
    SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT,
    June 28, 1907.
    THE PEOPLE v. BLOCK.
    (120 App Div. 364.)
    (■!),.. Incest—Appeal.
    When the case has been tried and submitted without objection as one for incest, the defendant cannot on appeal contend that the crime proved was rape which merged the lesser crime.
    (2). Same—Confession of Dependant Admissible.
    On the trial of indictment for incest, confessions made by the defendant c.a tu Ms «ai relations with the complainant leading up to the crime in question are admissible.
    Appeal by the defendant, Max Block, from a judgment tit the Court of General Sessions of the Peace in and for *che county of New York, rendered on the 21st day of Deeennber, 1906, convicting him of the crime of incest, and also frrom an order denying his motion for a new trial.
    
      Samuel Wechsler, for the appellant.
    
      Alexander A. May per, for the respondent.
   Lambert, J.:

The defendant was convicted in the Court <p£ General Sessions of the crime of incest, and has been sentenced to State prison for a term of ten years. It is hardlzy necessary to go into the disgusting details of the trial,-; the evidence fully supports the judgment, and if none fat' the substantial rights of the dñ¿cuh.auL *,rpre violated nnr.u the trial the verdict of, the-”'jury ought not to he disturbed.

Defendant’s counsel makes an ingenious argument on this appeal, to the effect that the crime proved upon the trial constituted, rape, rather than incest, and cites authorities to establish that the lesser crime was merged in the greater. While the evidence showed that the defendant had committed acts of sexual intercourse with his sister for a period of several months, the particular act constituting the crime is alleged to have occurred on the 7th day of November, 1906, and there is some evidence in the case to the effect that the complainant, the defendant’s sister, did not consent to such act, and the defendant urges that if any offense was committed it was that of rape. But the evidence is not such as to justify that contention, it not being proven that the complainant was under eighteen years of age. The weight of the evidence is the other way. • But beyond this the court charged, without objection on the part of the defendant, and the trial was conducted upon the theory that the complainant was an accomplice of the defendant in the crime and that it was necessary that her testimony should find corroboration in the evidence produced by the prosecution. If the crime was rape, requiring her resistance, she could not be an accomplice. (People v. Powell, 4 N. Y. Cr. Rep. 585; People v. Vedder, 98 N. Y. 630.) It was only upon the theory that the crime committed was that of incest that the complainant could be regarded as an accomplice, for she would then be liable to conviction equally with the defendant. (Penal Code, § 302.) Upon the theory on which the case went to the jury there was sufficient corroborative evidence, and the defendant is hardly in a position to urge the point upon this appeal.

The suggestion that the court erred in the admission of evidence is without force. The defendant took the stand in his own behalf. On his cross-examination he was asked if he had confessed to his father certain indecent relations with his sister. He denied having made such confession. The district attorney then called the father and the court, over the defendant’s objection, permitted evidence of such confession. The relations covered by this confession' were those which had occurred during the three months that the complainant concededly lived with the defendant in a single room, and during which time she had testified they were indulging their passions almost nightly, leading up to the night on which the particular act is alleged to have occurred, and it can hardly be said to have constituted a collateral issue in a prosecution of this character. It is competent in eases of this kind to show the relations of the parties, and the defendant having taken the stand' in his own interests it was proper on cross-examination to ask him about this alleged confession, not for the purpose of testing his credibility, but to arrive at the truth on the issue being tried, and the prosecution could not be deprived of the benefit of its competent evidence because it had the effect of contradicting his denials. (1 Greenl. Ev. [15th ed.] § 462, note 1; People v. Ware, 29 Hun, 473, 475; People v. De Garmo, 179 N. Y. 130, 134, 135, 18 N. Y. Crim. 430.)

There is no merit to the exception raised to the other questions asked of the defendant in his cross-examination and the judgment and order appealed from should be affirmed.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Judgment affirmed.  