
    SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT,
    April, 1914.
    THE PEOPLE v. FREDERICK MOSER.
    (163 App. Div. 859.)
    Seduction—Evidence.
    Complainant claimed that defendant seduced her on the promise of marriage, but was uncorroborated as to time and place when the act was done, but the testimony of three witnesses showed that on the evening named complainant was in their company on a trolley ride. New trial granted. *
    Appeal by the defendant from an order of the County Court of Queens county, entered in the office of the clerk of said county on the 23d day of November, 1912, denying his motion for a new trial, and from a judgment of said court, rendered on the 29th day of November, 1912, convicting him of the crime of seduction under promise of marriage.
   Per Curiam :

Unaided by a brief for the respondent, promised after delay but not forthcoming, we have considered with care the evidence. It appears that as early as Christmas, 1911, the complainant and defendant were engaged to be married, and that at some time they had sexual intercourse resulting in the complainant’s pregnancy. The indictment charges that on or about July ninth the defendant seduced her “ by means of a promise of marriage.” The complainant fixes the offense on the 9th day of July, 1912, at about eight p. m., at her house, and denies intercourse at any other time. The difficulty is that the complainant is not only uncorroborated as to the time and place when the act was done, but the testimony of the witnesses Loeffler, Lemmo and Mrs. Moser shows that the complainant on that evening was in their company on a trolley ride. The complainant’s mother testified to a conversation with the defendant, but did not make definite the date of the occurrence to which her conversation with defendant refers, and the testimony of the other witnesses is not more helpful. This condition of the evidence requires a new trial, and this court expects that in the interests of justice it will be had promptly. While there was no exception, the court’s charge at folio 364 seems to take from the jury a fact that it was its province to determine. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred. Judgment of conviction of the County Court of Queens county reversed and new trial ordered.  