
    People v. McKeon.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1892.)
    1. Rape—Corroborative Evidence.
    On an indictment for rape, where complainant has testified to the offense, evidence that defendant had been seen going to and from the house of complainant about the time when, as she testified, the offense was committed, and that immediate complaint had been made by her, accompanied by an appearance of tears and distress, although only slightly corroborative, is sufficient to go to the jury.
    3. Criminal Law—Evidence—Attempt to Escape.
    The fact that a person, who is confined for two distinct offenses, attempts to escape, is not evidence of consciousness of guilt as to either charge, since it is impossible to tell which offense prompted the attempt.
    8. Same—Appeal—Reversal—Incompetent,Evidence.
    Where incompetent evidence is received against one in’a criminal case, the error must be conclusively shown to have been innoxious, or the judgment will be re versed, and this, notwithstanding that the result might, and probably would, have been the same without the said evidence.
    
      Appeal from court of sessions, Cayuga county.
    Thomas McKeon was convicted of rape, and appeals from an order denying a motion in arrest of judgment and for a new trial.
    Reversed.
    Argued before Dwight, P. J., and Macohber and Lewis, JJ.
    
      H. Greenfield, for appellant. A. P. Rich, for respondent
   Dwight, P. J.

The defendant was convicted mainly, as was natural, on the testimony of the woman who was alleged to have been the subject of the crime. The supporting testimony was slight, but, we think, sufficient to warrant its submission to the jury. It consisted, for the main part, of testimony by other witnesses that the defendant was seen going to and away from the house of the complainant, where she was alone, at about the time when, as she testifies, the crime was committed, and, by one witness, of immediate complaint on the part of the complainant, accompanied by an appearance of tears and distress, corresponding with her story of the wrong to which she had been subjected. We do not dwell upon this branch of the case, because there is one exception in the record which we think must be fatal to the judgment.

The people were permitted, under the objection of the defendant, to give evidence of an attempt on his part to escape from the jail where he was confined awaiting trial, while it was conceded by the district attorney that he was. at the same time held on a bench warrant issued on an indictment charging him with another crime,—what crime is not stated. We think it was error, under these circumstances, to admit the testimony objected to. Such evidence-is not of a very direct or persuasive character, at the best. It has been held competent, as tending to show consciousness of guilt. People v. Petmecky, 2 N. Y. Crim. R. 451. But where the defendant is held under two distinct charges, how can the fact of an attempt to escape be said to raise any presumption of guilt of either of the crimes charged rather than the other? It is plain that the motive to escape may have been furnished wholly by his fear of prosecution for the other crime with which he was charged, and thus the act proved have been entirely consistent with consciousness of innocence of' the crime in question. Such being the case, the evidence was clearly incompetent, and yet it may have been decidedly prejudicial to the defendant. The rule as to the effect of the admission of incompetent evidence is well stated by Allen, J., in the case of Coleman v. People, 58 N. Y. 555. He says: “It seems that on a criminal trial, especially where incompetent evidence is received against the accused, the judgment will be reversed, unless the error is shown, conclusively, to be innoxious. It is not enough that the court sitting in review are of the opinion that the result may, and probably would, have been the same had the objectionable evidence been excluded. ”

There were other exceptions in the case which might merit attention, but, as none of the questions raised by them is likely to arise on another trial, they need not be examined here. For the error specified the judgment should be reversed, and a new trial granted.

Judgment and conviction of the court of sessions of Cayuga county reversed, and a new trial granted. All concur.  