
    Supreme Court—Appellate Division—Fourth Department.
    Nov. 1900.
    THE PEOPLE v. MARTIN E. BUTLER.
    (55 App. Div. 361; 100 St. Rep. 851.)
    Rape—Evidence of Virginity.
    The reception of testimony by a physician, on the trial of an indictment for rape, that he examined the person of complainant twenty months after the alleged intercourse took place and found she was not a virgin, offered for the purpose of corroborating the testimony of the prosecutrix as required by section 283 of the Penal Code, constitutes reversible error.
    Appeal by the defendant, Martin E. Butler, from a judgment of the county court of Oneida county in favor of the plaintiff, rendered on the 26th day of March, 1898, convicting him of the crime of rape in the second degree.
    On the 21st day of October, 1896, the grand jury of the county of Oneida indicted the defendant for the crime of rape in the second degree, alleged to have been committed in the town of Vernon in said county upon one Jennie E. Clinch on the 30th day of August, 1896, she then being under the age of eighteen years, to wit, the age of seventeen years. On said 21 st day of October, 1896, the defendant was arraigned upon the indictment and pleaded not guilty, and an order was made by the supreme court sending the indictment to the county court of the county of Oneida for trial. The trial commenced on the 28th day of February, 1898, and was concluded on the sixteenth day of March following, at which time the jury rendered its verdict finding the defendant guilty of the crime as charged in the indictment. Thereupon the judgment appealed from was entered, and on the 26th day of March, 1898, the defendant was sentenced to the State prison at Auburn for seven years and two months.
    J. I. Sc A. F. Sayles, for the appellant.
    Timothy Curtin, District Attorney, for the respondent.
   McLennan, J.

The record contains a great mass of evidence bearing more or less directly upon the question of defendant’s guilt.

Jennie E. Clinch, the prosecutrix, was called as a witness by the prosecution, and her evidence is chiefly relied upon to sustain the judgment of conviction. Much of the testimony given by her is of such a character as to cast suspicion upon its truthfulness, and is hardly consistent with many of the circumstances disclosed by the evidence.

After a careful examination of the entire evidence, while we are not fully satisfied as to the guilt of the defendant, we are of the opinion that it was of such a character as to require the question of defendant’s guilt to be submitted to the jury, and unless error was committed prejudicial to the defendant during the progress of the trial, we would not be disposed to reverse the judgment, especially in view of the fact that no motion for a new trial was made by the defendant upon the minutes of the court. It will, therefore, be unnecessary to refer in detail to the evidence or at all, except in so far as it may be essential to the proper understanding of the alleged grounds of error urged by the appellant.

As we have seen, the defendant was indicted for the crime of rape in the second degree, for having had sexual intercourse with the prosecutrix Jennie E. Clinch on the 30th day of August, 1896. She was called as a witness by the People and testified that such intercourse took place on that day. She also testified, under defendant’s objection, that the defendant first had sexual intercourse with her in July, 1895, and that it occurred frequently thereafter until the latter part of September, 1896, and after the date when the crime charged in the indictment is alleged to have been committed. For the purpose of corroborating the testimony of the prosecutrix, which is necessary under § 283 of the Penal Code, which provides: “No conviction can be had for abduction, compulsory marriage, rape or defilement, upon the testimony of the female abducted, compelled or defiled, unsupported by other evidence,” the prosecution was permitted to prove, under defendant’s objection and exception, by one Dr. Seymour that during the time of the trial, a year and eight months after the alleged crime was committed, he made an examination of the person of the prosecutrix and to state the results of such examination. The witness testified upon direct examination: “ I examined the genital organs with á special object of ascertaining whether she had ever had any interference with them; they did not have the appearance of the genital organs of a virgin. Q. Describe what you found. What reasons have you for saying they had not the appearance of the genital organs of a virgin ? * * * I examined the vagina; it was large and relaxed for a person of her age and size; the labia or external parts of the vagina were relaxed; the hymen did not appear; there were remnants of it apparent; the hymen was ruptured.”

On redirect examination of the witness the further question was asked by the district-attorney: “ Q. The conditions you found there upon your examination of this girl, all of them were compatible with the fact that she had had sexual intercourse? * * * A. They were.”

This evidence, and all of it, was objected to by the defendant’s counsel over and over again upon the ground that it was incompetent, improper, irrelevant and immaterial, and not connected in any way with August 30, 1896; and also upon the ground that it was confidential and privileged; that the privilege had not been waived, and that no foundation had been laid for the evidence. The objection in each case was overruled and an exception to the ruling of the court duly taken.

We think the reception of this evidence was error. The only legitimate purpose of the testimony was to corroborate the statement of the prosecutrix that the defendant had sexual intercourse with her on the 30th day of August, 1896. Did it, in the slightest degree, tend to establish that fact? The evidence objected to, if true, and if given all the force which can be legitimately claimed for it, simply established the fact that some time prior to the examination, which was twenty months after the alleged crime was committed, the prosecutrix had had sexual intercourse with some one. Whether six weeks before the trial or six years is in no manner indicated and could not be. Whether sexual intercourse was indulged in by the prosecutrix at or about the time of the commission of the alleged crime was not and could not be discerned by such examination, and it cannot be pretended that the evidence of the physician gave any information upon that proposition. Yet the inference is sought to be drawn from the evidence, and such was clearly the purpose in introducing it, that prior to the time of the trial, the prosecutrix had had sexual intercourse with some one, and, therefore, it is probable that the defendant had sexual intercourse with her twenty months before. The only fact as to which corroborating evidence was necessary or competent was the fact that the defendant had had sexual intercourse with the prosecutrix on August 30, 1896.

If the evidence objected to tended to prove that the defiled female had had illicit intercourse with some one at about the time when the crime was alleged to have been committed, it would undoubtedly have been competent under the decision of the Court of Appeals in the case of Armstrong v. People (70 N. Y. 38). In that case proof was admitted showing that the female seduced, at the time of the trial, was in the family way. The evidence was held to be competent, because in that case it appeared that her condition of pregnancy was such that she must have had sexual intercourse with some one at about the time the alleged crime was committed. In commenting upon the decision in that case Judge Peckham, in the opinion of the court in People v. Kearney, 110 N. Y. 188, 191, said: “ That case went to the extreme limit, as it seems to me, in the admission of such evidence. It might be slight, but, in the language of Folger, J., in that case, it was a fact not incompetent to be laid before the jury.”

In the case at bar the evidence had no such force or significance. It undoubtedly would have been competent for the defendant to have proved that the genital organs of the prosecutrix, at the time of the trial, were in such condition as to indicate that she was then a virgin, and if such testimony had been believed the defendant would have been exonerated. But the converse of the proposition by no means follows. The fact that at the time of the trial the prosecutrix was not-a virgin in no way casts suspicion or blame upon the defendant, because, as we have seen, it does not, in any manner, indicate when such condition first existed or who is responsible for it.

The bare statement of the proposition conclusively demonstrates its incompetency as evidence.

A person on trial for rape—offer to prove that the prosecutrix, twenty months after the commission of the alleged crime, is not a virgin for the purpose of corroborating her statement that she was raped by the defendant twenty -months before.

But further discussion on the question is unnecessary, in view of the decision of the court of appeals in People v. Kearney, supra, which, we think, is decisive upon the question here involved, and because the reasons assigned by the court for a reversal of the judgment of conviction in that case apply with even greater force to the case at bar.

In that case the defendant was indicted for seduction under promise of marriage, alleged to have taken place in July, 1885. Under objection and exception by defendant’s counsel the court permitted the prosecution to prove that in August, 1886, thirteen months after the alleged seduction, the prosecutrix was delivered of a child which was fully developed. The admission of the evidence was held to be error, and for such error alone the judgment of conviction was reversed. In that case the court said, per Peckham, J.: “ The materiality of this evidence as to the birth of a child could only have been claimed upon the ground that it tended in some degree to support the evidence of the prosecutrix upon one of the two points upon which such support was necessary, viz., the promise of marriage and the intercourse following upon the faith of it. * * * The birth of the child was in August, 1886, and the physician in attendance swore it was a fullgrown nine-months’ child, thus showing conception to have taken place as late as November, 1885, while the prosecutrix swore the seduction occurred on the fourth of the previous July. What support is given to the evidence of the prosecutrix that she was seduced under promise of marriage on thé 4th of July, 1885, by proving that .she was delivered of a child thirteen months thereafter, or in August,-1886? This fact simply proves that she had illicit intercourse with some one four months subsequent to the time when she swears that she was seduced under promise of marriage by the defendant. In the Armstrong case the evidence showed that''the female had had intercourse with some one at or about the very time she alleged she had it with the defendant. In this case it shows nothing of the kind. It neither shows or tends to show that she had any intercourse with the defendant at the time she swears she was seduced, nor does it show or tend to show that she had such intercourse with any one at or about that time. It is said that it is a most natural consequence of the seduction that the intercourse should have continued thereafter, as sworn to by the prosecutrix, and until it resulted in her pregnancy. That is very likely true, but it does not advance us a step in the way of proving that the intercourse did commence in July. If it did then commence; it may be admitted that it was very likely to have continued, but is it any, even the slightest, proof that it did then commence, by proving the birth of a child thirteen months thereafter ? In other words, is there any support given to the evidence of the prosecutrix as to the seduction by the defendant in July, 1885, by proof of this nature ? I think not. How can it be said to support her evidence ?

“ It does not tend to the support of her story that she had intercourse with the defendant on the 4th of July, 1885, under promise of marriage, because it does not tend to show that she had such intercourse at that time, or about that time, with any man.”

With equal force it may be said that the evidence of the physician in the case at bar does not tend to the support of the story of the prosecutrix that she had intercourse with the defendant on the 30th day of August, 1896, because it does not tend to show that she had such intercourse at that time, or about that time, with any man.

We think the evidence was clearly prejudicial to the defendant, especially when we consider that it was emphasized by the county judge in his charge to the jury. He said: “ It is not my duty to say to you whether the evidence of Jennie Clinch is supported or not. That is a question for you. But there is evidence in this case which, if believed by you, may be regarded as supporting her evidence. But it is a question for you to say whether it corroborates and supports her testimony, and if so, to what extent.

“ You have the evidence of the physician who testified to the physical condition of the complainant. While the conditions described by him may have been produced by other acts than sexual intercourse and by other causes, yet, if that evidence is believed and credited by you, it may be regarded as some evidence bearing upon that question.”

The crime charged in the indictment is a most atrocious one and one which most naturally tends to enlist the sympathies of all men, and, of course, of jurors, in favor "of the victim. In such cases where, as a rule, the accused has no weapon of defense, except his own uncorroborated denial, the courts should be extremely careful that no evidence of a tendency to excite or influence the resentment of jurors .and which does not tend to.support the evidence of the prosecutrix, or to connect the defendant with the commission of the crime, should be permitted to go to the jury.

The foregoing is substantially the rule laid down by the .court in People v. Kearney, supra, and the admission of the evidence in the case at bar clearly falls within its condemnation.

To say the least, a close question of fact was presented by the evidence, much of which was contradictory, and some of which disclosed a state of facts which is strange and unnatural. Under such circumstances, and considering the nature of the charge, the defendant was entitled to a trial conducted in strict conformity to the rules of law, at least in such manner as that incompetent evidence should not be placed in the balance against him. Such a trial, we are constrained to hold, was not had by the defendant in this case, because of the admission of the evidence herein commented on, and, therefore, the conclusion is reached that the judgment appealed from should be reversed.

All concurred.

Judgment and conviction reversed and case remitted to county court of Oneida county pursuant to section 547 of the Code of Criminal Procedure.  