104 N.Y. 481, People v. O'Sullivan

Citation:104 N.Y. 481
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Appellant v. JOHN E. O'SULLIVAN, Respondent.
Case Date:March 01, 1887
Court:New York Court of Appeals
 
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Page 481

104 N.Y. 481

THE PEOPLE OF THE STATE OF NEW YORK, Appellant

v.

JOHN E. O'SULLIVAN, Respondent.

New York Court of Appeal

March 1, 1887

Argued February 2, 1886.

Page 482

COUNSEL

Ceylon H. Lewis for appellant. The court did not err in allowing the people to give evidence, under defendant's objection, of an assault by defendant, and his attempt to commit a like offense on the person of the prosecutrix, four days prior to the offense charged. (Wharton's Crim. Ev. 35, 46, 49; State v. Knapp, 45 N.H. 156; Strang v. People, 24 Mich. 6; Sharp v. State, 15 Tex. App. 171; Reg. v. Rearden, 4 F. & F. 76; Reg. v. Jones, 4 L. R. 154; Rex v. Chambers, 3 Cox Cr. C. 92; Williams v. State, 8 Hump. 585; State v. Walters, 45 Ia. 389; People v. Dohring, 59 N.Y. 382; 2 Bishop's Crim. L. [ 7th ed.] 1122, 1125; Conkey v. People. 1 Abb. App. Dec. 420; People v. Jennes, 5 Mich. 316; Com'rs v. Nichols, 114 Mass. 285; Com'rs v. Lahey, 14 Gray, 92; Com'rs v. Merriam, 14 Pick. 518; State v. Marvin, 35 N.H. 22; State v. Wallace, 9 id. 513; State v. Way, 5 Neb. 287; Lawson v. State, 20 Ala. 65.) Evidence was properly received of the fact, that on the 28th day of March, 1885, the injured girl made a disclosure of the injury. (Baccio v. People, 41 N.Y. 269; People v. Clemons, 3 N.Y. Crim. R. 571; Mallett v. People, 3 Hawley, 379; Wharton's Crim. Ev. 273; 3 Greenlf. on Ev. 213; 1 Hale's P. C. 633; 4 Blackst. Com. 214; 3 Chitty's Crim. L. 812; Higgins v. People, 58 N.Y. 379; State v. Byrne, 47 Conn. 466; State v. De Wolf, 8 id. 99; Maillet v. People, 3 Hawley, 382.)

John C. Hunt for respondent. The court erred in receiving evidence from the prosecutrix of an actual assault with intent to ravish, committed by the defendant four days prior to the occurrence on trial. (People v. Corbin, 56 N.Y. 363, 365; People v. Kennedy, 32 id. 141, 144; Copperman v. People, 56 id. 591; People v. Brown, 72 id. 574; People v. Crapo, 76 id. 291; Cancross v. People, 17 Week. Dig. 383, 385.)

Page 483

It was error to allow the prosecutrix to state, under defendant's objection and exception, that she told of the transaction March 28, 1885, more than ten months after its alleged occurrence, to a Catholic priest in Syracuse. (Baccio v. People, 41 N.Y. 265, 269, 270, 271.)

EARL, J.

The defendant was convicted in the Onondaga Oyer and Terminer of the crime of rape, committed upon Abbie O'Connor, on the 6th day of May, 1884.He was a Roman Catholic priest, in charge of a church at Camillus, in Onondaga county. The complainant was a domestic working for him in the parsonage, which adjoined the church. She testified that she was, at the time of the alleged crime, about seventeen years old; but there was other evidence, apparently more reliable, that she was about twenty. Before she went to live with him, she resided with her foster parents, who brought her up from infancy, and she and they were members of and regular attendants at his church. She went into his service on the twenty-fifth day of January, 1884, and from that time forward, his family consisted of himself, Mrs. Doehner, his housekeeper, Timothy O'Sullivan, his man servant, and the complainant.

She testified that the defendant entered her bedroom in the night-time, and there outraged her. At that time, the housekeeper was in New York, and she was alone in the house with him and the man servant. No criminal complaint was made against him until November, 1885, and he was not indicted until January, 1886.

Upon the trial, after the complainant had testified to the rape, she was permitted, against the defendant's objection, to testify that four days previously he made an attempt to ravish her, that she resisted him, and that he failed. For the reception of this evidence, the court at General Term, as appears by the opinion there pronounced and concurred in by a majority of the judges, reversed the conviction, holding that it was incompetent upon the trial of the defendant for the crime alleged to prove any other crime committed or

Page 484

attempted by him. We do not agree with the learned General Term in the view thus taken of this evidence. It is quite true that it is a general rule of law that upon the trial of a prisoner for one offense it is improper to prove that he has been guilty of other offenses; as where a prisoner is put upon trial for larceny, or burglary, or murder, it is incompetent to prove that he has been guilty of other larcenies or burglaries or murders, or other crimes. In this case, it would have been incompetent to prove that the defendant had committed or attempted to commit a rape upon any other woman. But where a prisoner is tried for a particular crime, it is always competent to show, upon the question of his guilt, that he had made an attempt at some prior time, not too distant, to commit the same offense. Upon the trial of a prisoner for murder it is competent to show that he had made previous threats or attempts to kill his victim. (People v. Jones, 99 N.Y. 667.)Upon the same principle it must always be competent to show that one charged with rape had previously declared his intention to commit the offense, or had previously made an unsuccessful attempt to do so. In this case if witnesses, other than the complainant, could have been called, who witnessed the unsuccessful attempt of the defendant to ravish the complainant four days before the crime was in fact accomplished, no one would have questioned the competency of their evidence. And the evidence is not rendered incompetent because it comes from the complainant herself. It is not as valuable, or trustworthy, or important, as if it had come from other witnesses. It probably did not have a very important bearing with the jury, because, unless they believed her evidence as to the principal offense they would not believe her evidence as to the prior attempt. But it may have had some tendency to corroborate her story, as to the principal offense, and thus may have had some weight with the jury. But whether it was important or not there is no rule which condemns it, and there is abundant authority to justify its reception. (Wharton's Crim. Ev. 35, 46, 49; State v. Knapp, 45 N.H. 148, 156; Strang v. People, 24 Mich. 16; Sharp v. The State,

Page 485

15 Tex. App. 171; Regina v. Rearden, 4 F. & F. 76; Regina v. Jones, 4 Law Rep. 154; Rex v. Chambers, 3 Cox Cr. C. 92; Williams v. The State, 8 Humph. 585; State v. Walters, 45 Iowa, 389; Com'rs v. Nichols, 114 Mass. 285; Com'rs v. Lahey, 14 Gray, 92; Com'rs v. Merriam, 14 Pick. 518; State v. Marvin, 35 N.H. 22; State v. Wallace, 9 id. 515; State v. Way, 5 Neb. 287; Lawson v. The State, 20 Ala. 65.)

We do not agree, therefore, that the judgment should have been reversed on account of the reception of the evidence alluded to. But there is at least one other error disclosed by the record for which, we think, the conviction ought to have been reversed.

As before stated, the alleged rape was committed in defendant's house, on the 6th day of May, 1884.The complainant remained in his service from that time until the twentieth day of August following, without, in any manner, by speech, action or appearance, disclosing or intimating to any one that she had suffered this...

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