
    People v. Cullen.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    1. Rape—Evidence.
    Under Pen. Code N. Y. § 283, providing that no conviction can be had for rape or defilement on the testimony of the female defiled, unsupported by other evidence, where in addition to the testimony of prosecutrix, a child seven and one half years old, which is unsatisfactory, there is testimony that the day, after the alleged assault an examination of the prosecutrix’s person showed that an assault may have been committed, it is proper to submit the question of defendant’s guilt or innocence to the jury.
    2. Criminal Law—Partiality of Jury.
    An exclamation by a juror on the cross-examination of the prosecutrix, which is a reiteration in detail of the testimony given on the examination in chief as to the commission of the rape, that “we have heard enough now,” does not indicate prejudice against defendant.
    Appeal from court of general sessions, Hew York county.
    Indictment against Dennis J. Cullen, in three counts, charging that defendant made an assault on one Lizzie Voss, she being of the age of seven and a half years, and attempted to have sexual intercourse with her. Lizzie Voss testified that the defendant came to her house with letters on a Saturday afternoon about two o’clock; and that she walked with him to a place in Third avenue, which she thought was two blocks from the house, where he took her into a cellar, laid her down, unbuttoned her drawers, put his hand upon her person, then Jay upon her, and * * * [describing an attempt at sexual intercourse.] Elizabeth Voss, the mother of the child, then testified that she examined the child on the day when she complained to her, and found nothing; and that on the following day the appearance of the child’s person only showed that it was a little red. Emanuel Bock, a physician, testified that he examined the child, and found an abrasion on the labia which might have been produced either by the penis or the finger. During the cross-examination of complainant, which was as to 'the details of the alleged attempt, one of the jurors exclaimed: “We have heard enough now.” Pen. Code Y. Y. § 283, provides that “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.” Defendant was convicted and appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      John I). Townsend, for appellant. John R. Fellows, (Win. Travers Jeróme, of counsel,) for the People.
   Van Brunt, P. J.

The appellant claims upon this appeal that the evidence of the child as to the commission of the crime was unsupported by other evidence, and that the complainant was not a competent witness. This latter objection cannot prevail, because there was sufficient evidence before the trial court to justify it in holding that the witness was competent. It is impossible to judge simply from the record what degree of intelligence the complainant manifested when upon the witness stand. The jury heard her examination, and could well judge as to her capacity and understanding, and determine the weight to be given to her testimony. The court could not exclude her from the stand because of any want of understanding or comprehension of the nature of an oath, so far as shown by the evidence, and therefore no error was committed in allowing her evidence to go before the jury.

At the close of the case for the prosecution the evidence supporting the testimony of the complainant was very meager and unsatisfactory, and would have certainly, under the rule laid down in the case of People v. Plath, 100 N. Y. 590, 3 N. E. Rep. 790, have entitled the defendant to a direction in his favor, had such motion been made; but we think that the rule laid down in the case cited has been very much modified by subsequent adjudication in kindred cases, (People v. Elliott, 106 N. Y. 288, 12 N. E. Rep. 602; People v. Everhardt, 104 N. Y. 591, 11 N. E. Rep. 62,) and that the true rule is that where there is some evidence fairly tending to support the complaint as to some material part of the crime charged, so that a conviction will not rest entirely upon the the testimony of the complainant, it is the duty of the court to submit the question to the jury, and that, whatever may have been the defects of the case of the people when they rested, they were cured by the testimony of the defendant. His testimony is of that character that no one can read it without coming to the conclusion that much of it is false, and that falsehood has been resorted to for the purpose of concealing the defendant’s connection with the crime charged. This testimony shows a plain attempt at concealment which would have been entirely unnecessary had not the defendant felt that he was under a sacred obligation to tell some sort of a story to shield himself from the consequences of his acts.

The criticisms upon the charge of the learned judge who presided cannot prevail. It will not do when only a single issue is really presented for trial by the defendant, the other proof being merely formal, to say that the court erred when he advised the jury, without objection, that this was the only issue presented in the ease, and that is all that the court did in the case at bar. Although the evidence in the case at bar, as it appears upon the record, is not as conclusive as it might have been, there was sufficient upon the whole case to submit the questions at issue to the jury, and with their findings we see no reason to interfere.

As to the exclamation of the juror during the progress of the trial, it may very well have been called forth by the reiteration of the disgusting evidence of the case, and in no way indicated that the juror was in any way not impartial between the prisoner and the people. Upon the whole case, therefore, we think that the conviction should be affirmed. All concur.  