
    The People of the State of New York, Respondent, v. Daniel Edwards, Appellant.
    Second Department,
    June 9, 1916.
    Crime — rape — indictment charging two degrees of crime — general verdict — sentence for higher degree — evidence justifying conviction.
    Where an indictment charges rape in the first degree, with another count for assault with intent to commit rape, and the defendant makes no request that verdicts be rendered upon the separate counts and does not require the prosecution to elect between them, the court, on the return of a general verdict against the defendant, may pass judgment for the highest grade of the offense.
    Evidence examined, and held, to sustain the conviction of the defendant. Proof of completed sexual coition is not necessary to conviction.
    Appeal by the defendant, Daniel Edwards, from a judgment of the County Court of Queens county, rendered against him on the 5th day of February, 1915, upon a general verdict of “guilty” under an indictment charging him with rape in the first degree and assault in the second degree.
    
      Richard F. Adams, for the appellant.
    ' Denis O’Leary, District Attorney, for the respondent.
   Carr, J.:

This is an appeal from a judgment of conviction of a crime in the County Court in Queens county. The defendant was indicted for the crime of rape in the first degree, and, in the second count" of the indictment, for assault with the intent to commit rape. Both counts were submitted to the jury, who returned a general verdict of “guilty.” The sentence imposed by the trial court was based apparently upon the first count of rape in the .first degree. No objection was made by the defendant to the form of the verdict as rendered, nor was there any request to the trial court to direct the jury to render its verdict upon the separate counts of the indictment, nor to compel the prosecution to elect as to which count was to be submitted to the jury. While the crimes charged in the indictment were of different grades of crime, and the penalties provided by the Penal Law (§§ 243, 2010) were different in severity, that for attempted rape being less severe than that for rape in the first degree, yet the settled practice of the criminal law is for the court to pass judgment on the count charging the highest grade of offense. (Conkey and Herrington v. People, 5 Park. Cr. Rep. 31 [Court of Appeals, I860]; Harman v. Commonwealth, 12 S. & R. 69; People v. Emerson, 5 N. Y. Supp. 374.)

We have examined the record with care. The testimony adduced by the prosecution established the guilt of the defendant beyond a reasonable doubt, and it may be said that its force was overwhelming as against the defendant. The testimony of the prosecutrix was strongly corroborated in its essential features. The alleged crime was committed °on August 30, 1914. The girl, about fifteen years of age, was examined a few days thereafter by a physician who testified for the prosecution, and he found a rip or tear in the vagina “of recent origin,” which, in his judgment, had existed “a very short period; probably not more than a day or two.” The girl herself testified to “penetration” by the defendant. The only evidence to the contrary, apart from that of the defendant, who made a complete denial of rape or attempted rape, was that of an ambulance surgeon, called by the defense, who testified that, on the night of the alleged crime, he had examined the girl and “ didn’t see practically any signs of external violence except that the hymen had been ruptured at some time or other; whether recent or that night I could not tell.” He further testified that he took the girl to an hospital and made a “smear” of the vaginal fluids and, on examining the same under the microscope, that he found no spermatoza. The most that this evidence would indicate was that there had not been a completed sexual coition. But that was not essential to the crime of rape as defined in the Penal Law, for the statute declares that “any sexual penetration, however slight, is sufficient to complete the crime.” (Penal Law, §§ 2010, 2011.) We find no reversible error in any of the rulings of the trial court.

The judgment of conviction of the County Court of Queens county is affirmed.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Judgment of conviction of the County Court of Queens county affirmed.  