
    SUPREME COURT—APP. DIV.—SECOND DEPT.
    Jan. 6, 1909.
    THE PEOPLE v. CLINTON A. BILLS.
    (129 App. Div. 798.)
    (1) . Rape—Complainant Must be Corroborated.
    On a prosecution for rape there can be no conviction on the uncorroborated testimony of the complainant.
    (2) . Same—Evidence of Physicians When Not Cobrobobative.
    Mere evidence of physicians that the complainant had had sexual relations with men is no corroboration, if it fails to connect the defendant therewith.
    (3) . Same—Subsequent Intercoubse.
    Under an indictment charging a rape committed at a certain date, proof of intercourse at a later date is inadmissible.
    (4) . Same—Confession of Like Crime with Another Not Admissible.
    So, too, proof that the defendant admitted that he had committed a like crime upon another daughter and had been convicted therefor is inadmissible.
    (5) . Same—Defendant’s Not Being Sworn Must Not be Considered.
    The fact that the defendant was not sworn upon the trial cannot be considered against him.
    (6) . Same—Defendant’s Previous Imprisonment.
    The court will not he moved to sustain a conviction on evidence clearly erroneous merely because the defendant has already been imprisoned for some years, and that a new trial and new conviction will prolong his imprisonment.
    Appeal by the defendant, Clinton A. Bills, from a judgment of the County Court of Herkimer county in favor of the plaintiff, rendered on the 12th day of January, 1905, convicting the defendant of the crime of rape in the second degree, and also from- an order entered in the office of the clerk of the county of Herkimer on the 23d day of June, 1905, denying the defendant’s motion for a new trial.
    
      
      Francis C. Raines, for the appellant.
    
      Rush F. Lewis, for the respondent.
   Williams, J.:

The judgment should be reversed and a new trial granted.

The charge was that the defendant committed the crime upon his daughter, Althea, who was thirteen years old. The defendant was not sworn as a witness. The daughter testified in a way, to the commission of the offense, but her testimony was not supported by other evidence, and, therefore, no conviction could be had, as provided by section 283 of the Penal Code. The evidence of the physicians showed that the complainant had for some time been having sexual intercourse with men, but it wholly failed to connect the defendant with such intercourse. The evidence of defendant’s talks about the complainant with other people in no manner tended to show that he had heen guilty of the crime; he in no way confessed or admitted it. So that there was no sufficient evidence to sustain a verdict of guilty.

In addition to this reason for reversal of the judgment, reversible errors were committed in the trial of the case. The indictment charged the offense as July 15, 1904, and proof was given of intercourse in October, 1904. Proof was also permitted to be given that defendant said he had been charged with a like crime committed upon another daughter, she being under eighteen years of age, and that he had been convicted and had served a term in State’s prison therefor. All this evidence was under objection, was clearly incompetent and must have improperly influenced the jury. It is suggested that the defendant was clearly guilty of the offense charged, and, therefore, we should overlook errors that may have been committed on the trial and affirm the judgment. It is not for this court to determine the question of fact against the defendant. The defendant was not sworn upon the trial, but that fact should not be considered against him. The evidence of the complainant was not very satisfactory. It seems quite probable from the evidence in the case that she had had intercourse with other-men than the defendant, and even if the people were of a low degree of morals, it is not to be assumed or inferred upon inadequate evidence that they were so low as to be guilty of incest,1 which is the real crime charged, that he was desirous of such intercourse, and his daughter consented to it.

It is further suggested that the defendant has been in State’s prison now for some years, and under the rules of the prison will soon have completed his term, and for this reason it would be better to affirm the judgment and not subject him to a new trial and possible conviction and sentence again to prison. This suggestion leaves out of account that this conviction and judgment entered thereon is a disgrace to the defenedant, which, if improper, should be reversed and stricken from the records of the court, and the defendant is entitled to this relief from the court.

But beyond these suggestions I for one am unwilling to vote for affirmance of a judgment so clearly erroneous as this one is. A defendant, no matter how low he may be, is entitled to the protection of the law, and to his rights of personal liberty.

All concurred.

Judgment reversed and new trial ordered.  