
    Supreme Court—Appellate Division—First Department.
    February, 1902.
    THE PEOPLE v. FRANCESCO DESCHESSERE.
    (69 App. Div. 217.)
    1. Sodomy—Evidence of Half-Witted Youth.
    A conviction of the crime of sodomy will not be .sustained where the only evidence as to the question of the identity of the criminal is the testimony of a half-witted youth who, in one breath, says ii was the defendant, and in the next withdraws his statement, am says he had told an untruth when he said it was defendant, and tha his father told him to tell the story which he had told.
    2. Same—Code ' Criminal Pbocedure, Section 399.
    If such a witness be regarded as sufficiently sound to be credite< then he was an accomplice, whose uncorroborated testimony was no enough to justify a conviction, and in the absence of a specific prc vision, that a conviction under section 303, Penal Code, cannot b obtained upon the unsupported evidence of the person upon whos body the act was consummated, the court should follow the generi provisions and legal precedent.
    Appeal by the defendant, Francesco Deschessere, from judgment of the Court of General Sessions of the Peace in an for the city and county of Hew York, in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of April, 1901, convicting him of the crime of sodomy, and also from an order entered in said clerk’s office on the 19th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    Joseph H. Badigan, for the appellant.
    Howard S. Grans, for the respondent.
   O’Brien, J.

The nature of the crime charged forbids our dwelling upon the facts, and it is .only necessary to refer to them so far as to point out, and that but briefly, the reasons for which we think the judgment should be reversed.

The People claim to have proved that the defendant committed the act of which he is accused with one Louis Asterita, a youth seventeen years of age, who, it appears, was in imbecile or person of weak intellect, or, as his father characterized him, crazy.” This youth was the principal witness^ and, although he said, when first interrogated, that his father had told him what to say in the police court (which substantially was what he testified to on the trial), when further questioned by the counsel for the defendant, said that he had made mistakes about it and that the story he told was not true. The unreliability of his testimony was thereafter emphasized, for the learned trial judge took him in hand and, after calling his attention to the contradictions which he had made, gave him an opportunity to explain them; but he again repeated that the tatement that the defendant was the guilty party was not true, and then reasserted that his father told him to tell the story hieh he had told.

It shocks one’s sense of justice that a person should be oon‘cted and should serve a long term in prison upon testimony o unreliable, inconsistent and contradictory. The weight to be given such, testimony was commented upon in People v. Ledwon, 153 N. Y. 10, wherein the principal witness was a weak, ignorant boy, who spoke in 'a foreign tongue, and who, upon the trial, had stated that on a former occasion he had given false testimony, and it was said: “ Guilt in such a case cannot be established beyond a reasonable doubt by the testimony of such a witness, who is evidently, either from moral or mental defects', irresponsible,” and the judgment of conviction for that reason was reversed. Although in the case at bar the youth spoke the English language, having been born in this country, it was made evident that, if not an imbecile or, as his father said, “ crazy,” he was morally and mentally irresponsible, and that upon his testimony, uncorroborated as it was upon the question of the identity of the person who committed the crime, a conviction should not be allowed to stand.

If, however, we regard him as sufficiently sound mentally to entitle his testimony to be credited at all, and as sufficiently intelligent to understand the nature of the crime, then he was an accomplice whose uncorroborated testimony was not enough to justify a conviction. (Code Crim. Proc. sec. 399.) The respondent contends that the Code contains no specific provision that a conviction under section 303 (Penal Code) cannot be obtained upon the unsupported evidence of the person upon whose body the act of sodomy has been consummated, and in view of the fact that such specific provision is made with regard to the crimes of abduction, compulsory marriage, rape and defilement (section 283, Penal Code), it may well be doubted whether in any case under section 303 corroboration is necessary.”

In the absence, however, of such specific provision, the court should follow the general provisions which have been enacted and legal precedents. As poihted out by the defendant, section 399 of the Code of Criminal Procedure provides that “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” And it has been expressly held in Regina v. Jellyman, 8 C. & P. 604; 34 E. C. L. 916, that, “ although consent or nonconsent is not material to the offense, yet as the wife, if she consented, would be an accomplice, she would require confirmation; and so it would be with a party consenting to an offense of this kind whether man or woman.”

The learned trial judge was asked to charge that under section 303 of the Penal Code the complaining witness is an accomplice, and that as such, no conviction should be had upon his testimony unless it was corroborated by other evidence tending to connect the defendant with the commission of the crime, which requests were denied and the defendant excepted. Upon these requests, we think the dilemma was presented, either that the complaining witness was so deficient in intelligence as not to understand the nature of the crime or the bearing of his testimony, in which case he was not such a competent witness that, upon his testimony alone, the conviction should stand, or else that he was mentally competent, in which event, understanding the nature of the crime, he was capable of consenting, and thus became an accomplice, which required that to sustain a conviction his testimony should be corroborated. There is, of course, the additional phase that without being entirely devoid of understanding he may have been of a mind so weak that he did not comprehend what he was doing and, therefore, did not consent; but that would present a question of fact as to whether or not the act was voluntary on his part, which would have required the submission to the jury of the question whether or not he was an accomplice and the further instruction that if the jury found that he was, then corroboration of his testimony was necessary.

It is true that a request in form embodying this last phase was not made; but the attention of the court was distinctly called to the point that, as the youth was allowed to testify and the prosecution rested mainly upon his uncorroborated testimony, and he was thus treated as one who had sufficient understanding to know the nature of the act when it was consummated, it was important that the defendant’s rights, vitally affected as they were by the testimony of such a witness, should have been guarded by the court.

We do not overlook certain of the other testimony in the case bearing upon the possibility or probability that the defendant was the guilty person; but, upon the question of the identity of the criminal, we have only the words of this half-witted youth who, in one breath says that it was the defendant, and in the next withdraws this statement and says that he had told an untruth when he said that it was the defendant, thus preventing any reliance being placed upon his testimony.

Upon the whole case we do not think that the defendant’s guilt can, upon the testimony, be said to be established beyond a reasonable doubt and, therefore, as said in the case to which we have already referred of People v. Ledwon (supra), the defendant was, “ under the plain provisions of the statute, entitled to have the jury directed by the court to acquit.”

The judgment accordingly should be reversed and a new trial ordered.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred.

Judgment reversed and new trial ordered.  