasures to be derived, wants to be supplied, or disagreeable social conditions to be escaped, and that from some or all of these causes combined, 'the haunts of vice and immorality are too largely supplied ; but the statute in question was not intended to. provide a remedy for this evil, or prescribe a punishment for those who keep such places. There is nothing in the section of the act under which defendant was convicted making the employment of a female under sixteen years of age for purposes of prostitution or sexual intercourse a criminal offense, except where it is accompanied with a talcing of her person by some active agency for such purpose. The word “ takes ” seems to be used to distinguish the act prohibited, from those where the female is merely received, or permitted and allowed to follow a life of prostitution without persuasive inducement by the person accused. The statutory age under which the consent of the female does not deprive the act of sexual intercourse of its criminal effect is fixed at ten years, but over that age the act in question does not make such intercourse a crime if effected without persuasion or device, by the free will and consent of the female. The same evidence which has been produced against the defendant in this case could doubtless be given as to every keeper of a brothel or disorderly house in Hew York, and it would tend to impair confidence in the administration of the law and confound the distinction in crimes made by statute to permit this conviction to be upheld upon the proof shown by the record. Every criminal, however vile, has a right to require that the elements of his offense shall be clearly defined by law and established by legal proof before he can be convicted thereof, and until then he may safely assert his immunity from punishment for any offense which is not thus defined and proved. The defendant in this case is entitled to the same presumption of innocence which prevails in other cases, and we are constrained to say that evidence has not been given here rebutting such presumption. We think the evidence was insufficient in the absence of the proper confirmatory proof to warrant his conviction, and that the judgment of the General Term and Sessions should be reversed and a new trial granted. All concur. Judgment reversed.