
    The People of the State of New York, Respondent, v. Malcolm Dickerson, Appellant.
    
      Rape—where recollection as to age is refreshed by a certificate of birth, the certificate should be put in evidence—erroneous charge as to discrepancy in testimony.
    
    The only question, seriously contested upon the trial of an indictment for rape in the second degree, alleged to have been committed on March 9, 1899, was whether the complaining witness was under the age of eighteen years at the time the offense was committed, and the. only evidence offered by the prosecution upon this point was that of the complainant and her mother. The complainant apparently did not know her exact age. Her mother, who had stated two months before the trial, while testifying before a police magistrate, that the complainant was bom March 16, 1883' stated on the trial that the date of her birth was March 16, 1882, explaining the discrepancy by saying that since the examination before the magistrate she had procured from England a certificate of the birth of the complainant. This certificate was exhibited to her while she was testifying, but not to the defendant’s counsel, nor was it offered in evidence.
    
      Held, that the People should have introduced the certificate in evidence.
    In such a case it is error for the court to charge, “As to this one question which is before you, the. age of the girl at the time of the perpetration of this act, you have the direct testimony of her mother. * * * A mother surely knows, of her own knowledge, the age of her child. The mother in this case testifies that her daughter was bom in 1882. It appears that in the police court she swore that the girl was born in 1883. * * * When asked to explain this difference, she was allowed to explain that she had sent for and had received a certificate which led her to remember that her daughter was bom in 1882 and not 1883. * * * Had she left her testimony as it was before the police court and taken no measures to correct it, and had she come .here and sworn to the same thing, without having taken pains and informed herself as to the accuracy of her recollection, it would be a proper circumstance for you to consider in coming to a conclusion how far this difference between her testimony there and her testimony here affects her credibility as to a fact supposed to be absolutely within her knowledge.”
    Van Brunt, P. J., and Rumsey, J., dissented,
    Appeal by the defendant, Malcolm Dickerson, from a judgment of the Court of General Sessions of the Peace in and for the. city and county of New York in favor of the plaintiff, rendered on the 31st day of May, 1899, convicting him of the crime of rape in the second degree, under subdivision 5 of section 278 of the Penal Code.
    
      
      Maurice Meyer, for the appellant.
    
      Charles K le Barbier, for the respondent.
   McLaughlin, J.:

The defendant was convicted of the crime of rape in the second degree, under subdivision 5 of section'278 of the Penal Code, and sentenced to be imprisoned in “ the State Prison at hard labor for the term of seven years and six months,” and from this judgment he has appealed.

At the trial the only question which was seriously contested was whether the complaining witness,. Norah Saville, at the time when the defendant was alleged to have committed the, crime of which he was convicted, was under the age of eighteen years. If the testimony introduced justified the jury in finding that fact, and no error was committed by the trial court, then the judgment of conviction must be affirmed, because there is an abundance of evidence to establish the other necessary elements of the crime. The crime is alleged to have been committed on the 9th of March, 1899. The defendant was arrested and a preliminary, hearing had before a police magistrate on the 13th of March, 1899, and the trial had on the 16th of May, 1899. These dates are important and should be kept in mind. The People, to establish the age of the complainant, produced two witnesses, the complainant herself and her mother, Margaret Reisbeck. The complainant, referring, to the time the crime was alleged to have been committed, testified as follows : “ Q. How old were you at that time ? A. I was sixteen. Q. When were you sixteen ? A. I was sixteen years on the 16th of March. Q. 1898? A. 1898, Yes, sir. Q. The 17th of March ? A. Yes.” She admitted that she testified before the police magistrate on the thirteenth of March that she was only fifteen years of age; that she so testified because her mother told her she was only fifteen, but that since that time she had ascertained she was in fact sixteen; that she knew this was her correct age because, to use her own words, “ I got my certificate ; ” she also admitted that she had many times stated to her cousin, Emily Mills, that she was eighteen years of age, and that when she made such statements she believed them to be true, because, to again use her own words, My aunt had a girl about the same age, and my aunt said I was eighteen.”

It is perfectly obvious that the witness did not know how old sh& was, and that when she testified that she was sixteen on the 16th or 17th of March, 1898, she did so, relying either upon what her mother had told her, or else upon the certificate to which she referred. It is equally obvious that the jury could not have obtained from her testimony, taking it all together, any correct information as to her age. The finding, therefore, that the complainant was under the age of eighteen years on the 9th of March, 1899, must be sustained,, if at all, upon the testimony of Margaret Reisbeck alone. She testified that the complainant was her daughter; that she was born in. Discard, Eng., on the 16th of March, 1882; she also admitted that, she testified before the police magistrate on the thirteenth of March.' that the complainant was born on the 16th of March, 1883, and in answer to an inquiry as to why she changed the date of birth of the complainant, she stated that she was mistaken in what she had testified to before the police magistrate; that after she gave that testimony she sent to and obtained from England a certificate of th&birth of the complainant, from which she recognized her mistake. The certificate to which -she referred was produced-and exhibited toiler while she was testifying. It was not, however, shown to defendant’s counsel, nor was it introduced in evidence, and the record, before us is silent as to what it contained, by whom it was signed, whether by án individual or an official, or whether it was authenticated in any way whatever.

We have, therefore, to sustain this conviction, the testimony of one witness, unsupported and uncorroborated by other evidence. Not only this, but the testimony of a witness who two months before^ testified that the complainant was born on the 16th of March, 1883,. instead of on the 16th of March, 1882, and when she gave that testimony either did not know the age of the girl or else falsely stated the date of the birth — a witness who stated that she made a mistake when she gave the date of birth as March 16, 1883, because-subsequent thereto she had obtained a certificate of birth of the girl,, from or by reason of which she was enabled to state the correct" date. It is apparent, therefore, that the jury might have found, that at the time of the trial she had no knowledge as to the correct age of the complainant, except such as was derived from the certificate to which she referred. The crime is a serious one and the* statute expressly provides that a conviction for the commission of it ■cannot he had upon the testimony of the complaining witness, unsupported by other evidence. (Penal Code, § 283.) And while there is nothing in the statute to prevent a conviction upon the unsupported testimony of one witness other than the complainant, we are, .however, of the opinion that a conviction under such circumstances ■ought not to be had, unless the testimony of that witness is highly satisfactory, which cannot be said of the testimony of the witness Reisbeck. And while we do not care to rest our judgment of reversal upon this alone, it is adverted to to show how slight the evidence is, as to age, upon which this conviction was obtained. Considering the fact that the witness Reisbeck must have based her testimony as to age largely upon the information derived by her from the certificate of birth, which she had in her possession at the time ■of the trial, we think the People should have introduced the certificate in evidence. (People v. Ragone, 54 App. Div. 498.)

In the Ragone case it appeared that a witness at the time of the trial had in her possession a certificate as to the birth of the complainant. The certificate was not introduced in evidence, and Mr. Justice Rumsey, delivering the opinion of the court, referring to that fact, said: That the certificate of birth in which the precise time of her birth was stated might have been presented to them by the district attorney and that he had not done so. Where the matter of the age was so important, and evidence bearing upon it might have.been presented to the jury, the defendant was entitled to Rave all the testimony, not only that against him but that in his favor, presented to the jury and considered by them before he was convicted.” We there reversed the judgment of conviction, because the trial court, among other things, refused to charge that the jury might take into consideration, as bearing upon the question of age, the absence of the certificate of birth. In the case now before us, the jury’s attention was not called to the fact that they had a right to consider the appearance of the complaining witness in determining her age, nor that they had a right to consider, as bearing upon that question, the non-production of the certificate of birth. We think both of these facts- should have been called to their attention.

Finally, we think the judgment, of conviction must be reversed for errors in the charge. The trial court, referring to the question of age, said: “ As to this one question which is before you, the age of the girl at the time of the perpetration of this act, you have the direct- testimony of her mother. * * * A mother surely knows, of her own knowledge, the age of her child. The mother in this case testifies that her daughter was horn in 1882. It appears that in the police court she swore that the girl was born in 1883. * * * When asked to explain this difference,, she was allowed to explain that she had sent for and had received a certificate which led her to remember that her daughter was born in' 1882 and not 1883. * * * Had she left her testimony as it wUs before the police court and taken no measures to correct it, and had she come here and sworn to the same thing, without having taken pains and informed herself as to the accuracy of her recollection, it would be a proper circumstance for you to consider in coming to a conclusion how far this difference between her testimony there and her testimony hére affects her credibility as to a fact supposed to be absolutely within her knowledge.” This was error. That this witness knew of her own knowledge the age of her child, the complainant, is not supported by'the evidence, and except for this instruction the jury might have found that she did not know the age of the complainant and that the only accurate knowledge she had on that subject was derived from the certificate which someone had sent to her. This is apparent from the fact that she did not know the age when she testified before the police magistrate, and that she admitted that she changed the date of birth from information contained in the certificate ?

Nor was the statement to the effect that, if this witness had not taken measures to correct the testimony she gave before the police magistrate, the jury might consider the difference between the testimony that she gave there and the testimony she gave on this trial as bearing upon her credibility, a correct statement of the law. This was equivalent to say that, having taken measures to .correct it by obtaining the certificate of birth, the jury could not consider the difference in testimony given before the police magistrate and on this trial as bearing upon her credibility. The jury not only had a right, but it was their duty, to consider it. They were bound to consider all of the testimony in the case, for the purpose of determining the credibility of the witnesses in order that they might ultimately correctly determine the guilt or innoóence of the accused.

We are of opinion that justice requires that there should be anew trial. The judgment of conviction, therefore, is reversed and a new trial ordered.

O’Brien and Hatch, JJ., concurred; Van Brunt, P. J., and Rumsey, J., dissented.

Van Brunt, P. J. (dissenting):

It seems to me that this conviction should be affirmed. The difference in age testified, to by the mother was entirely immaterial. There were no exceptions which raised any questions in respect to the same and the certificate had been only used for the purpose of refreshing recollection and could not be competent evidence.

It seems to me that the reversal in this case is based upon the ■ heavy sentence which was imposed and not upon any error contained in the record.

Rumsey, J., concurred.

Judgment reversed and new trial ordered.  