
    SUPREME COURT—APP. DIV.__THIRD DEPARTMENT,
    July 8, 1913.
    THE PEOPLE v. JAMES DOYLE.
    (158 App. Div. 37.)
    (1.) Rape —Intercourse with female under age of consent—Corroboration of complainant as to use of force.
    Prosecution of a defendant for the crime of rape in having intercourse with a female under the age of consent. Evidence examined, and held, that the testimony of the complainant as to the force used to perpetrate the act was not sufficiently corroborated by other evidence to sustain a conviction of the defendant for rape in the first degree.
    (2.) Same—Evidence as to subsequent illicit relations incompetent. Evidence as to illicit relations between the defendant and the complainant subsequent to the act alleged was incompetent.
    Kellogg and Lyon, JJ., dissented.
    Appeal by the defendant, James Doyle, from a judgment of the County Court of Otsego county, rendered against him on the 4th day of October, 1912, convicting him of the crime of rape in the first degree.
    
      N. P. Willis, for the appellant.
    
      Orange L. Van Horne, District Attorney, for the respondent.
    
      
       See Notes, Vols 5-251; 24-7; 27-279.
    
   Smith, P. J.:

The defendant was indicted for feloniously, willfully, maliciously and wrongfully making assault upon Hazel Vunck, a female not his wife, being under the age of eighteen years. It was further charged in the indictment that the defendant did wrongfully ravish and did then and there perpetrate an act of sexual intercourse with her against her will and without her consent and when her resistance was forcibly overcome.

The evidence is to the effect that upon April 30, 1912, the defendant and Hazel Vuhck first met. They did not see each other again until May twelfth, when the defendant called upon Hazel Vunck at her home. He took dinner at the house and afterwards the complainant’s stepmother played the piano and the defendant sang. Thereafter the complainant and the defendant took a walk. The defendant proposed to the complainant that he wanted to take her south. She asked in what way, and he answered as his wife, and she answered that she would consider it. Thereafter they walked up the road and the complainant proposed to go home. The defendant, however, said no, and, according to the evidence of the complainant, foolc hold of her arm and forcefully led her between 200 and 300 feet from the highway into the woods. He forcefully took her hat from her head, throwing aside the hatpins. He then pushed her to the ground, lifted her clothing and had intercourse with her. After the act was consummated she asked him if he supposed she was in trouble, and he answered yes. She asked if she could not take medicine to avert the trouble, and he said no, it would poison her and there would be worse trouble. He said he thought they could be married by June fifteenth. They then went home, the complainant changed her clothes and took supper, and soon thereafter the stepmother of the complainant came in and ordered the defendant out of the house. She had noticed that the complainant’s dress was somewhat mussed, that her arm was scratched, and had noticed the complainant wiping tears from her eyes. Upon the fifteenth of June the defendant did not come for the complainant, and she next saw him in Albany upon July sixth. Meantime she had corresponded with him and she met him there by his appointment. They lived together at a rooming house in Albany for two days. They then went to Amsterdam where they separated. Upon July twenty-fourth they again met at Albany and went to New York together, where they lived together apparently until September 1, 1912. She asked him several times when they were to be married and he postponed the time, alleging that he had not money enough, and said that he thought they could be married in October. After a quarrel upon September first they separated, the complainant came home, and this charge was made against the defendant. The complainant was born upon May 29, 1894, so that upon May twelfth, at the time she alleges the defendant first had intercourse with her, she was under eighteen years of age. Upon July sixth, however, and from July twenty-fourth to September first, when they were living together in New York, she was over eighteen years of age. Upon September liinth she was examined by a physician, who swore that she was pregnant and had been so he thought between three and four months, although he could not tell accurately the length of time.

The learned trial judge in charging the jury read to them section 2010 of the Penal Law, and also stated the law that under the same section a person who perpetrates an act of sexual intercourse with a female not his wife under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the sécond degree. At another part of his charge he stated: “ If the crime was committed on a person over eighteen years of age and that person did not resist, used no means of preventing it, made no outcry, then, sometimes, it would be a defense. In the crime of rape in the first degree there must be a degree of force used, but where the person upon whom the offense is committed has not reached the age of eighteen years, it is not any element of the crime, and it is not essential for the People to prove that any force was used, or any resistance made on the part of the person performing the offense alleged to have been committed.” The jury returned a verdict of guilty of rape in the first degree. From the charge read it might well have been inferred by the jury, that while force wa's usually an element of the crime of rape in the first degree, nevertheless if the intercourse were committed with a woman under the age of eighteen years that force was not necessary to a conviction of rape in the first degree. No exception was taken to this charge. If the attention of the trial judge had been directed thereto he would undoubtedly have pointed out the distinction which was drawn in the first part of his charge between rape in the first degree and rape in the second degree. All of the requests to charge made by the appellant’s counsel were granted, and the only question here presented is whether the evidence is sufficient to convict the appellant of rape in the first degree.

As the appeal is from a judgment of conviction of rape in the first degree it is unnecessary to consider whether the evidence would sustain a conviction of rape in the second degree by reason of the commission of the act of sexual intercourse with a woman under eighteen years of age. This judgment cannot be sustained, notwithstanding all the elements of rape in the second degree have been proven and found by the jury. (People v. Munroe, 119 App. Div. 704, 21 N. Y. Crim. 209; revd., 190 N. Y. 435, 22 N. Y. Crim. 1.) The judgment can only be sustaned if the evidence sufficient to show that the defendant by means of force overcame the resistance of the complainant and against her will had intercourse with her. By section 2013 of the Penal Law it is provided that no conviction can be had for rape upon the testimony of the female raped unsupported by other evidence. So that the question ultimately resolves itself into the question of fact whether the story of the complainant of the use of force ip perpetrating the act of sexual intercourse upon her upon May twelfth is corroborated by other evidence.

Against the objection of the defendant the People were allowed to show the subsequent illicit relations between the defendant and complainant in Albany and in New York. It is difficult to see how this evidence is competent to prove the act of forcible rape upon May twelfth. If the evidence be competent, however, the natural inference would seem to be that the illicit relations between the parties began by consent rather than by force. There does not appear to have been at any time any resentment by the complainant against the defendant. The story that the defendant took the complainant by the arm in a public highway and led her forcibly without her consent into the woods is not very probable. If her resistance had been genuine she could have fallen to the ground and called for help; and the defendant could hardly have carried her into the woods from a public highway without detection. She made no call for help. She made no complaint of this outrage upon her until after the first of September, when their relations were broken up in New York city. It does not appear that he was in any way scratched from any struggle on her part to resist, or that her limbs were in any way bruised. Her arm was scratched with a hat pin, which might easily have been if she had voluntarily though carelessly taken off her hat. None of her clothing seems to have been tom. That her clothing was mussed and her hair disheveled is no more evidence' of force than it is of voluntary cohabitation between the complainant and defendant. The fact of pregnancy seems to be no corroboration. (People v. Haischer, 81 App. Div. 559, 17 N. Y. Crim. 387.) But if corroboration of the fact of intercourse it is not corroboration of the fact of forcible intercourse. The defendant was not sworn upon the trial. He was undoubtedly convicted upon his harsh treatment of the complainant in New York. According to the evidence he was already a married man, and he probably deceived the complainant; but whatever may have been his vices he cannot be convicted of rape in the first degree unless the evidence of the complainant of the force used to perpetrate the act of intercourse is corroborated by other evidence. For the lack of such corroboration we think that the conviction must be reversed and a new trial granted.

All concurred, except Kellogg and Lyon, JJ., dissenting.

Judgment of conviction reversed and new trial granted in. the County Court of Otsego county.  