People v. Downs

• Decision Date: 13 July 1923
• Citation: 236 N.Y. 306,140 N.E. 706
• Parties: PEOPLE v. DOWNS.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 306

140 N.E. 706

PEOPLE

v.DOWNS.

Court of Appeals of New York.

July 13, 1923.

Howard Downs was convicted of rape, second degree, and he appealed. From an order of the Supreme Court, Second Appellate Division (203 App. Div. 872,196 N. Y. Supp. 943) affirming the judgment, he appeals.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Second department.

John R. Vunk, of Patchogue, and George W. Percy, of Southampton, for appellant.

Le Roy M. Young, Dist. Atty., of Babylon (C. B. Partridge, of Northport, of counsel), for the People.

HOGAN, J.

The defendant appellant, Downs, was tried and convicted of the crime of rape, second degree. The conviction was affirmed by the Appellate Division by a non-unanimous decision, and defendant appeals to this court. We do not deem it necessary to recite the details of the alleged crime, save only as the same are essential to a disposition of the fundamental question presented by this appeal, and which formed the basis of the dissent by two justices of the Appellate Division.

The complainant was 16 years of age and lived with her mother and stepfather. Defendant is a married man, living with his family, and is a third cousin of complainant. Upon the trial, evidence as to his good reputation was adduced from several witnesses. Defendant's occupation was operating an automobile for hire.

[1] The testimony of complainant was in effect that she was upon the dock at Port Jefferson, having gone there about 3 o'clock in the afternoon out of curiosity to see the boat arrive and depart, and while there she met the defendant who asked her if she wanted to take a ride. She replied she did and stepped into the car. Together the plaintiff and defendant rode to Belle Tere Clubhouse, where defendant took on three passengers, two of whom he left at the railroad station and returned therefrom to the clubhouse with the third passenger; the complainant at all times being in the car. Having discharged the third party at the clubhouse, he then started back towards the station and then towards Coram. While thus riding they stepped out of the car, and he outraged her. Afterwards they returned, first to the dock, and then to her home, arriving there sometime about 5 o'clock in the afternoon. The prosecutrix made no complaint to her mother that evening but attended a camp meeting. The following morning she informed her mother the defendant had violated her person.

‘No conviction can be had for rape or defilement upon the testimony of the female defiled, unsupported by other evidence.’ Penal Law (Consol. Laws, c. 40) § 2013.

The ‘other evidence’ required by the statute must be of such character as tends to establish, first, that the crime of rape was committed by somebody, and, second, that the defendant was the one who committed the crime (People v. Terwilliger, 74 Hun, 310, 26 N. Y. Supp. 674; affirmed on opinion below 142 N. Y. 629, 37 N. E. 565), and whether consisting of acts or admissions must extend to every material fact essential to constitute the crime (Underhill on Criminal Evidence, p. 74; People v. Page, 162 N. Y. 272, 274,56 N. E. 750).

The trial judge charged the jury, upon the subject of corroboration, ‘You must come to the part of the case, and upon this part alone, is the reason for the court submitting the case to you,’ and thereupon referred to the testimony of one Dreyer, a witness in behalf of the people. Dreyer testified he was well acquainted with the defendant, and the day following the alleged crime he had a conversation with defendant in which he told him that ‘Mrs. Davis claims that her daughter had told her that he (defendant) had raped her yesterday.’ Defendant replied, ‘It isn't true, I didn't do so.’ The witness then said to him, ‘That is a pretty serious crime if it is true,’ and defendant replied, ‘I tell you that I did not do it.’ At that time there were present Mr. and Mrs. Norton (Mrs. Davis), the mother, and stepfather of complainant, the defendant, and the witness. The defendant further said that he could not understand how the complaint would say such a thing. He said he took her in the car-‘I took her to Belle Tere and from there to the station, and then she asked me to go for a ride, and I took her to Coram in my car.’ Thereupon witness said that he was not a justice of peace, and they ought to see Mr. Smith in that regard. Mr. and Mrs. Norton then left the room, and the witness said to defendant, ‘Howard, this is a serious thing, if you did the thing you deserve real punishment,’ and defendant replied, ‘I didn't do it,’ and said, ‘I will admit to you that I fooled with her, but I didn't rape her.’

The trial judge reiterated that his conclusion to submit the case to the jury upon the subject of corroboration was solely due to and dependent upon the evidence of Dreyer, as to the admission of defendant, ‘I will admit to you that I fooled with her, but I didn't rape her.’ At the close of the charge, counsel for defendant asked the court to charge the jury that, taking out of the case the testimony of Dreyer, and not considering that of importance enough to them to warrant a conviction, the other testimony in the case is insufficient to convict, and they must acquit defendant. The court refused to so charge but did charge:

‘I will say to the jury that it is by reason of Justice Dreyer's testimony upon that point that I submit the case to them.’

Counsel then asked the court to charge the jury that, taking from the case the statement, if any, made...