
    The People of the State of New York, Respondent, v. Benjamin Oyola, Appellant.
    Argued April 14, 1959;
    decided July 8, 1959.
    
      Henry B. Rothblatt for appellant. I.
    The infant witness should not have been sworn and it was reversible error to do so. II, Treating her sworn testimony as an unsworn statement, it was not supported by other required evidence, and the motion to dismiss was improperly denied. (People v. Klein, 266 N. Y. 188.) III. On the whole case, the People failed to prove defendant’s guilt beyond a reasonable doubt. (People v. Colantone, 243 N. Y. 134; People v. Conrow, 200 N. Y. 356; People v. Sylvester, 178 App. Div. 923; People v. Slaughter, 278 N. Y. 479; People v. Derner, 288 N. Y. 599; People v. Churgin, 261 N. Y. 661.) IV. The reception of the testimony of defendant’s wife as to alleged admissions made by him to her, over objection and exception of defendant, constituted reversible error. (Poppe v. Poppe, 3 N Y 2d 312; People v. McCormack, 278 App. Div. 191; People v. Daghita, 299 N. Y. 194; Hawkins v. United States, 358 U. S. 74; People v. Marendi, 213 N. Y. 600; People v. Curtis, 217 N. Y. 304.)
    
      Daniel V. Sullivan, District Attorney (Irving Anolik of counsel), for respondent.
    I. Nancy Oyóla was properly sworn as a witness. Her understanding and appreciation of an oath was amply demonstrated by the elaborate voir dire, conducted before an oath was administered. II. The instant appeal presents solely questions of law for review in this court. The People submit that as a matter of law the evidence adduced at trial was sufficient to sustain a conviction. (People v. Lytton, 257 N. Y. 310; People v. Ledwon, 153 N. Y. 10; People v. McCarthy, 250 N. Y. 358; People v. Malkin, 250 N. Y. 185; People v. Pesky, 254 N. Y. 373; People v. Yui Kui Chu, 273 N. Y. 191.) III. The trial court properly permitted defendant’s wife to testify as to certain conversations with her husband occurring after they had been separated and subsequent to Oyóla’s arrest. Moreover, no valid objection was made by defendant to this testimony. (People v. McCormack, 278 App. Div. 191, 303 N. Y. 782; State v. Kollenborn, 304 S. W. 2d 855; Brown v. United States, 256 U. S. 335.)
   Vab" Voobhis, J.

Appellant has been convicted in the New York City Court of Special Sessions of causing the morals of a child under 16 years of age to become depraved in violation of subdivision 1 of section 483 of the Penal Law, and of assault in the third degree in violation of subdivision 1 of section- 244. Both of these misdemeanors are claimed to have been perpetrated on the daughter of appellant and his wife. Matrimonial differences had arisen which culminated in appellant’s removal from the home when his wife had him arrested following the alleged incident on which these criminal charges depend. The evidence against him consists of testimony by Nancy, their 10-year-old daughter, and an admission which his wife testified that he subsequently made to her on the telephone. We are satisfied that this conversation was erroneously admitted into evidence for reasons hereinafter stated.

The police were in the Oyóla home within four hours and Mrs. Oyóla was there within two hours of the earliest possible happening of this alleged sexual assault. The child testified to all the particulars of a completed act of intercourse upon her by her father, soon after she had retired for the night. She said that she had on her nightgown, and that he was clothed. In spite of the early arrival of both mother and the police, no evidence was offered by the People of any examination of the child’s body, nor the finding of any residual evidence of a seminal emission in or about the child’s sex organs, adjacent area nor on any other portion of her body, bedclothes or nightgown nor upon appellant’s clothing or anywhere else. Ho evidence was introduced of any cutaneous, structural or tissue injury or disturbance of this girl’s private parts, such as abrasions, lacerations, discoloration, redness, swelling or the like. Ho circumstantial evidence supports the child’s version of what occurred, all of which appellant has denied. In answer to questions from the Presiding Judge at Special Sessions, Haney said that her mother had rehearsed her story privately with her five times before the daughter told it to anyone else. Appellant had no previous criminal record. His good character was attested by his employer and another witness, and was recognized by Special Sessions when he was sentenced to an indefinite term in the Hew York City Penitentiary. Haney testified that he had done the same thing to her and to her playmate each on one prior occasion, but that this was the first time when she told her mother. This disclosure coincided in time with her mother’s lawyer’s instruction to Haney to remember that she would have to repeat the same testimony in a matrimonial action against her father.

The question is whether this evidence against appellant was sufficient to prove him guilty beyond a reasonable doubt. In People v. Ledwon (153 N. Y. 10) it was held that the burden being upon the People of establishing the guilt of the accused beyond a reasonable doubt, a mere scintilla or even some proof is not enough to create an issue of fact. In the exercise of their judicial function, courts have often held that in certain situations as matter of law the evidence must be more than usually clear and convincing. The degree of proof required may be affected by whether the testimony is contradicted by other evidence, whether it is consistent, credible or contains elements of suspicion. Moreover all evidence is to be weighed according to the proof which it was in the power of the party to have produced, as Lord Mansfield observed (2 Wigmore, Evidence, § 285, p. 163). Upon the record in this case including the omission of any circumstantial evidence lending credibility to the testimony of this child, we have concluded that appellant has not been proved guilty beyond a reasonable doubt.

Our attention has been directed to the circumstance that in the instance of this and certain other sexual offenses no statute specifically requires corroboration of the testimony of the complainant, like the statutes in the cases of abduction (Penal Law, § 71), adultery (id., § 103), compulsory prostitution (id., §§ 1091, 2460), compulsory marriage (id., § 1455), rape (id., §2013), and, until the crime was abolished, seduction under promise of marriage (id., § 2177). It is not altogether clear on what principle the Legislature adopted separate statutes in regard to these crimes. If appellant had been indicted under section 483-a of the Penal Law (carnal abuse of a child) he would have been charged with a felony punishable on conviction by imprisonment for not more than 10 years. That is exactly the same punishment prescribed for rape in the second degree (Penal Law, § 2010), yet in the latter instance there is a statute expressly requiring corroboration of the testimony of the complainant (§ 2013) whereas in case of the former there is no such statute. The absence of legislation requiring other evidence to support the testimony of the complainant extending to every material fact essential to constitute the crime, as in ease of rape (People v. Downs, 236 N. Y. 306; People v. Page, 162 N. Y. 272, 274), does not signify that courts fail to scrutinize with special care the same type of testimony in view of the ease with which crimes of this nature are charged and the difficulty of disproving them, and in view of the instinctive horror with which they are regarded by mankind (People v. Friedman, 139 App. Div. 795; People v. Donohue, 114 App. Div. 830).

Attention is called to the provision in section 392 of the Code of Criminal Procedure that when in criminal proceedings a child under 12 years of age does not in the opinion of the court or magistrate understand the nature of an oath, the unsworn statement of the child may be received “ But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence.” Corroboration would have been required of every material fact essential to constitute the crime if Nancy Oyóla had not been sworn (People v. Meeks, 283 N. Y. 694; People v. Dutton, 305 N. Y. 632). In a series of decisions, however, where the infant complainant was sworn, this court has reversed convictions on charges of this nature and dismissed the indictments or informations as not proved beyond a reasonable doubt on the records before the court, which depended upon the testimony of the complaining Avitness alone (People v. Churgin, 261 N. Y. 661 [9 years old]; People v. Slaughter, 278 N. Y. 479 [15 years old]; People v. Derner, 288 N. Y. 599 [10 years old and 12 years old]; People v. Rosen, 293 N. Y. 683 [8 years old]; People v. Meyers, 309 N. Y. 837 [9 years old]). A child under 12 years of age is presumed to be incompetent to be sworn as a -witness in a criminal trial, and this presumption must be overcome by proper preliminary examination (People v. Klein, 266 N. Y. 188). Olshansky v. Prensky (185 App. Div. 469) indicates the nature of such preliminary examination. The records of the preliminary examinations in the cases cited lead to the conclusion that the application of this test is necessarily superficial and inconclusive in most instances. Some children were sworn who were younger than in other cases where unsworn statements were taken. The difficulty in applying the test of the understanding of an oath is illustrated by the preliminary examination of the 10-year-old girl upon whose testimony appellant’s fate depends, in which she repeated five times to the Presiding Judge of Special Sessions that she had never told a lie, but added, on reconsideration, that she had lied about 20 times during the previous year. She stated that she believed that, although one may sin by lying, nobody can do anything to you if you do lie. Can it be, in cases of this nature, that the need to have some verification of the testimony of the child depends altogether upon such collateral factors as whether, for example, this child had said in her preliminary examination that she had told 30 lies instead of 20 lies during the year before, or to whom she told the lies, or when she stopped lying? Mention of this is not frivolous, since this is the kind of thing in preliminary examinations of children under section 392 of the Code of Criminal Procedure which would determine the guilt or innocence of defendants unless the courts required some objective earmarks of truth even in eases where the child Avitness has been sworn. Where the -witness has been sworn, it may not be necessary to have supporting evidence of every material fact essential to constitute the crime, but the courts are not automatons of the Legislature to such a degree as to make patchwork of the law by being obliged to require full corroboration in instances where the trial court has taken the unsworn statement of the witness, but at the same time being compelled to dispense with all objective verification where an oath has been administered. To draw this sharp distinction would be as unreal today as the older law preventing atheists from testifying in court on the basis that they do not appreciate the nature of an oath (Jackson ex dem. Tuttle v. Gridley, 18 Johns. 98, 104). This can hardly have been intended by the Legislature. Whether a child eight years old is sworn as in People v. Rosen (supra) or a child of nine years has an unsworn statement taken as in People v. Dutton (supra) is largely fortuitous. Causing the criminal liability of a defendant to depend entirely upon this collateral and largely accidental circumstance would have almost as little to do with deliberative justice as trial by ordeal where, under a practice now happily extinct, the guilt or innocence of a defendant was determined by whether his hand was burned when he thrust it into boiling water or fire.

It is said that the acts charged against this appellant are usually performed in secret, out of the view of corroborating witnesses. That does not signify that some circumstantial evidence cannot be obtained lending veracity to the complainant’s narrative where the charge is true. Moreover, the same criticism would be applicable to the other sexual offenses to which reference has been made where specific statutes require corroborative evidence. Our liberties are based upon the idea that it is better for some of the guilty to go free than for any who are innocent to be convicted. In the extensive discussion of this subject by Professor Wigmore, to which the dissenting opinion in People v. Porcaro (6 N Y 2d 248, 253) refers, it is recognized that the general rule is to require corroboration of charges of all offenses against the chastity of women (Vol. Ill, p. 467; Vol. VII, p. 342 et seq.). His recommendation of changes in the law relate to the extension of existing rules to require in addition the psychiatric examination of complaining witnesses. It is noteworthy that a recommendation of such examinations was contained in the 1937-1938 Report of the American Bar Association’s Committee on the Improvement of the Law of Evidence (3 Wigmore, Evidence, p. 466), and that out of the fullness of his experience Professor Wigmore distrusted testimony by complainants in these cases advising the retention of whatever rules of corroboration exist under statute or case law, and reminded the bench and bar that errant young girls and women are given to “ contriving false charges of sexual offenses by men” (p. 459) concerning which he observed (p. 460) that “It is time that the Courts awakened to the sinister possibilities of injustice that lurk in believing such a witness without careful psychiatric scrutiny.” Psychiatric scrutiny goes beyond anything at issue on this appeal. The subject is mentioned only on account of the attention which has been given to it in the dissenting opinion in People v. Porcaro (supra), decided herewith.

The alleged admission against interest which appellant’s wife testified that he made to her consisted in a telephone call to her about two weeks after she had brought about his arrest, during which interval they had been separated. She testified that he said over the telephone “ that it was true what he done ” and that £ £ he was sorry for what he did to his daughter, and then I told him that I couldn’t forgive him for what he had done to her ” and “ that he violated his rights as a father, and then he told me about this other woman that he had. ’ ’ If this statement, which appellant denied having made, could amount to an admission of a sexual assault upon his daughter, which is not altogether clear, we consider that the objection to its introduction into evidence should have been sustained on the ground that it was a confidential communication between husband and wife induced by the marriage relation. It is true that they had been living separately for a short time after appellant’s arrest, but the circumstances indicate that (if spoken at all) this statement was part of an attempted reconciliation between husband and wife (People v. Daghita, 299 N. Y. 194,198-199; Warner v. Press Pub. Co., 132 N. Y. 181,185-186; Parkhurst v. Berdell, 110 N. Y. 386, 393). The presumption of confidentiality has not been rebutted as was held in Poppe v. Poppe (3 N Y 2d 312). The Appellate Division held that this conversation was erroneously admitted.

The conviction appealed from should be reversed upon the ground that appellant has not been proved guilty of the offenses charged beyond a reasonable doubt.

Btjbke, J. (dissenting).

The Appellate Division, while finding that the reception of an admission was error, unanimously affirmed a judgment of conviction of the Court of Special Sessions, stating in a short memorandum that “ The record amply establishes the guilt of the defendant We agree with this latter conclusion.

Defendant was found guilty of impairing the morals of his 10-year-old daughter. The facts and principles of law involved here are similar to those in People v. Porcaro (6 N Y 2d 248, decided herewith) wherein we treat the sufficiency and weight of the uncorroborated sworn testimony of children under 12 in criminal cases of this nature.

Here, in addition to the child’s sworn testimony, we believe that the testimony of the mother of the child and wife of the defendant regarding his alleged admission that ‘ he was sorry for what he did to his daughter ’ ’ was properly received by the Court of Special Sessions. Whether the testimony of the wife was credible was a question for the trier of the facts. This admission, however, was not privileged.

Whether or not this witness was competent to testify to this statement presented a mixed question of law and fact (cf. Poppe v. Poppe, 3 N Y 2d 312). Here, the majority of the Special Sessions Judges found as a fact that the “ presumption of confidentiality had been rebutted ’ ’ and that the admission was not prompted by any loyalty or trust engendered by the marital relationship.

Section 2445 of the Penal Law only prohibits the disclosure of confidential communications (People v. Daghita, 299 N. Y. 194; People v. McCormack, 278 App. Div. 191, aifd. 303 N. Y. 782). Not all inter-spouse communications are confidential but only those which would not otherwise have been communicated except that the party relies on the confidence and intimacy of the marital relationship (People v. Daghita, 299 N. Y. 194, supra).

Confidence and a marriage relationship are a sine qua non for without them there can be no privilege. A mere separation from bed and board may not destroy the relationship but there must be more than the simple fact that the parties are husband and wife.

In this respect the requirements of section 2445 of the Penal Law and section 349 of the Civil Practice Act are identical. Section 349 provides that “ A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage.” (Emphasis added.)

Recognizing that not all statements between husband and wife, if made in privacy, are within this prohibition, we stated in Poppe v. Poppe (3 N Y 2d 312, 315, supra), that the statute was “Designed to protect and strengthen the marital bond, it encompasses only those statements that are 1 confidential,’ that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship. Whether, therefore, a particular communication is to be excluded from evidence on the ground that it is confidential necessarily involves a preliminary question of fact for decision by the trial judge, and it matters not that the ultimate issue for determination by the trier of the facts (here, cruelty) is essentially the same as the issue which determines admissibility [citing cases]. * * * It is, however, perfectly clear that the statute was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other, or that it was ever intended to label confidential a communication aimed at destroying the marital relation ”.

The injury to this child has been held to be an injury to the wife and the marital relation. Some courts believe that necessity dictates if not requires that no privilege attach under these circumstances (State v. Kollenborn, 304 S. W. 2d 855 [Mo. Sup. Ct.]; 8 Wigmore, Evidence, § 2239, p. 258). “ Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.” (Hawkins v. United States, 358 U. S. 74, 81 [concurring opinion].)

However, it is unnecessary now to go this far for we find that the circumstances surrounding the admission were sufficient in themselves, as Special Sessions found, to rebut any presumption of confidence or that the statement was elicited or uttered by reason of loyalty, affection or family devotion. The defendant admitted the crime at a time when he was separated from his wife and family. The defendant husband and his wife had quarreled over alleged extramarital relations indulged in by the defendant. His child had lodged serious accusations against him resulting in his arrest at the instance of his wife. WTiere the family relationship has been seriously impaired and the marital status has so deteriorated the reasons and basis for the privilege vanish (Hawkins v. United States, 358 U. S. 74, 77, supra; Poppe v. Poppe, 3 N Y 2d 312, supra). Defense attorney’s characterization of the alleged conversation as an attempted reconciliation is self-serving and was rejected by Special Sessions as contrary to the facts. Such a communication could hardly be presumed to be confidential, when made to the person who had caused his arrest.

Moreover, in evaluating the character of the admission, we must examine the statement with due deference to the circumstances under which it was made, and in the light of the severed marital relationship. In this regard, the husband’s statement strikes us as an acknowledgment which could be made by any remorseful sex offender to any mother who had been wronged rather than a plea of a penitent husband confiding to his wife the story of his wrongdoing.

The judgment should be affirmed.

Desmond, J. (dissenting).

I agree with Judge Burke for affirmance.

Two questions of law are before us: first, whether the telephone conversation between husband and wife was admissible in evidence; and, second, if that conversation was not admissible, whether the other uncorroborated testimony of the infant complainant was a sufficient basis for conviction. As to the first of those questions, the two courts below differed. In my opinion, there was in this record and on these facts justification for the holding of Special Sessions that this particular husband-wife conversation did not constitute a confidential communication induced by the matrimonial relationship (see People v. McCormack, 278 App. Div. 191, affd. 303 N. Y. 782).

But in any case (now we reach the second question of law) the evidence here, with or without the telephoned admission by defendant, may not be held to be as matter of law insufficient for a conviction. There is not and never has been a rule of law in this State requiring corroboration of the sworn testimony of the infant complainants in these cases, and to my mind such a rule would be very much against the public interest. The Legislature which makes and announces public policy has by appropriate statutes demanded corroboration in other kinds of criminal cases and (not applicable here) of unsworn testimony of some infants (Penal Law, §§ 71, 103, 1091, 1455, 2013, 2460; Code Prim. Pro., § 392). But there is no statutory requirement of corroboration in prosecutions under section 483 of the Penal Law. Unless and until such a requirement is imposed by statute we, whatever may be our individual attitudes, have no right to supply one. That leaves in this case questions of fact only and those we are forbidden to review (N. Y. Const., art. VI, § 7).

The judgment should be affirmed.

Chief Judge Conway and Judge Fboessel concur with Judge Van Voobhis, and Judge Fuld concurs in his separate concurring opinion in People v. Porcaro (6 N Y 2d 248, 252), decided herewith; Judge Bubke dissents in an opinion in which Judge Dye concurs and in which Judge Desmond concurs in a separate opinion.

Judgments reversed and information dismissed.  