
    Supreme Court—Appellate Division—Fourth Department.
    March, 1903.
    THE PEOPLE v. VICTOR HAISCHER, Jr.
    (81 App. Div. 559.)
    Rape—Evidence—Corroboration of Complainant—Penal Code, Sec. 283.
    Where upon the trial of an indictment for rape in the second degree complainant gave the only direct evidence as to the commission of the crime, and the prosecution called four witnesses, one who! testified that complainant was pregnant and the others that she had been seen in defendant’s company and had gone to the place where complainant testified the crime was committed, it fails to furnish the corroborative testimony required by section 283 of the Penal Code, as the material fact to be proved and as to which corroboration of complaint is required, is the alleged sexual intercourse.
    Appeal by the defendant, Victor Haischer, Jr., from a. judgment of the County Court of Steuben county in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 10th day of October, 1901, upon the verdict of a jury convicting the defendant of the crime of rape, second degree.
    W. J. Cheney, for the appellant.
    William W. Clark and Almon W. Burrell, for the respondent.
   Nash, J.:

The complainant testified to1 the fact constituting the crime. She says that upon the invitation of the defendant she went with him to the club room on the evening of January 15, -1901; that the defendant called for her at the house of her parents in Coming, and from there they went together to the club rooms;-that, the entire building was dark when they went in; that the defendant lit a. light in the billiard room and in a little room where the sexual intercourse was had; that at the time they went into the building there was no one else there; that after they had intercourse there was a rap on the door, which was unlocked by the defendant, and the other boys came in. The hoys, she says, did not remain very long, and after they went away she and the defendant left.

The question here is whether the complainant was sufficiently corroborated as required by the statute: (Penal Code; sec. 283.)

The prosecution called four other witnesses. Dr. Argue, who testified that the complainant was pregnant. Mrs. Robbins, the mother of the complainant, who testified that she recalled the circumstance of her daughter going'to- the club; that the defendant came that evening,, and that he and her daughter Martha went off together and she returned about half-past 9. Harold Robbins, a brother, younger, testified that the defendant came to their home one night the winter before and his sister went away with him. Kate Gridley, a young lady, testified that she had seen the defendant and complainant together on the streets and mentioned two occasions in the winter before when they were walking together, and once they met on a streetcar*.

This cannot be said to be any corroboration whatever. In People v. Plath (100 N. Y. 590), Ruger, Ch. J., stated the rule as follows: “ In cases where corroboration is required there has been some diversity of opinion in the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed in- order toi comply with the rule; but it is now conceded to' be the general rule that it should tend to show the material facts necessary to establish the commission of a crime and the identity of the person committing it.”

He quotes with approval the rule as to corroboration of an accomplice as stated in Eoseoe’s Criminal Evidence, as applica,ble: “ That there should be some fact deposed to independently altogether of the evidence of the accomplice which taken by itselfs leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it.”

The statute is silent as to what circumstances of corroboration are required. The provision is that no conviction can be had upon the testimony of the female unsupported by other evidence. This implies that there must be some support. Vae Bbunt, P. J., in People v. Cullen (23 N. Y. St. Repr. 559), where a conviction was affirmed, said: “ The true rule is that where there is some evidence fairly tending toi support the complainant as to some material part of the crime charged, so that a conviction will not rest entirely upon the testimony of the complainant, it is the duty of the court to submit the question to the jury.”

In effect it is there said that there must be some evidence fairly tending to support the complainant as to some fact which connects the defendant with the commission of the crime. (People v. Elliott, 106 N. Y. 288.) The fact that the defendant and complainant were at times in company with each other cannot be regarded as corroborative of improper relations. Pregnancy is evidence merely of intercourse had with some one by the complainant. Strike out the testimony of the complainant and there is nothing left of the case implicating the defendant. In People v. Terwilliger (74 Hun, 310), the case relied upon by the respondent, there was evidence of facts and circumstances other than as deposed to by the female, which the majority of the court held tended to prove that the defendant was the person who committed the crime, connected him with the commission of the act itself, and there was also a disclosure within the proper time which was held to be some corroboration. The court there recognized the rule stated in. the Plath case, that there must be proof given aside from the testimony of the female tending to establish the commission of the crime-by the defendant before a conviction can lawfully be had. The corroboration here is simply as to the fact that the defendant and the complainant went together to. the club' rooms, or left the home of the complainant’s parents together for the purpose of going there. It is conceded that they were at the club rooms together on an evening in January, the date only being in dispute, the complainant claiming it was on the evening of the 15th, the defendant that it was on the 4th. Whether it was on the 4th or 15th is of itself unimportant. The material fact to be proved and as to which corroboration of the complainant is required is the alleged sexual intercourse, and, as to that, the narrative of three witnesses other than, that of the defendant is to the effect that it did not take place. The complainant was there but once, and these witnesses testify that they were in the club rooms when the prosecutrix and the defendant came there together. But whether it was on the 15th or 4th, the complainant is without support as to the alleged act of intercourse.

The court below erred in submitting, the case to the jury. The judgment must, therefore, be reversed.

McLennan, J., concurred; Seeing and Hiscock, JJ., concurred in result upon the ground that the verdict is Contrary to the evidence; Willíams, J., dissented.

Judgment of conviction reversed and new trial ordered.  