
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN BATTERSON, Appellant.
    
      Indictment for rape —persons aiding and assisting others in committing the crime a/re liable as principals — Penal Code, sec. 29 — evidence as to threats made by the prosecutrix, several days after the offense had been committed that she would commit suicide is inadmissible.
    
    Appeal from a judgment of the Monroe Court of Sessions, entered June 6, 1887, upon a verdict convicting the defendant of the crime of rape.
    The appellant was indicted, jointly with Stephen Adwin, John McKibben and Dennis Reardon, upon a charge that he did, on the 18th day of July, 1886, at the city of Rochester, in and upon one Sophia Kaisar, violently and feloniously made an assault, and her, the said Sophia Kaisar, then and there, against her will and without her consent, and by forcibly overcoming her resistance, feloniously and forcibly did ravish, carnally know and have sexual intercourse.
    It appears from the evidence that Sophia Kaisar was at the time unmarried, and was a servant girl in the employ of one Westfall, on Harvard street, in the city of Rochester; that she was keeping company with one George Bahls, whom she subsequently married; that on Sunday evening, the 18th of July, 1886, she went for a walk with Mr. Bahls, through Nicholas park, in that city; that whilst in the pai'k they met the four persons indicted, who came to them, one saying to Bahls that he wanted him to come with him, and the defendant Batterson took hold of the shawl of Miss Kaisar, but that they got away from them at that time and went on walkixig in another part of the park; that about a half an hour afterwards the same four persons again came up with them and McKibben, Reardon and Batterson toqk hold of Bahls, one by the throat, the defendant Batterson having a club and pushing from behind, and took him away from the girl, whilst Adwin took hold of her and threw her upon the ground; that she cried and hollered and succeeded in getting up. Adwin then went off with her a little way and threw her down again. She called for George and the police, and tried to get up, but he held her down; that McEhbben and Reardon returned to them and they held their hands over her mouth, holding her to the ground, while each of the three in turn violated her person Bahls, after getting away from the persons who took him away from the girl, went for assistance and found a policeman and Reardon was arrested the same evening. The defendant Batterson gave himself up to the police on Tuesday morning after having remained away from home over Monday night.
    The court at General Term, after holding that the evidence was sufficient to sustain the judgment, said: “ It is contended, in the second place, that there is a variance between the evidence and the indictment; that the indictment should have charged specifically the acts of the defendant Batterson, which they sought to prove upon the trial, as constituting the crime, and the case of the People, eta., v. Dwmar (106 N. Y., 502) is relied upon to sustain this claim. It will be observed that the four persons are indicted together as principals. Section 29 of the Penal Code defines the principal as £a person concerned in the commission of a crime, whether he directly commits the acts constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly, counsels, commands, induces or procures another to commit a crime,’ etc. No question is made but that this provision is broad enough to cover the acts of the defendant and make him a principal. But it is claimed that his acts should be set forth showing that he was a principal within the provisions of this section. Whilst the provisions of the section defining a principal is broader and more comprehensive than the prior statutes, and embraces what was before known as an accessory before the fact, we do not understand it to have changed the form of pleading in the cases where a person was principal at common law or under the statute. Such we regard the defendant Batterson. The crime was commenced when .these persons took hold of Bahls and the girl to separate them. Batterson was then present, and by taking part in pushing Bahls away from the girl was aiding and assisting in their separation so that the other three could have connection with her and not be prevented by her friend and escort Bahls. This would make Batterson a principal at common law as much as though he was present aiding and assisting burglars in the breaking open of a house although he did not personally enter.
    
      “ A more serious question is raised in reference to the admission of evidence. Upon the trial Mrs. Westfall was sworn as a witness on behalf of the people, and gave evidence as to the condition that Miss Kaisar was in on her return to the house on the evening in question, to the effect that she was very much agitated and excited, and appeared much frightened; that her hair was disordered, her face red, eyes swollen; that she was crying, and continued crying for some time afterwards; she appeared very different from usual and as though she had something on her mind which was greatly troubling her; that she cried a great many nights nearly all night long; and then, -under objection, testified to her having threatened to take her own life; that before that she was a girl of a very happy disposition and of pleasant manners. The decisions in the different States of the union are not in exact harmony upon the question here presented. The subject was under consideration in this court in the case of People, ete., v. Olemons (3 N. T. Crina. R., 565), in which case many of the authorities are cited and considered. The rule in this State doubtless is that on the trial of an indictment for rape proof of the fact that the prosecutrix made complaint recently after the commission of the offense is competent, whilst details given by her as to how the offense was committed and by whom is not competent as evidence in chief; that it is also competent to show the condition of the prosecutrix, mentally and otherwise, immediately after the offense in order that the jury may judge more accurately as to the credit that should be given to her testimony. The evidence as to her disheveled hair, her frightened appearance, red face and swollen eyes, and of her crying, was doubtless competent. The testimony to the effect that she also threatened suicide some days afterwards is going a step beyond the well authenticated rule. Whilst I am not prepared to say that it was such an error as would make a new trial necessary, my associates are of that opinion; they think it was incompetent and tended to prejudice the jury against the defendant. (Bex V. GlctrTce, 2 Stark., 241; Baeeio v. The People, etc., 41 N. Y., 265.)
    “No other questions are raised which it is necessary to here consider. The judgment and conviction reversed and new trial ordered and the proceedings remitted to. the Court of Sessions of Monroe county to proceed thereon.”
    
      P. Oha/mherlcmi, Jr., for the appellant,
    
      George A. Benton, district attorney, for the respondent.
   Opinion by

Haight, J.;

Barker, P. J., and Bradley J., concurred; Dwight, J., concurred in the result.

Judgment and conviction reversed and' a new trial ordered, and proceedings remitted to the Court of Sessions of Monroe county to proceed thereon.  