
    Supreme Court-General Term-Fifth Department.
    June 23, 1892.
    PEOPLE v. THOMAS McKEON.
    (46 St. Rep. 69; 64 Hun, 504.)
    1. Evidence—Rape—Corroboration.
    Testimony, upon an indictment for rape, that the defendant was seen going to and away from the house of the complainant where she was alone, at or about the time when the crime was committed, and of immediate complaint on her part, accompanied by an appearance of. tears and distress corresponding with her story, is sufficient corroboration of her testimony to warrant the submission of the case to the jury.
    2. Same.
    Evidence of an attempt on the part of defendant to escape from - the jail where he was confined awaiting trial, while it is conceded by the district attorney that he was at the same time held on a bench warrant issued on an indictment charging him with another crime, is incompetent.
    3. Appeal—Harmless error.
    Where, on a criminal trial, incompetent evidence is received against the defendant, the judgment will be reversed unless the error is shown conclusively to be innoxious.
    Appeal from a judgment of the court of sessions of Cayuga, county, convicting the defendant of the crime of rape, and from an order denying the defendant’s motion in arrest of judgment and for a new trial, on the minutes of the court.
    H. Greenfield, for appellant.
    A. P. Rich, for respondents.
   DWIGHT, P. J.

The defendant was convicted mainly, as was natural, on the testimony of the woman who was alleged to have been the subject of the crime. The supporting testimony was slight, but, we think, sufficient to warrant its submission to the jury.' It consisted, for the main part, of testimony by other witnesses that the defendant was seen going to and away from the house of the complainant, where she was alone, at about the time when, as she testifies, the crime was committed, and, by one witness of immediate complaint on the part of the complainant, accompanied by an appearance of tears and distress corresponding with her story of the wrong to which she had been subjected. We do not dwell on this branch of the case, because there is one exception in the record which we think must be fatal to the judgment.

The People were permitted, under the objection of the defendant, to give evidence of an attempt on his part to escape from the jail where he was confined awaiting trial; while it was conceded by the district attorney that he was at the same time held on a bench warrant issued on an indictment charging him with another crime; what crime is not stated. We think it was error under these circumstances to admit the testimony objected to. Such evidence is not of a very direct or persuasive character at the best. It has been held competent as tending to show consciousness of guilt. People v. Petmecky, 2 N. Y. Crim. 451. But where the defendant is held under two distinct charges, how can the fact of an attempt to escape be said to raise any pre sumption of guilt of either of the crimes charged rather than of the other? It is plain that the motive to escape may have been furnished wholly by his fear of prosecution for the other crime with which he was charged, and, thus, the act proved have been entirely consistent with consciousness of innocence of the crime in question. Such being the ease, the evidence was clearly incompetent, and yet it may have been decidedly prejudicial to the def endant.

The rule as to the effect of the admission of incompetent evidence is well stated by Alen, J., in the case of Coleman v. The People, 58 N. Y. 555. He says: “It seems that on a criminal trial, especially where incompetent evidence is received against the accused, the judgment will be reversed, unless the error is shown conclusively to be innoxious. It is not enough that the court sitting in review are of the opinion that the result may, and probably would, have been the same had the objectionable evidence been excluded.”

There were other exceptions in the case which might merit attention, but as none of the questions raised by them is likely to arise on another trial, they need not be examined here. For the error specified, the judgment should be reversed, and a new trial granted.

Judgment and conviction of the court of sessions of Cayuga, county reversed, and a new trial granted.

MACOMBER and LEWIS, JJ., concur.  