
    Supreme Court—Appellate Division—Second Department.
    October, 1901.
    THE PEOPLE v. GEORGE GARNER.
    (64 App. Div. 410.)
    1. Rape—Indictment.
    The refusal of the court to compel the district attorney to make an election between the two counts of an indictment severally charging rape in the first and second degree, presents no ground for reversal when no request was made for a charge to that effect, and defendant was convicted of the main charge.
    2. Same—Evidence.
    The wife of a defendant charged with rape is competent to testify to confession made by him to her mother in her presence.
    Appeal by the defendant, George Gamer, from a judgment of the County Court of ¡Nassau county, in favor of the plaintiff, rendered on the 4th day of December, 1900, convicting him of the crime of rape in the second degree;
    George Wallace, for the appellant.
    James P. ¡Niemann, District Attorney, for the respondent.
   Hirschberg, J.

The complainant was t|he daughter of the defendant, a child fifteen years of age. The commission of the crime was proven by her direct evidence, and by the evidence of the farm hand Smith, and also by proof of defendant’s admissions made to others. Various errors in ruling are alleged, however.

It is alleged that the court erred in permitting the defendants wife to testify to his confessions. Assuming that it would he improper to permit a wife to testify to sueh confessions of guilt as privileged and confidential communications, it is a sufficient answer to this point to say that the court ruled upon the question in defendant’s favor and that the record discloses no testimony on the part of the wife of confession made to her by the defendant, excepting in answer to a question by the defendant’s counsel on cross-examination. She was allowed to testify to confessions made by the defendant to her mother in her presence, hut such evidence was clearly competent.

It is further insisted that the court improperly admitted evidence of the disclosure of the occurrence by the complainant to others long after the event. Whatever evidence of this character appears in the record appears to have been received without objection, and while in a proper case we might reverse a conviction for the reception of illegal evidence, although no exception was taken, nothing appears here except the fact that the child did make some disclosures. What she said was not testified to by any witness, and the defendant cannot be deemed to be prejudiced by proof of the undoubted fact! that some time after the commission of the crime his daughter complained of it and made a charge against him.

The refusal of the court to compel the district attorney to make an election between the two counts of the indictment presents no error requiring reversal. The first count charged rape in the second degree, and the second count charged assault in the second degree. It may be that on the authority of People v. Aldrich (33 N. Y. St. Rep. 790) no conviction could have been had under ‘the second count on the evidence herein. But as no request was made for a charge to that effect, and as the defendant was convicted of the main offense; the error which called for a reversal in the case cited, if it exists here, does not demand a similar' result. In that ease, under a like indictment, the defendant was convicted of the assault upon proof of the consummated rape, and it was held that he was convicted of a crime which was moti proven. Here the conviction was of the crime which was proven. The case of People v. Flaherty (162 N. Y. 532), cited by appellant, is not at all in point. There the prosecution was permitted to prove several offenses and tio make an election at the close of the People’s case. Here but one offense was proven, and while the indictment may have contained a count for an offense mot involved or embraced in the offense proved, and while such pleading may have been defective and demurrable, as the question was not properly raised, and the defendant has been convicted'of the offense committed, proved and charged, he cannot he said tio have been prejudiced in a legal sense.

The other points raised have been duly considered, hut none of them is deemed sufficient to demand a reversal of the judgment.

The judgment of conviction should he affirmed.

Woodward, Jbnks and Sewell, JJ., concurred; Goodrich, P. J., not sitting.

Judgment of conviction affirmed.  