
    SUPREME COURT—APP. DIV.—THIRD DEPT.
    Nov. 10, 1909.
    THE PEOPLE v. RUSSELL S. COLE.
    (134 App. Div. 759.)
    Rape—Corroboration of Complaining Witness.
    The testimony of a complaining witness in a prosecution for rape is not corroborated by evidence that she became pregnant and that the defendant had opportunities to commit the crime.
    Sewell, J., dissented.
    Appeal by the defendant, Russell S. Cole, from a judgment of the County Court of Chemung county in favor of the plaintiff, rendered on the 30th day of September, 1908, convicting the defendant of the crime of rape in the second degree, and also from an order made on the 5th day of October, 1908, denying the defendant’s motion for a new trial.
    
      George R. Hemenway and Michael Danaher, for the appellant.
    
      Henry L. Bogart, District Attorney, for the respondent.
   Chester, J.:

The defendant has been convicted of the crime of rape in the second degree by the testimony of the complaining witness, who was an infant of the age of seventeen years, and under the age of consent; the testimony of a physician that she was pregnant, and of several other witnesses that the defendant had opportunities for the commission of the crime at the date alleged in the indictment, February 1, 1908.

The only question for our determination is as to whether there was any corroboration of the testimony of the complaining witness. She lived with her father and grandmother and had known the defendant all her life. He was about sixty-six years of age. She testified that she had sexual intercourse with him for a number of years, beginning when she was about twelve years old, and that the last time was the last of January or the first of February, 1908, at her house one afternoon about three o’clock; that at that time the defendant stayed in the house about an hour, and that no one was in the house except the defendant and herself. She told nobody about her relations with the defendant until she first told her father the latter part of June, 1908, which was at a time when her condition was becoming apparent and her father mistrusted her. There was much proof that the defendant was in the habit of calling at the house frequently, many times when her father was there and many times when he was not. The proof is that he also called there after she told her father of her condition, but that the father who was present did not mention the matter to him. He was there once or twice after that and visited with the grandmother. He had also done work in the house painting or varnishing for the grandmother. There is no proof other than that of the complaining witness of any familiarity of the defendant with her, nor that at the time of said alleged offense, he was in the house alone with her. The fact that she was pregnant was shown by her testimony and that of a physician' who examined her, but the physician’s evidence was not corroborative of the plaintiff’s testimony against the defendant. It simply proved that she had had sexual intercourse with some man. (People v. Robertson, 88 App. Div. 198.)

Section 283 of the Penal Oode, which was in force at the time of this trial, provided that No conviction can be had for . . . rape . . . upon the testimony of the female . . . defiled, unsupported by other evidence.” The authorities hold that under this section the corroborative evidence must be of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime, ‘and the corroboration must extend to every material fact essential to constitute the crime. (People v. Page, 162 N. Y. 272.)

There appears no evidence in this case aside from that of the prosecutrix to connect the defendant in any way with the commission of the crime, and the case is devoid of any sufficient evidence in corroboration of her evidence as to the material facts essential to constitute the crime, and for these reasons the conviction cannot stand.

The judgment of conviction is, therefore, reversed and a new "trial granted.

All concurred, except Sewell, J., dissenting.

Judgment of conviction reversed and new trial granted.  