
    The People, Resp’ts, v. Owen H. Loftus, App’lt.
    
      Supreme Court, General Term, Fourth Department,
    
    
      Filed December 6, 1890.)
    
    1. Rape.
    Evidence insufficient to prove the commission of the crime of rape.
    2. Same—Evidence—Corroboration op complainant.
    Evidence that complainant disclosed to her sister the fact that a rape had been committed upon her and of the fact that at the time of such disclosure she was pregnant and hada miscarriage, is incompetent to corroborate her testimony when such disclosure t^ok place more than a year after the alleged commission of the offense.
    Appeal from a judgment entered upon the verdict of a jury .at the sessions in Broome county. The verdict found the defendant “ guilty of assault in the second degree ” after trial in that court upon an indictment charging the defendant with having committed a rape at the town of Windsor, Broome county, on the 31st day of January, 1886, upon one Mary A. Madden, she being a female, not the wife of the defendant, of the age of twenty-three years at the time of the alleged offense; also an appeal from an order denying a motion on the ground that the verdict was against the weight of evidence, and on the'merits and on the exceptions taken during the trial. The defendant was called •as a witness, and under oath testified that he was not guilty of the offense charged in the indictment.
    
      Edmund O' Connor, for app’lt; George B. Curtiss, disk att’y, for vesp’ts.
   Hardin, P. J.

Complainant testifies that she first met the defeudant at Starrucca, Pa,, about seven miles from her home, on the 1st day of January; 1886, being then introduced to him ata dance; .and that she accompanied him on the 29th of January to another dance at Susquehannah, which was on Friday, and that he took her to her home on Saturday morning; and that on the 31st of -January, Sunday, he drove to her house and asked her to take a sleigh ride with him, and that they drove from her house to Windsor, Broome county, and arrived there about four o’clock in the afternoon and went to Montgomery’s hotel and entered the parlor ; that she had a glass of wine with .him and sat in the dining room By the fire for a while, and then she adds, viz.: “We went up stairs; we went into a room ; there was a bed in it; he locked the door and removed the key and put it in his pocket, I think ; then he took off both his coats and his hat I think, and then he took hold of me and threw me on the bed and put his hand over my mouth; then he committed an outrage on me.” She says that after remaining there a while they were interrupted by a rap at the door, and they put their things on and went into his sleigh together and went to another hotel in the town about a half a mile distant therefrom and remained there a while and then left that hotel; he then drove her in the sleigh some twelve miles to her home and entered the house, and that her people were there, and a supper was prepared, and they took the same together, and that he came to see her subsequently on numerous occasions.

In speaking of the transaction at Montgomery’s hotel in her cross examination she said: “I first told of this transaction I think in 1887. I told my sister of this rape before he was married. This complaint I made in Pennsylvania was simply for fornication and he plead guilty and was fined fifty dollars. I told my sister about it, my oldest sister, told her about it in September, 1887, after that time I had said nothing to her about it My sister was the only one to whom I had ever charged this defendant of raping me until after I had made this complaint in this county. I had connection twice with him, that is all I had connection with him once down at his own house, his mother’s house. I went down there to attend a dance, had it with him down there. I did have connection with him at the Cascade hotel once. ” She testifies that he came to her house to visit her about a week after the occurrence at the Windsor hotel, and she also testified : From that tipie up until September I saw him frequently. He called at our house frequently to see me the following summer. I went to Forest City with my sister in the spring of 1887, in April. During the summer of 1886 and winter of 1886 and 1887, I was keeping company with Loftus. My sister is the first one that I told of this trouble with Loftus.” She testi"fies that at the time she told it to her sister she was residing in Forest City with her sister. After the evidence which we have already referred to was given, the People, in the course of her redirect examination, asked her, viz: “ What occurred about the time you told your sister ?” This was objected to as immaterial and incompetent; as not in the presence of the defendant and it cannot be evidence against him. To that objection the counsel for the People stated what he expected to prove by the witness; the objection was renewed; it was overruled and the defendant took an exception; and thereupon the following question was propounded; “You may state what occurred at Forest City in connection with how you happened to tell your sister ?” The objections were again renewed and overruled and the defendant again excepted, and thereupon the following' question was put to the complainant “Go on and state what occurred at Forest City?” A. “On the night of the 7th of September, or the morning, the house where we lived in was burned down and I jumped out of a window twenty-six feet and on the following night I had a miscar-j riage, and I told my sister. I told her I would need a doctor, and, I told her all about what happened at Windsor. Loftus did not come to see me after I had this miscarriage.” Q. “ How long were you sick after that ?’’ Objected to; exception taken, and witness allowed to answer.

We think the evidence was improperly received; the disclosure was too remote from the alleged offense to be competent as corroborative evidence of the complainant at the time that the crime of rape had been perpetrated' .upon her. People v. O'Sullivan, decided in this department in 1887, and affirmed in the court of appeals in 104 N. Y., 481; 5 N. Y. State Rep., 703 ; Baccio v. People, 41 N. Y., 265; People v. Clemons, 37 Hun., 580; Higgins v. The People, 58 N. Y., 377.

The fact that the complainant was at the time she was at Forest City pregnant, seems to have no relevancy or connection with the alleged crime; it may have improperly influenced the minds ■of the j ury in considering the questions legitimately before them. Anderson v. Rome, W. & 0. R. R. Co., 54 N. Y., 334.

A careful perusal of the evidence has not lead us to the conclusion that the principal crime charged in the indictment was committed. The case made by the evidence to support the principal charge is not established any more satisfactorily than was the charge in The People v. Morrison, 1 Park. Crim., 625; The People v. Hulse, 3 Hill, 316.

Under such circumstances we are not at liberty to disregard the erroneous ruling on the ground that it did not work prejudice to the defendant; we are of the opinion that a new trial should be ■ordered.

Conviction, orders and judgment reversed, and a new trial ordered in the court of sessions of Broome county, to which court the proceedings are remitted.

Martin and Merwin, JJ., concur.  