
    CONKEY v. PEOPLE.
    December, 1860.
    Violent conduct of the prisoner, in the presence of the prosecutrix, and. immediately after consummating a rape upon her, is admissible in evidence on the trial of an indictment for the rape and for assault with intent to commit rape.
    On the trial of an indictment for rape committed on a'married woman,— Held, that evidence of her husband’s statements, made in her presence, on the day of the offense, were admissible in corroboration of her testimony.
    
    Evidence of the character of the prosecutrix for chastity, must be confined to what is generally said of her by those among whom she dwells or with whom she is chiefly conversant. While reputation in her immediate neighborhood is competent, reputation in a neighboring town is not.
    
    Upon an indictment containing several counts relating to the same transaction, one of which charged an attempt to commit the offense, the commission of which was charged in the others, — Held, that a verdict “ guilty of the offense charged in the indictment,” was a sufficient general verdict to support a conviction of the highest grade.
    A conviction and sentence will not be reversed because the indictment purports to be found by twenty-four grand jurors, if objection on that account was not taken in the court below.
    
    Charles M. Conkey and Walter Harrington were indicted in the Otsego oyer and terminer, for rape, &c.
    The indictment recited that it was found hy the oaths of twenty-four good and lawful men, &c.
    
      There were three counts — one against both defendants, for rape; a second against Conkey for rape, and against Harrington for abetting him therein; and a third, against both, for assault with intent to commit rape.
    On the trial, the prosecutrix, Mrs. Anna Scott, testified to the commission upon her of the rape, at her home in Pittsfield, on a Sunday morning.
    The district-attorney offered to prove by her and her husband, that at the time of the offense, and immediately afterward, Conkey overturned the stove, and broke windows, &c., in the room, and threw some articles out of the window. Defendants objected that this was not charged in the indictment; and if it were, it was not admissible against Harrington. The court admitted the evidence.
    The district-attorney was also allowed to prove by her, that she went to the neighboring town of Hew Berlin, the next day, to get a warrant against the offenders, from Justice Foote. On being asked if she told any one of the rape, before Foote, she was allowed to testify that she told one Edwards, on the day of the rape. She added, “I did not tell him all that was done. I told him they had abused me.” On cross-examination, she said, “ I did not tell him Conkey had had connection with me. I told him the rest they had done.”
    The prosecutrix’s husband, who was present at the time of the offense, was allowed to testify: “I first told Mr. Edwards of what had happened Sunday morning. I did not tell him about Conkey getting on the bed, but my wife did. She said they abused her so she could not help about putting up the stove.” This evidence was also admitted, against the objection of defendants, that it was immaterial, and because neither of defendants were present.
    Medbury, a witness .for defendant, testified: “ I think I know, how she [the prosecutrix], is regarded in Hew Berlin by some of the people.” He was then asked: “From the speech of people, is her character for chastity good or bad ? ” This question was excluded. He then further said, “ I don’t know how she is generally regarded in the community.”
    One Cady was afterward called for the prosecution, and said he lived about a mile and a half from the .prosecutrix. He said, “I think I have heard enough to form an opinion of her character. In my own mind her character is good.” . . . "I know the impression of the community is, her character is good.”
    The testimony of Hill, and the verdict of guilty, are stated in the opinion. After conviction and sentence for rape, affirmed by the supreme court, the prisoners brought error to this court.
    
      Bexford é Kingsley, attorneys for plaintiffs in error.
    
      K. Countryman, district-attorney, for respondents.
    
      
       Compare Wooden v. People, 1 Park. Cr. 464.
      The rule as to contradicting a witness by proving different statements made out of court, does not extend to statements made by others in his presence, of matters of which he had no knowledge. Gandolfo v. Appleton, 40 N. Y. 583.
    
    
      
      
         See also Graham v. Chrystal, and Wehrkamp v. Willett, reported in this series.
      In cases of impeachment of an ordinary witness, the object of the inquiry is the character at the time of testifying. People v. Haynes, 38 How. Pr. 369.
    
    
      
      
         It is unnecessary to name the grand jury, or state their number, in the indictment. Dawson v. People, 25 N. Y. 899 ; People v. Bennett, 37 Id. 117 ; and see Wagner v. People, reported in this series.
    
   Clerke, J.

The evidence of the conduct of the prisoner, Conkey, immediately after the perpetration of the offense, was properly admitted. It characterized the whole transaction, showing, or tending to show, that the carnal knowledge which he had of the woman was effected under circumstances of violence and threats, calculated to alarm and terrify her. The whole was one continuous act.

Nothing is better established than that the prosecutrix, in trials of this nature, may testify as to what she did or said after the commission of the offence. In the language of Sir William Evans, 3 PothierBv. 389: "Upon accusations for rape, where the forbearance to mention the circumstances for a considerable length of time is, in itself, a reason for imputing fabrication, unless repelled by other considerations, the disclosure made upon the first proper opportunity after its commission, and the apparent state of mind of the party who has suffered the injury, are always regarded as very material; and the evidence of them is certainly admitted without objection.”

Ordinarily, doubtless, what a witness has said Out of court cannot be received to fortify his testimony. The principal exception is stated in the above quotation.

Thomas Scott, the husband of the woman on whom the offense had been committed, testified that he first told Edwards the next morning, relating no part of his story to Edwards, and then corroborated the statement of his wife, that she had complained to Edwards of the manner in which the defendants had abused her. Considering the • relation he bore to the prosecutrix; that he was present when she made the disclosure to Edwards; and that he did not give the details of the conversation' with the latter; his evidence on this point can scarcely be within the rule disallowing proof of declarations made by a witness out of court, in corroboration of his main testimony at the trial.

Undoubtedly, on the trial of a person charged with rape, the character of the prosecutrix for chastity may be impeached by general evidence. Medbury, a witness called for the defendants, testified that he had heard three or four people in Hew Berlin speak of Mrs. Scott’s character for chastity, but did not pretend to know anything of what the people in her neighborhood said. Cady, a witness called on behalf of the people, and living in her neighborhood, testified that he had heard enough to form an opinion, and he knew that the impression of the community Was, that her character was good.

The witness must be able to state what is generally said of the person by those among whom he (such person) dwells, or with whom he is chiefly conversant, for it is this only that constitutes general reputation or character. I think, therefore, that the testimony of Medbury was properly rejected, and that of Cady properly admitted.

Hehemiah Hill, living in the neighborhood of Scott and his wife, first said that he did not know that he had the means of knowing about her character for chastity, but soon after added, “I think I am prepared to judge,” and concluded by saying that he considered tier character good. The defendants’ counsel did not cross-examine him relative to the grounds upon which, after first hesitating, he stated he was prepared to testify. We are not to presume that he was not prepared to judge, from being convinced, on further consideration, that he had sufficient knowledge of her reputation among her neighbors.

The jury, at the trial of the indictment, found the following verdict: That they find the prisoners at the bar guilty of the offense charged in the indictment.” The charges in the indictment are: 1st. Rape, against Conkey and Herrington. 2nd. Rape, against Conkey, and against Herrington for assisting Conkey in committing a rape. 3rd. Assault and battery, against both Conkey and Herrington, with intent to commit rape.

It is maintained by the counsel for the defendants that the jury have found the prisoners guilty of every one of these offenses, without specifying which; and, therefore, that the verdict is fatally defective. e

Although this is not the usual way of rendering a verdict in criminal cases, I can discover no substantial difference between it and the ordinary verdict of guilty. Like the ordinary form, it responds in general term to the indictment, and this constitutes what is termed a general verdict. If the usual verdict of guilty was the form entered in this case, it would not be pretended that the jury might have intended to find the prisoners guilty of the mere attempt at an offense. When a general verdict of guilty is rendered, upon several counts in an indictment, relating to the same transaction, the practice is to pass judgment on the highest grade of offense. Whart. Cr. L. p. 1037, § 3048; Harmon v. The Commonwealth, 12 Serg. & R. 191. The verdict is to have a reasonable intendment, and it would be far from reasonable to say, if the jury intended to declare the prisoners guilty of only the inferior grade of the offense charged, that they have not said so, and would not specifically find them guilty of it. To relieve them from the consequences of the higher grade, the jury would unquestionably have employed language expressing that intention, and would have limited their finding to the inferior grade.

The indictment appears on its face to have been presented by the oaths of twenty-four good and'lawful men,-the grand jury of the county; although the statute provides “ there shall not be more than twenty-three, nor less than sixteen persons sworn on any grand jury.” No indictment can be found without the concurrence of at least twelve grand jurors; thus requiring that at least a majority of the twenty-three should unite in the finding. In the present case, not only twelve, but twenty-three jurors, summoned as grand jurors, united in finding the indictment ; the only error committed was, that one more added his suffrage to that of the necessary number. The defendants suffered no injustice from this; it was an imperfection in a matter of form, which did not tend to the prejudice of the defendants; there was a concurrence, in the indictment, of more than the law requires.

At all events, it is now too late to make the objection. The counsel for the defendants neglected to • make it before the court of oyer and terminer; and it is too late to set up the objection after conviction and sentence. People v. Griffin, 2 Barb. 427. In King v. Marsh, 1 Neville & P. 187; 6 Ad. & N. 236; 6 Benn. & H. Lead. Cr. Cas. 317; it was held that, a grand jury ought not to consist of more than twenty-three persons. Where more than twenty-three persons are sworn and sit upon a grand jury, and a bill of indictment is found by them, to which the defendant pleads, and is tried, and found guilty, the court of kings bench will not, upon motion, quash the indictment. If more than twenty-three are sworn and sit upon the grand jury, the defendant, in an indictment found by them, may, if that fact appears upon the caption of the indictment, bring error in law. If it does not appear there, then he may bring error in fact. See also People v. King, 2 Cai. 98. The error complained of does not amount to making a nullity of the indictment; it, at most, is an irregularity, not capable now of avoiding the conviction.

The judgment of the supreme court should be affirmed.

Judgment affirmed.  