The People of the State of New York, Respondent, v. Samuel Friedman, Appellant

The People of the State of New York, Respondent, v. Samuel Friedman, Appellant. Second Department, July 29, 1910. Crime—rape — intercourse with girl under age of consent — corroboration of complainant necessary — evidence — hearsay — complaint made by victim of crime. Sexual intercourse with a woman below "the statutory age. of consent is rape whether accomplished by force dr not. In a prosecution for rape there can be no conviction on the uncorroborated testimony of the complainant. While the People in a prosecution for rape may show that the victim complained of the occurrence, they cannot, on a direct examination either of the complainant or of the person to whom the complaint was made, prove the details of the complaint. • In a .prosecution for rape it is error to allow the mother of the complainant to testify to details of the crime as stated by the complainant the morning after it was committed. Appeal by the defendant, Samuel Friedman, from a judgment of the County Court of Kings county, rendered against him on the 18tli day of March, 19Ú8. ■ E. P. Seelman, for the appellant. Peter P. Smith, Assistant District Attorney, and John P. Clarke, District Attorney, for the respondent. [MAJORITY — Carr, J.:] Carr, J.: This is an appeal from- a judgment of- the County Court of Kings county, by which the defendant was adjudged guilty of the crime of rape in . the second degree and" sentenced to prison for an indeterminate sentence/ of a. minimum of five years. and six months and a maximum of nine years and six months; The victim of the alleged rape was a, girl of about fifteen . years of age. As she was below the statutory age of consent • (Penal Code, § 278), sexual intercourse • with her constituted the crime.of rape, whether it was accomplished with force or not. It was quite satisfactorily shown tliat .someone .had sexual intercourse with the girl near the time of the commission of the alleged crime. The girl testified that the defendant was. the individual. The statute (Penal Code, § 283), however, provides ■that no conviction for rape can be had- upon the unsupported testimony of the complainant. ' This provision of the statute is derived from the common law, and has been applied for centuries. As has been said frequently, it has its origin in the fact that crimes of this nature are easily charged and very difficult to disprove, in - view of the instinctive horror with which mankind regards them. The. rules qf law and procedure governing the trial of a defendant on a charge of this character have been so long settled that there is little excuse when they are violated. As • some proof tending to support the charge of the complainant, the-People are permitted to prove that the alleged victim of the crime promptly made some outcry at or after the: commission of the crime, or made some complaint as. to its commission. Evidence of this nature being hearsay in its character, the rule which makes it admissible, at the same time, surrounds its reception with well-defined safeguards. While the prosecution may show that the victim made a complaint of the occurrence, it cannot, on. direct examination either of the complainant or of the person to whom the complaint was made, prove the details of the complaint. ■ (Baccio v. People, 41 N. Y. 265.) In the case at bar the prosecution gave evidence on the part of the mother of the complainant, on the next morning after the commission of the' alleged crime; and, over the objection and exception of the defendant, the mother was permitted to testify to the details of the girl’s story as to the manner in which the crime was committed. This manner of proof is precisely what was condemned in Baccio v. People (supra), where the admission of similar evidence led to the reversal of a judgment of conviction.. No matter how great our horror as to the crime of rape, the law must always be kept in mind sharply,- and all the more so because of the strong temptation either to convict or to sustain a conviction. The judgment of conviction of the County Court should- be reversed., and a new trial ordered. Hirschberg, P. J., Woodward, Bure and Rich, JJ., concurred. Judgment of conviction of the County Court of Kings county reversed, and a new trial ordered.