
    David Austin, Respondent, v. Frank Barker, Appellant.
    
      Seduction — claimed to have been accomplished by putting the victim in a hypnotic condition — proof should be given showing that it is possible to create such a condition.
    
    Upon the trial of an action for the seduction of the plaintiff's daughter, who was delivered of a fully-developed child in August, 1901, the only evidence tending to show that the defendant had had improper relations with the plaintiff’s daughter was given by the daughter herself. She .testified that the improper relations commenced October 30, 1900, and continued until January 1, 1901; that all the improper acts occurred in,her father’s house in a room which was separated by an ordinary door from a room in which her mother or father usually sat. In speaking of the first of these occasions she testified that the defendant made an improper proposal to her which she indignantly rejected; that they then sat and talked a few minutes, after which the defendant forcibly took her and placed her upon a couch and accomplished his purpose; that she resisted and struggled, but did nothing to attract the attention of her parents, one or both of whom were in the adjoining room.
    The defendant denied his guilt, and gave testimony tending to show that he was at other places on some of the occasions when the .plaintiff claimed that he was with his daughter. The defendant also testified that although he lived near the plaintiff no suggestion that he was responsible for the condition of plaintiff’s daughter was made until many weeks after the birth of the child.
    The plaintiff’s daughter, when under examination by the defendant’s attorney, testified that she was entirely unconscious of defendant’s various acts of relation with her at the various times when the same were occurring; that she did not know and was unaware that they had occurred during the entire term of her pregnancy and down to a period of several weeks after the birth of her child; that upon the first occasion of improper conduct she simply realized and understood what was taking place up to the time the defendant placed her upon the couch; that in October, 1901, she Was visited by the plaintiff’s attorney, and as the result of What then occurred her mind was so influenced and awakened that it grasped a recollection or consciousness of defendant’s acts with her in the fall of 1900, so that from that time on down to and including the trial she had a present knowledge and recollection that the defendant had committed with her acts resulting in her seduction and childbirth.
    It also appeared upon the trial that during the period in 1900 under review the complainant had made entries in a diary which mentioned the defendant and contained references which were assumed to relate to and be based upon his visits to her and various results flowing therefrom. Subsequently she had no consciousness of having made these entries, but upon the occasion of the visit of the attorney aforesaid, and without knowing it, she procured the diary and gave to him various of these entries. After this visit she also became aware of having made the entries in the diary at the times of the various occurrences therein referred to.
    The plaintiff's daughter testified that defendant hypnotized her and so made her unconscious of his unlawful acts with her at the time they were occurring, and that this Condition of unconsciousness thereof continued until the plaintiff's attorney visited her, nearly a year afterwards, and again placed her in a hypnotic condition, through and by means of which her consciousness was so restored that it seized hold of events of which she had theretofore been unconscious.
    
      Held, that the explanation given in behalf of the plaintiff’s case was opposed to ordinary experience and knowledge;
    That if the plaintiff relied upon some science and theory hot generally known or understood, he should have introduced competent evidence tending to sustain the probability or possibility of the existence of what he claimed;
    That, as he had not done this, the evidence that the plaintiff’s daughter had been in a hypnotic condition at certain times in the year 1900 whereby she was made unconscious, and again in 1901 whereby she was made conscious, of certain events, should be rejected;
    That, with this evidence out of the case, there was not sufficient evidence left therein to sustain a verdict in favor of the plaintiff.
    Appeal by the defendant, Frank Barker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 30th day of March, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 7th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      L. M. Martin and Thomas S. Jones, for the appellant.
    
      D. F. Searle, for the respondent.
   Hiscock, J.:

This action was brought by plaintiff to recover damages claimed to have been, suffered by reason of the seduction of his daughter, Edith Austin, by the defendant.

Plaintiff with his family, including said daughter, and the defendant resided upon nearby 'farms in' one of the towns" of O.nei'da county. The daughter and the defendant had been schoolmates and. acquaintances for many years. In August, 1901, the daughter, being unmarried, gave birth to a child of full development. She was at that time about twenty-two years of age and the defendant was of about the same age. It was claimed upon the trial that upon Various dates commencing upon October 30, 1900, and extending to about January 1, 1901, the defendant had had improper relations with the daughter which resulted in the subsequent' childbirth. The only evidence directly tending to prove the unlawful acts was given by the daughter. . She testified that they all occurred in a room in her father’s house upon various evenings when defendant visited her there. This room was situated. next, to and separated only by an ordinary door from another room in which her father or mother or both were ordinarily present at the time when defendant was with her. Speaking of "the first of these occasions of improper conduct with her, she testified in effect that it was in the evening; that defendant came to the house and with him she went into the room mentioned where after awhile he laid down upon a couch and slept; that thereafter he got up and. made an improper proposal to her which she indignantly rejected, whereupon they sat and talked for a few moments ; that then the defendant forcibly took her and placed her upon the couch and accomplished his purpose; that she resisted and struggled, but did nothing to attract the attention or assistance of her parents, one or both of whom were then in the adjoining room.

The defendant, who was called as a witness in his own behalf, absolutely and unqualifiedly denied his guilt and responsibility for the daughter’s condition, and at considerable length gave testimony to the effect that he was at other places and with other persons upon some, at least, of the occasions when plaintiff claimed that he was present with his daughter.-

Various witnesses were called upon. each side to give evidence mainly relating to the whereabouts of the defendant upon various •occasions as tending to corroborate and support the plaintiff’s complaint or the defendant’s defense, respectively. Most if not all of them were in some way related to one of the parties, and they were, therefore, more or less interested in the event of the trial, in which they participated.

Defendant testified, and we nowhere fina any contradiction of him in this respect, that notwithstanding their close proximity no -complaint or suggestion was ever made by plaintiff or any one in his behalf that he, defendant, had been guilty of improper conduct with the daughter or was responsible for her condition until many weeks after the birth of the child, when he received, a letter from an attorney:

While some of the circumstances in the case thus briefly outlined are somewhat unnatural, they perhaps aré not so extraordinary that we should feel justified in refusing to accept and abide by the verdict of the jury upon them, if there were nothing else to be considered. Other evidence, however, to which we shall now refer, was given upon the trial of so unusual a character that we feel unwilling to allow the verdict to be based upon it.

After the daughter had been quite extensively examined both on behalf of the plaintiff who called her and by counsel for the defendant, and had left the stand, she was, upon the urgent request of the defendant’s counsel, predicated upon new information received by him, recalled and examined. She then in effect testified that she was entirely unconscious of defendant’s various acts of relation with her at the various times when the same were occurring; that she did not know and was unaware that they had at all occurred during the entire1 term of her -pregnancy and down to a period of several weeks after the birth of her child; that upon the first occasion of improper conduct she simply realized and understood what was taking place up to the time the defendant placed her upon the couch; that in October, 1901, she was visited by the plaintiff’s attorney, and as the result of what then occurred her mind was so influenced and awakened that it grasped a recollection or consciousness of defendant’s acts with her in the fall oxf 1900, so that from that timé- on down to and including the trial she had a present knowledge and recollection that the defendant had committed with her acts resulting in her seduction and childbirth.

It also appeared upon the trial that during the period in 19001 under review the complainant had made entries in a diary which mentioned the defendant. and contained references which were assumed to relate to and be based upon his visits to her and various results flowing therefrom. Subsequently she had no consciousness of having made these entries, but upon the occasion of the visit of the attorney aforesaid, and without knowing it, she procured the diary and gave to him various of these entries. After this visit she also became aware of having made the entries in the diary at the times of the various occúrrences therein referred to.

The jury were invited to, and, judging from their verdict, appar-' ently did enter the rather unknown and uncertain realms of hypnotism in search of an explanation for this remarkable experience and testi-mony of plaintiff’s chief witness. She testified, and it then was and now is claimed, that defendant hypnotized her and so made her unconscious of his unlawful acts with her at the time they were occurring, and that this condition of unconsciousness thereof continued until her father’s attorney visited her, nearly a year after-wards, and again placed her in a hypnotic condition, through and by means of which her consciousness was so restored that it seized hold of events of which she had theretofore been unconscious.

We do not feel called upon to discuss or determine the rather shadowy boundaries of hypnotism or its possibilities in explaining and accounting upon legal trials for what otherwise might fairly be considered as incredible. It is suggested by plaintiff’s counsel upon , this appeal that we may judicially recognize, as a matter of ordinary experience and knowledge, that the abnormal physical conditions and changes which precede childbirth are frequently accompanied by a corresponding mental disturbance, including loss of memory.

If we should accept this suggestion it would not explain that which confronts us in this case, for plaintiff’s witness did not for a period lose recollection of things theretofore lodged in her mind, with subsequently recurring memory. Through an alleged peculiar mental condition she became conscious and aware of events of which she had never before been at all conscious.

We are, therefore, thrown back upon plaintiff’s explanation and theory of hypnotism, and it suffices to apply to it the ordinary rules of evidence and common sense. The explanation given in behalf of plaintiff’s case is opposed to ordináry experience and knowledge. If, as explanatory thereof, plaintiff relied upon some science and theory not generally known or understood it was proper for him to give the jury the light of some competent evidence tending to sustain the. probabilities or at least possibilities of what was claimed. Nothing of this kind was done upon the trial unless there may have been read then, as upon this appeal, the unverified statements and opinions of certain authors. We are unwilling to accept them or the otherwise unconfirmed statements of the witness that at certain times in 1900 she was placed in an hypnotic condition whereby she was made unconscious, and again in a similar condition in 1901, whereby she was made conscious of certain events. The rejection of this evidence leaves this case in our opinion without sufficient testimony upon which to rest the burden carried by plaintiff to properly establish his case and sustain the verdict of the jury.

It is urged by plaintiff’s counsel, as tending to show the .truthfulness of the witness, that nothing but honesty could have prompted her to give this evidence, and that if she had been untruthful she would have suppressed her statements upon this subject. It is, perhaps, not worth while to consider at any length this aspect of the testimony. It merely may be suggested that the failure for over a year to make any complaint against defendant as the author of the misfortune of plaintiff’s daughter was somewhat strange unless explained in some manner, and that such explanation was furnished by the testimony as to the daughter’s condition if true.

Various exceptions were taken by the defendant to the reception and exclusion of' evidence and to refusals by the learned trial justice to charge, which we do not consider in view of the conclusions reached upon the questions discussed:.

The judgment and order should be reversed upon the ground that the verdict was against the weight of evidence.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event upon questions of fact.  