
    The People of the State of New York, Respondent, v. William Baldwin, Appellant.
    Third Department,
    June 29, 1910.
    Crime — criminal assault — grand jury—infant witness — evidence.
    The grand jury may examine a child under twelve years of age as a witness if satisfied as to her qualifications.
    In the absence of any evidence on the subject, it will be presumed that the grand ■ jury made proper investigation before receiving in evidence the statement of a witness only four years old who had been criminally assaulted.
    Where, upon the trial of one charged with criminal assault upon a child four yéars old, the child is the only one to identify the defendant as the person who enticed her into the shed, and another witness who testified to having seen him with the child, identifies him merely by general appearance, not having seen his face, and hoth declare that he "was wearing a straw hat, and four other witnesses called by defendant testified that they saw him about the place at the time of the assault and that he was wearing a derby, and there is no pretense that he could have changed his hat, there is not satisfactory corroboration of the statement of the child and a judgment of conviction should he reversed.
    Appeal by tlie defendant, William Baldwin, from a judgment of tbe County Qourt of Saratoga county, rendered against the defendant on the 26th day of November, 3909, convicting him of tbe crime of assault with intent to commit rape.
    
      Robert W. Fisher and William W. Norton, for tbe appellant.
    
      William T. Moore, District Attorney, for the respondent.
   Houghton, J.:

The defendant was convicted of criminal assault upon a child four yeárs of age. On the back of the indictment the name of the child appeared as one of tbe witnesses examined before tbe grand jury. On arraignment tbe defendant pleaded not guilty, and moved to dismiss tbe indictment on the ground that tbe grand jury bad no right in finding an indictment to receive either tbe child’s testimony or statement. There was no proof as to whether or not she was actually sworn in giving her testimony before the grand jury, or what if any examination was made to ascertain whether she possessed sufficient intelligence to justify the taking of her statement.

Section 392 of the Code of Criminal Procedure provides that whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not in the opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given uilder oath, if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence ; but further provides that no person shall be held or convicted of. an offense upon such testimony unsupported by other evidence.

In his motion the learned attorney for the appellant conceded that it was within tbe discretion of a court or magistrate to receive the statement of the child, but contended that the law had not made her' statement competent as evidence before - a grand jury. The precise question was passed on in People v. Sexton (187 N. Y. 495), and it was held that a grand jury was such a distinct body and so clothed with authority to conduct the examination of witnesses that it had the power to determine for its'elf the qualification of witnesses of tender years so long as there was' due observance of the statutory safeguards enjoined -upon other tribunals under similar circumstances; and in. effect that a proceeding - before'a grand jury was such a criminal proceeding as made the provisions of section 392 of the Code of Criminal Procedure applicable. It is true that in -that case there was an affidavit of the district attorney that the grand jury made .investigation as to the intelligence and qualification of the child to give evidence, while in-the present case no such affidavit appears. We think, in the absence of any evidence upon the -subject, it must be presumed that the 'grand jury did make proper investigation before the child was permitted to make her statement, and that, therefore, :tlie defendant’s motion was properly denied.

But the evidence adduced against the defendant upon- the trial was of so unsatisfactory a character that we feel a new trial should be granted to him. The child was properly permitted to make her statement. She was less than five years old when this was done, however, and her evidence was necessarily colored by talks which she had had with her elders. Section 392 of the Code of Criminal Procedure provides, that no person shall be convicted of an offense upon the testimony of a' child of such immature years unsupported by other evidence. The law, therefore, called for especial corroboration of her testimony. The defendant on the trial did not controvert the fact that an attempted'criminal assault had been committed; but he maintained that he was not the man who committed it. The scene of- the assault was a horseshed connected with a hotel, and near passers-by iipon the street, and in a comparatively thickly populated neighborhood. The child- was the only one who identified the defendant as the man who enticed her into the shed. One witness who claims to have seen him with the' child was unable t-o identify him, except-as to general appearance, not having seen his face. Both, the child and this witness say that the man. who committed the assault wore a straw hat. The defendant called two of the witnesses who had been sworn in behalf of the People, and who had testified that they had seen him in the vicinity about the time of the alleged assault, and they testified that at the time he was wearing a black derby hat. He also called two other witnesses who testified to the same thing. There is no pretense that he could have changed hats during the time in controversy, and it is quite apparent that identification of the man who committed the assault depended largely upon the kind of hat he wore. The testimony casts very serious doubt upon the fact as to whether the defendant was the man who committed the ofEense. The mere fact that a man is-charged with so revolting a crime subjects him to immediate abhorrence and detestation, and courts should very carefully guard his rights.

Our conclusion is that justice requires that the judgment of conviction be reversed and a new trial granted.

All concurred.

Judgment of conviction reversed and new trial granted.  