
    The People of the State of New York, Appellant v. John E. O’Sullivan, Respondent.
    Upon the trial of an indictment for rape it is proper to prove by the complainant, after she has testified to the commission of the offense charged, a prior unsuccessful attempt upon her, by the defendant, to commit the same crime.
    The testimony of the complainant on such a trial was to the effect that the offense was committed upon her by defendant, a Catholic priest, in his house, where she was employed as a servant, on May 6, 1884; that she remained in his service until August twentieth thereafter without disclosing the facts in any manner to any one, although she had full and free communication with her friends. She left defendant’s employ not on account of the offense, but because the defendant whipped her for some fault. She went home to her foster-parents and remained with them until September tenth, and then went to work in a situation procured for her, at her request, by defendant, and while living there on March 28,1885, disclosed for the first time the offense, to a Catholic priest at confession Testimony as to the disclosure was received under objection and exception. The only excuse for the delay m making the disclosure given by the complainant was that after the assault upon her she voluntarily went to the defendant’s confessional, while living with him, on several occasions, and confessed to him, and on each occasion he asked her if she had told any one, and on her answering m the negative, he said “ God bless you, my child.” Also, that while she lived with him he told her it was a sin to " tell on a priest,-’ and if she did, she would go to hell or purgatory ; that she did not go to confessional afterward until the time when she made the dis closure Held, that testimony as to the disclosure so long after the offense was improperly received
    A disclosure in a case of rape has no value whatever, unless it is the natural result of the horror and sense of wrong which would prompt any virtuous female to make an outcry at the first suitable opportunity.
    (Argued February 2, 1886;
    decided March 1, 1887.)
    Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made November 9, 1886, which reversed a judgment of the Court of Oyer and Terminer ia and for the county of Onondaga, entered upon a verdict convicting the defendant of the crime of rape.
    The material facts are stated in the opinion.
    
      Ceylon H. Lewis for appellant.
    The court did not err in allowing the people to give evidence, under defendant’s objection, of an assault by defendant, and his attempt to commit a like offense on the person of the prosecutrix, four days prior to the offense charged. (Wharton’s Crim. Ev. 35, 46, 49; State v. Knapp, 45 N. H. 156; Strang v. People, 24 Mich. 6; Sharp v. State, 15 Tex. App. 171; Reg. v. Rearden, 4 F. & F. 76; Reg. v. Jones, 4 L. R. 154; Rex v. Chambers, 3 Cox Cr. C. 92; Williams v. State, 8 Hump. 585; State v. Walters, 45 Ia. 389; People v. Dohring, 59 N. Y. 382; 2 Bishop’s Crim. L. [7th ed.] 1122,1125; Conkey v. People, 1 Abb. App. Dec. 420; People v. Jennes, 5 Mich. 316; Com’rs v. Nichols, 114 Mass. 285; Com’rs v. Lahey, 14 Gray, 92; Com’rs v. Merriam, 14 Pick. 518; State v. Marvin, 35 N. H. 22; State v. Wallace, 9 id. 513; State v. Way, 5 Neb. 287; Lawson v. State, 20 Ala. 65.) Evidence was properly received of the fact, that on the 28th day of March, 1885, the injured girl made a disclosure of the injury. (Baccio v. People, 41 N. Y. 269; People v. Clemons, 3 N. Y. Crim. R. 571; Mallett v. People, 3 Hawley, 379; Wharton’s Crim. Ev. 273; 3 Greenlf. on Ev. 213; 1 Hale’s P. C. 633; 4 Blackst. Com. 214; 3 Chitty’s Crim. L. 812; Higgins v. People, 58 N. Y. 379; State v. Byrne, 47 Conn. 466; State v. De Wolf, 8 id. 99; Maillet v. People, 3 Hawley, 382.)
    
      John C. Hunt for respondent.
    The court erred in receiving evidence from the prosecutrix of an actual assault with intent to ravish, committed by the defendant four days prior to the occurrence on trial. (People v. Corbin, 56 N. Y. 363, 365; People v. Kennedy, 32 id. 141, 144; Copperman v. People, 56 id. 591; People v. Brown, 72 id. 574; People v. Crapo, 76 id. 291; Cancross v. People, 17 Week. Dig. 383, 385.) It was error to allow the prosecutrix to state, under defendant’s objection and exception, that she told of the transaction March 28, 1885, more than ten months after its alleged occurrence, to a Catholic priest in Syracuse. (Baccio v. People, 41 N. Y. 265, 269, 270, 271.)
   Earl, J.

The defendant was convicted in the Onondaga Oyer and Terminer of the crime of rape, committed upon Abbie O’Connor, on the 6th day of May, 1884. He was a Eoman Catholic priest, in charge of a church at Camillus, in Onondaga county. The complainant was a domestic working for him in the parsonage, which adjoined the churchy/She testified that she was, at the time of the alleged crime, about seventeen years old; but there was other evidence, apparently more reliable, that she was about twenty. Before she went to five with him, she resided with her foster parents, who brought her up from infancy, and she and they were members of and regular attendants at his church. She went into his service on the twenty-fifth day of .January, 1884, and from that time forward, his family consisted of himself, Mrs. Doehner, his housekeeper, Timothy O’Sullivan, his man servant, and the complainant.

/She testified that the defendant entered her bedroom in the night-time, and there outraged her. At that time, the housekeeper was in Hew York, and she was alone in the house with him and the man servant. Ho criminal complaint was made against him until Hovember, 1885, and he was not indicted until January, 1886.

Hpon the trial, after the complainant had testified to the rape, she was permitted, against the defendant’s objection, to testify that four days previously he made an attempt to ravish her, that she resisted him, and that he failed. For the reception of this evidence, the court at General Term, as appears by the opinion there pronounced and concurred in by a majority of the judges, reversed the conviction, holding that it was incompetent upon the trial of the defendant for the crime alleged to prove any other crime committed or attempted by him. We do not agree with the learned General Term in the view thus taken of this evidence. It is quite true that it is a general rule of law that upon the trial of a prisoner for one offense it is improper to prove that he has been guilty of other offenses ; as where a prisoner is put upon trial for larceny, or burglary, or murder, it is incompetent to prove that he has been guilty of other larcenies or burglaries or murders, or other crimes. In this case, it .would have been incompetent to prove that the defendant had committed or attempted to commit a rape upon any other woman. But where a prisoner is tried for a particular crime, it is always competent to show, upon the question of his guilt, that he had made an attempt at some prior time, not too distant, to commit the same offense. Upon the trial of a prisoner for murder it is competent to show that he had made previous threats or attempts to kill his victim. (People v. Jones, 99 N. Y. 667.) Upon the same principle it must always be competent to show that one charged with rape had previously declared his intention to commit the offense, or had previously made an unsuccessful attempt to do so. In this case if witnesses, other than the complainant, could have been called, who witnessed the unsuccessful attempt of the defendant to ravish the complainant four days before the crime was in fact accomplished, no one would have questioned the competency of their evidence. And the evidence is not rendered incompetent because it comes from the complainant herself. It is not as valuable, or trustworthy, or important, as if it had come from other witnesses. It probably did not have a very important bearing with the jury, because, unless they believed her evidence as to the principal offense they would not believe her evidence as to the prior attempt. But it may have had some tendency to corroborate her story, as to the principal offense, and thus may have- had some weight with the jury. But whether it was important or not there is no rule which condemns it, and there is abundant authority to justify its reception. (Wharton’s Crim. Ev. 35, 46, 49; State v. Knapp, 45 N. H. 148, 156; Strang v. People, 24 Mich. 16; Sharp v. The State, 15 Tex. App. 171; Regina v. Rearden, 4 F. & F. 76; Regina v. Jones, 4 Law Hep. 154; Rex v. Chambers, 3 Cox Cr. C. 92; Williams v. The State, 8 Humph. 585; State v. Walters, 45 Iowa, 389; Com'rs v. Nichols, 114 Mass. 285; Com’rs v. Lahey, 14 Gray, 92; Com’rs v. Merriam, 14 Pick. 518; State v. Marvin, 35 N. H. 22; State v. Wallace, 9 id. 515; State v. Way, 5 Neb. 287; Lawson v. The State, 20 Ala. 65.)

We do not agree, therefore, that the judgment should have been reversed on account of the reception of the evidence alluded to. But there is at least one other error disclosed by the record for which, we think, the conviction ought to have been reversed.

As before stated, the alleged rape was committed in defendant’s house, on the 6th day of May, 1884. The complainant remained in his service from that time until the twentieth day of August following, without, in any manner, by speech, action or appearance, disclosing or intimating to any one that she had suffered this great wrong. During that time she visited her foster parents, whose place of residence was not far distant from Camillus, and saw them nearly every Sunday at church and at defendant’s house, having full and free communication with them in defendant’s absence. When she left the service of the defendant it was apparently not on account of the crime that had been committed upon her, but because he whipped her for some trifling offense. Then she went home to live with her foster parents, and remained there until the tenth day of September, and then she went to Syracuse to work in a situation procured for her, at her request, by the defendant; and while living there, on the twenty-eighth day of March, she disclosed to Father Moriarty, a Homan Catholic priest, at confessional, that the assault had been committed upon her; and that was the first disclosure of the crime made by her to any person. Her testimony, as to this disclosure, was objected to and received under objection and exception. During all the time, from the sixth of May to the twenty-eighth of March, nearly eleven months, there was not a day when she could not have made a disclosure to some one. She was at perfect liberty to leave the defendant’s house at any time, and she • remained there of her own free will and consent. The only excuse put forth for the great delay in making the disclosure is based upon the following facts: She testified that after the assault upon her she went voluntarily, and without any solicitation of the defendant, to his confessional and confessed to him, while living with him, on three different occasions; and that on each occasion he asked her whether she had told anything about the assault upon her, and she replied, “ no, father,” and he said, “ God bless you, my child.” She also testified that while she lived with him he told her it was a sin to “tell on a priest,” and that if she ever “ told on a priest ” she would go to hell or purgatory. She further testified that she did not go to confessional again until the 28th day of March, 1885, when she made the disclosure to Father Moriarty, and that she told him about it the first time she went to his confessional.

It may well be that the fact that this disclosure was made at the confessional under the sanction of religion, gave it additional weight with the jury. But we are of opinion that such a disclosure made nearly eleven months after the commission of the alleged assault ‘was too remote to be received in evidence. There was nothing whatever to justify the delay.

It is a general rule that the evidence of a witness can never be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath. Such statements, like all hearsay evidence, are excluded as unsatisfactory and incompetent. But there is an exception to the rule in the case of rape. The outrage in such a case upon a virtuous female is so great that there is a natural presumption that at the first suitable opportunity she would make disclosure of it; and she would be so far discredited if she did not make the disclosure, for the purpose of confirming her evidence where she is a witness, such disclosure may be received. But where the disclosure is not recent, as soon as suitable opportunity is furnished, the reason for .receiving it in evidence does not exist, and the principle justifying its reception does not apply. In 1 Hale’s Pleas of the Crown, 632, it is said that the “ complainant must make fresh discovery and pursuit of the offense and offender, otherwise it carries a presumption that her suit is but malicious and feigned.” In 1 East’s Pleas of the Crown, 445, it is said that the evidence of the complainant “is confirmed if she presently discovered the offense and made pursuit for the offender; and that “ her evidence is discredited if she concealed the injury for any considerable time after she had opportunity to complain,” and the same language is substantially embodied in 4 Blackstone’s Commentaries, 214. In Baccio v. People (41 N. Y. 265), the defendant was indicted for rape, and upon the trial the prosecution was permitted to give evidence that the complainant disclosed the crime to her mother twenty-four days after its commission, and the conviction in that case was reversed on the ground that the mother of the complainant was permitted to testify in detail on her direct examination to the statements made to her by the complainant of the time and manner of the offense. Judge Woodbufe, writing the opinion, said: “ I was at first inclined to say that evidence of any complaint made so long after the alleged injury, and especially when forced from the daughter by the mother after her daughter had once declared that her injury was due to a fall, should not have been received at all from any person. The complaint was certainly not made recently after the alleged outrage. But in a case in which the fact of complaint is admissible, it is perhaps competent to explain the want of such early complaint by facts which show that it was impracticable, or that it was prevented by circumstances consistent with the natural impulse to complain thereof, so far at least as to destroy the presumption of falsehood derivable from concealment on the part of the female.” In the course of his opinion the same learned judge said, that the rule admitting such declarations in cases of rape is an exception to the general rule excluding declarations made out of court, by a person who has been or might be examined as a witness, and is properly confined within narrow limits; and he suggested that the reason for the admission of such declarations is, “ that it is so natural as to be almost inevitable, that a female upon whom the crime has been committed, will make immediate complaint thereof to her mother, or other confidential friend; and, inasmuch as her failure to do so would be strong evidence that her affirmation on the subject, when examined as a witness, was false, that the prosecution may anticipate such a claim by affirmative proof that complaint was made.”

In Higgins v. People (58 N. Y. 377), the defendant was indicted for rape. In that ease it appeared that 'the prosecutrix arrived in New York, an entire stranger, and having lost her baggage, she was inveigled into a basement on a pretense of finding it, where she was outraged. Upon coming out into the street she met a woman who asked her what was the matter, also a policeman who took her to the station house. To neither of these did she state the real offense; but it appeared that as soon after arriving at the station house as her excitement would admit, she stated the. fact to the police captain. Upon these facts defendant’s counsel requested the court to charge that, “if the jury believe the prosecuting witness did not make prompt disclosure of the alleged wrong, it is a circumstance against her, casting a great discredit on her testimony and tends strongly to disprove the truth of the accusation.” This the court refused to charge, and it was held, that, conceding the proposition to be entirely accurate, it was an abstract one, as there was no ground for saying that the disclosure was not sufficiently prompt, and it was not error, therefore, to refuse so to charge. Church, Ch. J., writing the opinion, said: “ The proposition which the court was requested to charge was substantially correct, although it is quite general and somewhat vague. Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape, is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is, and can be, no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. Such is the natural impulse of an honest female.”

In Connecticut a more liberal rule as to disclosures made by a prosecutrix has been adopted than prevails in this State. (State v. De Wolf, 8 Conn. 93; State v. Byrne, 47 id. 465.)

There it may be proved, not only that she made disclosures of the crime, but the details of the crime as she disclosed them may also be proved. In the two cases cited, the disclosures were made after a much longer time than in any other case which has come to our attention. In the first case the complainant was deaf and dumb, and the disclosure was made more than a year after the commission of the crime. But there she was prevented from making the disclosure by the threats and influence of the prisoner over her, and it was held, that her mental and physical condition were such as to furnish her an excuse for not making an earlier disclosure. In the other case the complainant did not make the disclosure until more than a year and a half after the commission of the crime. But she was only twelve years old, and the defendant was her step-father, and she was living in his family, and he threatened to take her life if she told her mother or anybody else what had happened. Under such circumstances it was held to be for the jury, in weighing her evidence, to determine what effect should be given to her failure to make an earlier disclosure.

It will be seen from these authorities that the very reason upon which the rule is based for the reception of such evidence, requires that the disclosure should be recent and made at the first suitable opportunity. But there may be circumstances which will excuse delay, as when the jirosecutrix is under the physical control of the defendant, when she is among strangers and there is no one in whom she can confide, when she is induced to silence by threats, and is so far within the power or reach of the defendant that the threats may be executed. In such and other like cases delay may be excused, and the disclosure may be proved, and all the facts submitted to the jury for them to determine what weight shall be given to the disclosure, and what effect the delay shall have. But here there was absolutely nothing to justify the great delay. There was no time after the commission of the offense when she could not have left the defendant’s house. She was of mature age and near her friends and saw them frequently. She was in Syracuse, having access to priests months before she made the disclosure. It does not appear from her evidence that she delayed the disclosure from fear of the defendant, or from any influence of superstition, or from the appre hension of consequences to herself in this life or in the life to come.

We think the delay, under such circumstances, was so great and so unjustifiable that as matter of law the disclosure should have been excluded as evidence, and that it was therefore error to receive it. If this disclosure was competent, then no disclosure, however distant from the timq of the offense, could be excluded; and all such disclosures would have to be received and submitted to the jurors for such damaging effect as they would allow them to have. A disclosure at such a distant time is of no more value in a case of" rape than it would be in a case of robbery, attempted murder, or any other crime. A disclosure in a case of rape has no legal value whatever unless it is the natural result of the horror and sense of wrong which would prompt every virtuous female to make outcry at the first suitable opportunity.

Our attention has also been called to error in the charge of the learned trial judge. We have carefully considered the charge and are constrained to believe that it was in part erroneous. But, as we have reached the conclusion that for the error to which we have given particular attention the convictian was properly reversed, it is unnecessary to further notice the charge, as the error complained of is not likely to he repeated upon the new trial, if one should be had.

We, therefore, conclude that the order of the General Term should he affirmed.

All concur.

Order affirmed.  