People v. Connor

• fullCitation: People v. Connor, 126 N.Y. 278, 27 N.E. 252 (N.Y. 1891)
• Decision Date: 14 April 1891
• Citation: 126 N.Y. 278,27 N.E. 252
• Parties: PEOPLE v. CONNOR.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 278

27 N.E. 252

PEOPLE

v.CONNOR.

Court of Appeals of New York.

April 14, 1891.

Appeal from supreme court, general term, first department.

Henry A. Gildersleeve, for appellant.

McKenzie Semple, Asst. Dist. Atty., for the People.

RUGER, C. J.

The defendant was tried at the general sessions in New York, and convicted of the crime of rape, alleged to have been committed on the body of a female named Minnie Heath. The course taken on the trial resulted in presenting but one disputed question of fact for the jury, which was whether the connection, admitted to have taken place between the defendant and Minnie Heath, was effected by force alone, or was partially or wholly accomplished with her consent. The jury, under a charge upon this question, which has elicited the encomiums of the defendant's counsel, found that the connection was effected against the will and without the consent of the prosecutrix; and he appeals from the judgment entered upon the verdict, upon the ground that there was no evidence to sustain it; or, rather, that the jury were bound to infer consent from the evidence.

The prosecutrix and defendant were the only eye-witnesses to the circumstances of the alleged connection, and their evidence conflicted on all material points. The prosecutrix-a young, virtuous, and apparently truthful girl-give a consistent and probable account of the transaction, and was supported in respect to her story by the material circumstances of the case. The defendant's testimony was unnatural and improbable, and tended to show that he was a reckless and unprincipled man, capable of fabricating testimony to escape the consequences of his crime. It was not strange or unnatural that, under these circumstances, the jury gave credit to the story of the girl, and disbelieved the testimony of the defendant. This they had the right to do, unless there were circumstances in the testimony of the prosecutrix so radically inconsistent with the theory of a constant and earnest resistance to the attempt of the defendant as to present a question of law. It her evidence showed the fact of non-consent, and the exercise of all the means of resistance which under the circumstances of the case, and the condition of her mental faculties, were within her power to make, the judgment cannot be disturbed. Under the Revised Statutes rape was defined to be the act of ‘carnally and unlawfully knowing any female child under the age of ten years,’ or ‘forcibly ravishing any woman of the age of ten years or upwards.’ 3 Rev. St. (7th Ed.) 2476. The Penal Code defined with more care and precision the circumstances which should constitute the crime of rape, and included within its provisions cases which might not have been punishable under the prior statute. The crime is there defined to be ‘an act of sexual intercourse with a female, not the wife of the perpetrator, committed against her will and consent.’ The circumstances under which consent cannot be implied are expressed in six subdivisions, among which are those ‘when the female is under the age of ten years,’ (now 16,-act of 1887;) when incapable of giving consent through idiocy or other unsoundness of mind; ‘when her resistance is forcibly overcome, or is prevented by fear of immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her;’ and other cases not material to consider in the discussion of this case. Section 278, Pen Code. Such cases as come within these definitions, and such alone, now constitute the crime of rape. The codifiers evidently undertook to make a comprehensive definition of the crime, including all of the cases which should thereafter be punishable as rape, and those they define in language so plain and unambiguous that the measure of resistance required of a female, subjected to felonious assault, cannot well be now the subject of misunderstanding. The substantial elements required by the Code to constitute the crime are that the connection shall be effected against the will and consent of the female; but such consent cannot be implied, unless the case is brought within the meaning of some of the conditions named in the statute. Of course, any partial or voluntary submission to an assault will be construed now, as formerly, to amount to a consent; but when the submission is produced by the fear of great bodily harm, the necessity of showing the same degree of resistance required in other cases in now unnecessary. It is thus seen that the extent of the resistance required of an assaulted female is governed by the circumstances of the case, and the grounds which she has for apprehending the infliction of great bodily harm. When an assault is committed by the sudden and unexpected exercise of overpowering force upon a timid and inexperienced girl, under circumstances indication the power and will of the aggressor to effect his object, and an intention to use any means necessary to accomplish it, it would seem to present a case for a jury to say whether the fear naturally inspired by such circumstances had not taken away or impaired the ability of the assaulted party to make effectual...