
    Supreme Court—General Term—Fourth Department.
    December 26, 1895.
    PEOPLE v. DAVID G. ORR.
    (71 S. R. 169.)
    ' 1. Evidence—Seduction—Corroboration.
    Upon the trial of an indictment for seduction, the evidence required must be corroborative of the promise of marriage and the carnal connection and need not extend to the facts that the female seduced was of previous chaste character or unmarried.
    2. Same.
    Proof of circumstances legitimately tending to establish the material facts are sufficient to authorize a conviction.
    3. Same—Proofs of intercourse. 1
    The testimony of a physician that he examined complainant at a certain time and found her in a certain condition is admissible to corroborate her testimony as to the time when the alleged intercourse occurred.
    
      4. Same—Admission and declarations.
    Upon the trial of such indictment, the declarations of defendant in regard to the condition of the prosecutrix, and evidence that defendant tried to induce plaintiff to have an abortion performed, are properly admitted.
    Appeal from a judgment convicting defendant of seduction under promise of marriage. .
    Hoyt & Farrington, for appellant.
    B. J. Shove, Dist. Atty., for respondent.
   PER CURIAM.

The defendant was indicted and convicted of the crime of seduction under promise of marriage. The statute which defines and regulates that offense provides:

“A person who, under promise of marriage, seduces and has sexual intercourse with any unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both. No 'conviction can be had for the offense specified in section two hundred and eighty-four, upon the testimony of the female seduced, unsupported by other evidence.” Pen. Code, §§ 284, 286.

That the evidence of the complainant, if properly corroborated, was sufficient to justify the conviction of the defendant is unquestioned. But the defendant contends that the evidence of the complainant was not corroborated to the extent required by section 286, and, consequently, that the defendant should have been acquitted. It seems to be settled in this state that the evidence required must be corroborative of the promise of marriage and the carnal connection, and need not extend to the facts that the female seduced was of previous chaste character, or unmarried.1 Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 id. 644; People v. Kearney, 110 id. 188; 17 St. Rep. 165; Armstrong v. People, 70 N. Y. 38, 44. In the latter case it was also held that, as to the promise of marriage, the provision of the statute is satisfied by proof of circumstances which usually attend an engagement of marriage, and that as to the illicit intercourse, and the inducement® which led to consent, evidence of opportunities, and that the relations of the parties were such as indicated that confidence in and affection for the accused, on the part of the female, which rendered it probable that the act may have been done, are sufficient. See, also, People v. Gumaer, 80 Hun, 78; 61 St. Rep. 768, and Kenyon v. People, supra. Proof of circumstances, legitimately tending to establish the material facts are sufficient to authorize a conviction. People v. Plath, 100 N. Y. 590.

'Without attempting to state the evidence in detail which was corroborative of that given by the complainant, a careful study of the proof contained in the appeal book leads us to the conclusion that under the authorities in this state bearing upon the question 'the evidence of corroboration was sufficient to justify the submission of the case to. the jury. On the trial, after the complainant had testified that the offense was committed on February 4, 1894, and that when committed her vagina was lacerated, that there wias a flow of blood, and that Dr. Kinne had treated her, the people called Dr. Kinne as a witness, who, under the defendant’s objection and exception, testified to having examined the complainant, either late in. the winter or early in the spring of the year 1894, and that such examination revealed a wounding .and inflammation of the soft tissues, a swelling and larceration of the mucous membrane of the passage of the vagina, with evidences of bleeding, and that he prescribed for her at that time. We think this evidence was-admissible a,s showing a circumstance which tended to corroborate the evidence of the complainant as to illicit intercourse, and that the defendant’s objections and exceptions were not well taken.

Dr. McKenna was also called as a witness for the people, and after testifying that he knew thq, complainant, he testified that hé first met her at his office between the 20th and 25th- of October, 1894. He was then asked:

“Yon may state whether or not you made an examination of her at that time. (Objected to as incompetent, improper, immaterial, and hearsay, and too remote and in no sense a corroboration of any fact to be established in this case. Objection overruled. Exception taken by defendant’s counsel.) A. Yes, sir. I saw this defendant, David Orr, I think the next day after that. Q. Now, what occurred at that time, doctor? Go right on and tell what he said and what you said. (Objected to on the same grounds, incompetent, inadmissible, improper, and irrelevant. Objection overruled. Exception taken by defendant’s counsel.) A. He came to my office and wanted to know if there was a lady up there the previous day. I said there was, and he said he wanted to know if she was in a family way. I said she was about four months and a half along. He said: ‘Are you positive? ’ I said, ‘I am pretty sure of it.’ He then said: ‘That leaves me in a pretty fix. I would like to get help out of it.’ ,1 asked him if he saw the girl the previous, evening. He said he did. I asked him if she agreed to everything he said, and he "said she did. ‘Well,’ I said ‘you had better see the gir.1 again.’ So 'he left my office.”

The defendant contends, that the admission of this evidence was error, and cites the case of People v. Kearney, 110 N. Y. 188; 17 St. Rep. 165, as sustaining that contention. In that case the defendant was indicted for seduction, and the complainant testified that the offense was committed in July, and that the defendant had frequent intercourse with her until December. The prosecution was permitted to show, under objection and exception, that she had a child in August of the-next year. This was held error, as it did not tend to show illicit intercourse thirteen mouths before the birth of the child. That case is very clearly distinguishable from this. The purpose of the evidence in that case was only to show the fact that the complainant was pregnant in November, while the seduction took place in the preceding July. If the evidence objected to in the case at bar had been only to the effect that the-complainant was pregnant in October, the doctrine of the case cited might apply. In this case no such evidence was in fact admitted. The proof here was that the witness exámined the complainant, and that the next day he saw the defendant and had a conversation with him. The doctor did not even testify that complainant was pregnant. The -testimony which he gave was of a conversation between him and the defendant, in which he told the defendant that the lady who visited him on the previous day, who was the complainant, and about whom the defendant inquired, was in the family way, four and one-half months along. To that statement the defendant replied: “That leaves me in a pretty fix. I would like to get help out of it.” That the evidence of this conversation was admissible we have no doubt. Its admission was not in conflict with the decision in the Kearney Case. We ‘think the exception was not well taken.

Nor do we think the court erred in admitting the evidence of the prosecutrix and Dr. McKenna tending to show that the defendant tried to induce the former to have an abortion performed. The proof was of conversations with the defendant in regard to the condition of the prosecutrix, and included a proposition by Mm that an abortion should be procured. This was, we think, so far a part of the transactions between the prosecutrix and the defendant as to render the conversation between them admissible. In tended, at least, to corroborate the statement of the prosecutrix as to the relations wMch existed between herself and the defendant and show that he sought to prevent publicity of her condition which resulted from a course of action commenced by the perpetuation of the crime charged. People v. Murphy, 135 N. Y. 450; 48 St. Rep. 426; Hope v. People, 83 N. Y. 418, 427; Pierson v. People, 79 id. 424.

We have carefully examined all the remaining exceptions to which our attention has been called by the appellant’s brief, but have found none that would justify a reversal of the judgment, or that require special discussion. It follows that the judgment should be affirmed.

Judgment of conviction of the court of sessions of Onondaga county, and order appealed from, affirmed. After the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Onondaga county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.

NOTE ON “CORROBORATING EVIDENCE IN CASE OF SEDUCTION.”

Supporting evidence, upon trial of indictment for seduction, under promise of marriage, is required only as to promise of marriage and carnal connection. Armstrong v. People, 70 N. Y. 43; Kenyon v. People, 26 id. 203; Boyce v. People, 55 id. 644; People v. Kearney, 110 id. 191: 17 S. R. 165; rev’g 47 Hun, 130; 13 S. R. 264; People v. Orr, 92 Hun, 199; 71 S. R. 169.

Such evidence need be only such as the character of these matters admits of being furnished. Armstrong v. People, 70 N. Y. 43; Kenyon v. People, 26 id. 203; Boyce v. People, 55 id. 644.

Supporting evidence is not required upon the questions of the previous chaste character of the female seduced and that she was unmarried. People v. Kearney, 110 N. Y. 191; 17 S. R. 165; rev’g 47 Hun, 130; 13 S. R. 246; People v. Orr, 92 Hun, 199; 71 S. R. 169.

Direct or positive additional evidence of any of the material facts, constituting the offense, is not necessary. Boyce v. People, 55 N. Y. 646.

Testimony of an additional witness is not required. People v. Kenyon, 5 Park. 254.

Facts and circumstances surrounding the transaction and otherwise established in the case, may supply the corroborating evidence.. People v. Kenyon, 5 Park. 254; People v. Orr, 92 Hun, 199; 71 S. R. 169.

Evidence of intercourse by defendant with prosecutrix subsequently to time of alleged seduction, is admissible. People v. Kearney, 110 N. Y. 194; 17 S. R. 165; rev’g 47 Hun, 130; 13 S. R. 246.

When evidence of the birth of a child is incompetent. People v. Kearney, 110 N. Y. 194; 17 S. R. 165; rev’g 47 Hun, 130; 13 S. R; 246; see Armstrong v. People, 70 N. Y. 38.

Question whether the female is sufficiently supported to justify a conviction, is for jury. Crandall v. People, 2 Lansing, 309.

Consent to sexual intercourse upon conditional promise of marriage. People v. Hustis, 32 Hun, 58; Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 id. 644; People v. Van Alstyne, 144 id. 361; 63 S. R. 66; rev’g 78 Hun, 509; 29 Supp. 542; People v. Duryea, 81 Hun, 390; 63 S. R. 131; 30 Supp. 877.  