
    The People, etc., Resp’ts, v. John Batterson, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888).
    
    1. Criminal law—Indictment for rape—Persons adding and assisting INDICTABLE AS PRINCIPALS.
    The defendant was indicted, jointly with three other persons, as principals, for committing the crime of rape. The evidence in regard to him was that he was present and took part in pushing away from the girl her male escort and protector so that the other three could have connection with her. Held, that both under section 39 of the Penal Code and under the common law, he was properly indicted as a principal, and that it was not necessary that the acts of the defendant should be specifically charged in the indictment.
    
      % Same—Pleading—Accessory before the fact.
    Although the provisions of section 39 of the Penal Code, defining a principal, are broader and more comprehensive than the prior statutes and embrace what was before known as an accessory before the fact, yet the section does' not change the form of pleading in cases where a person was principal at common law or under the statute.
    3. Same—Evidence, rule as to, in cases of rape.
    The rule in this state 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.
    4. Same—To what extent are the condition and declarations of the PROSECUTRIX AFTER THE OFFENSE, ADMISSIBLE.
    The testimony given by a witness fur the prosecution of the condition of the prosecutrix on her return to the house where she lived, that she was very much agitated and excited, her hair disordered, her face red, eyes swollen and that she cried a great many nights, was competent; but when the same witness was permitted to testify that several days after the occurence the prosecutrix threatened to take her own life—it was held that such testimony was incompetent and tended to prejudice the jury against the defendant.
    Appeal from a judgment of the Monroe court of sessions entered upon a verdict convicting the defendant of the crime of rape.
    .P. Chamberlain, for app’lt; George A. Benton, district-attorney, for the people.
   Haight, J.

The appellant was indicted jointly with Stephen Adwin, John McKibben and Dennis Reardon, with having 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 is contended in the first place, that the verdict is against the weight of evidence. 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 park 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, Batter-son, took hold of the shawl of Miss Kaisar, but that they got away from them at that time, and went on walking in another part of the park; that about a half an hour after-wards, the same four persons again came up with them, and McKibben, Reardon and Batterson took 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 throwed her down again. She called for George, the police, and tried to get up, but he held her down; that McKibben 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 only substantial conflict is in the evidence of the defendant Batterson, who denied that he took part in pushing Bahls away from the girl, but he admits that when they came up with Bahls and the girl, that Adwin addressed him by saying, “Officer do your duty;” that he then put his hand on the shoulder of Bahls, and saidx“Here my good fellow, you know this is not a fit place for you to do this; why don’t you take your girl and go home ? ” That he did nothing further, and then went off home. He further admitted that he supposed he knew the intention of the other men in following the girl, and supposed that they were going to have intercourse with her.

It is not pretended that the appellant personally had intercourse with the girl, but it is claimed that he was present, aiding and assisting the others in accomplishing that crime by forcibly taking from her Mr. Bahls, who was her escort and protector. We regard the evidence as ample to sustain the verdict upon this theory.

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, etc., v. Dumar, 106 N. Y., 502; 11 N. Y. State Rep., 19; 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 Eaisar was in on her' return to the house on the evening in question, to the effect, that she was very much agitated aud 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, etc., v. Clemons, 3 N. Y., Criminal Reports, 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 offence is competent; whilst details given by her as to how the offense was commited 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 offence 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; Rex v. Clarke, 2 Starkie, 214. Baccio 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.

Barker, P. J., and Bradley, J., concur. Dwight, J., concurs in the result.  