People v. Kearney

Decision Date29 June 1888
Citation17 N.E. 736,110 N.Y. 188
PartiesPEOPLE v. KEARNEY.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Appeal from general term, supreme court, Fourth department.

Indictment of Charles E. Kearney for seduction under promise of marriage, accomplished on the 4th day of July, 1885. Judgment of conviction. Defendant appeals.

DANFORTH and FINCH, JJ., dissenting.

W. P. Goodelle, for appellant.

Lawrence T. Jones, Dist. Atty., for the People.

PECKHAM, J.

Under the objection and exception of the counsel for defendant, the court permitted the prosecution to prove that in August, 1886, the prosecutrix was delivered of a child at the county house. She had already testified that the promise of marriage had been made in July of the previous year, and the intercourse had taken place immediately thereafter, and upon the faith of such promise, and had continued frequently until the following December. The materiality of this evidence as to the birth of a child could only have been claimed upon the ground that it tended in some degree to support the evidence of the prosecutrix upon one of the two points upon which such support was necessary, viz., the promise of marriage, and the intercourse following upon and on the faith of it. Authority for the admission of this evidence is claimed to exist in the case of Armstrong v. People, decided by this court, and reported in 70 N. Y. 38. In that case the promise of marriage was alleged to have been made in May, and the intercourse took place, on the faith of such promise, in the following August. The trial occurred in March of the next year; and the prosecution proved, by the female seduced, that, at the time of such trial, she was in the family way. It was held that such evidence was competent to be laid before the jury, as it proved that the woman, being unmarried, had had illicit intercourse with some one, which, under the evidence, must have taken place somewhere about the time she fixed as the time she had the intercourse with the defendant; and hence it must have tended, in some degree, to support her evidence. That case went to the limit, as it seems to me, of the principle upon which alone evidence of such a fact is admissible. It did show that the woman, being unmarried, had had illicit intercourse with shome man, and in that way it supported her evidence as to a portion of the fact necessary to be proved, viz., that she had had such intercourse, and that it was with the defendant, and not only that, but also (and herein consists its materiality) that the intercourse took place at about the time which she alleged she had had it with him. Upon the same principle, it would have been proper, if the trial had taken place after the birth, to have proved that fact, provided the birth had taken place within the usual period of gestation after the seduction. The fact alone of the birth would, of course, have no tendency to prove that the child was the result of the intercourse with the defendant; but, taken in connection with the other circumstances of the case, it might have at least some tendency to strengthen her evidence on the main point, that the intercourse was with him. It might be slight; but, in the language of FOLGER, J., in that case, it was a fact not incompetent to be laid before the jury. In this case, however, another and a most material step is taken. The birth of the child was in August, 1886, and the physician in attendance swore it was a full-grown nine-months child; thus showing conception to have taken place as late as November, 1885, while the prosecutrix swore the seduction occurred on the 4th of the previous July. What support is given to the evidence of the prosecutrix that she was seduced under promise of marriage on the 4th of July, 1885, by proving that she was delivered of a child 13 months thereafter, or in August, 1886? This fact simply proves that she had illicit intercourse with some one four months subsequent to the time when she swears that she was seduced under promise of marriage by the defendant. In the Armstrong Case the evidence showed that the female had had intercourse with some one at or about the very time she alleged she had it with the defendant. In this case it shows nothing of the kind. In neither shows, or tends to show, that she had any intercourse with the defendant at the time she swears she was seduced, nor does it show, or tend to show, that she had such intercourse with any one at or about that time. It is said that it is a most natural consequence of the seduction that the intercourse should have continued thereafter, as sworn to by the prosecutrix, and until it resulted in her pregnancy. That is very likely true; but it does not advance us a step in the way of proving that the intercourse did commence in July. If it did then commence, it may be admitted that it was very likely to have continued; but is it any, even the slightest, proof that it did then commence, by proving that she had illicit intercourse with some one four months thereafter, which resulted in the birth of a child after the usual period of gestation? In other words, is there any support given to the evidnece of the prosecutrix as to the seduction by the defendant in July, 1885, by proof of this nature? I cannot see that an affirmative answer can be given to either interrogatory. How can it be said to support the evidence of the prosecutrix? In the Armstrong Case it did support her evidence, by showing that, at or about that very time when she swore she was seduced, she had illicit intercourse with some one. Suppose she had not been pregnant? In such case there might have been no proof that she had...

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23 cases
  • State v. Heavener
    • United States
    • South Carolina Supreme Court
    • June 12, 1928
    ...value whatever in establishing the gravamen of the offense deception. The observations of the New York Court in People v. Kearney, 1'10 N. Y. 188, 17 N. E. 736, are strikingly apposite: "That the evidence in this case, of the nature herein commented on, was of a very dangerous and probably ......
  • State v. Heavener
    • United States
    • South Carolina Supreme Court
    • June 12, 1928
    ... ... Massachusetts, Mississippi, Connecticut, California ...          The ... California court, in People v. Burke, 18 Cal.App ... 72, 122 P. 435, a prosecution for attempted murder of a woman ... and her illegitimate child by the alleged father of ... establishing the gravamen of the offense deception ...          The ... observations of the New York Court in People v ... Kearney, 110 N.Y. 188, 17 N.E. 736, are strikingly ... apposite: ... "That the evidence in this case, of the nature herein ... commented on, was of a ... ...
  • People v. Thompson
    • United States
    • New York County Court
    • November 6, 1970
    ... ... (Underhill on Criminal Ev. § 74). The corroboration must extend to every material fact essential to constitute the crime. People v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880; People v. Kearney, 110 N.Y ... 188, 17 N.E. 736; People v. Plath, 100 N.Y. 590, 3 N.E. 790; Kenyon v. People, 26 N.Y. 203.' The Court's opinion went on to rule on roboration, and had this to say (supra, pp. 275--276, 56 N.E. p. 752): 'It will be seen that the learned trial judge did not regard the statements of ... ...
  • State v. Drummins
    • United States
    • Missouri Supreme Court
    • June 3, 1918
    ... ... defendant, incensed the jury against him and was error ... State v. Palmberg, 199 Mo. 233; State v ... Fogg, 206 Mo. 696; People v. Kearney, 17 N.E ... 736. (3) The court erred in refusing to permit the defendant ... to crossexamine his witnesses, and to show that their ... ...
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