People v. Thompson

• Decision Date: 14 July 1914
• Parties: PEOPLE v. THOMPSON.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 249

106 N.E. 78

PEOPLE

v.THOMPSON.

Court of Appeals of New York.

July 14, 1914.

Appeal from Supreme Court, Appellate Division, Second Department.

John Thompson was convicted of rape in the second degree, and from an order of the Appellate Division unanimously affirming the facts as found, but by a divided court reversing for errors of law (161 App. Div. 948,146 N. Y. Supp. 1106), the People appeal. Reversed, and judgment of conviction affirmed.

Edward A. Freshman, Asst. Dist. Atty., of Brooklyn, for the people.

David F. Price, of Brooklyn, for respondent.

COLLIN, J.

The defendant was convicted of the crime of rape in the second degree under the provision of Penal Law, § 2010 (Consol. Laws. c . 40):

‘A person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree, and punishable with imprisonment for not more than ten years.’

The female involved gave testimony, under her direct examination as a witness for the prosecution, in proof that the offense charged in the indictment was committed, and additionally, under the overruled objection and exception of the defendant, that subsequent to the commission of it the defendant had sexual intercourse with her four or five times. Because of the reception of this evidence the Appellate Division, as appears from the memorandum opinion there pronounced, reversed the conviction, holding that ‘the court erred in admitting testimony as to subsequent offenses by the defendant upon the person of the female involved,’ and granted a new trial. We do not agree with the Appellate Division in the view thus taken.

[1] It is a general rule that it is error to receive evidence, as proof of the offense charged, that an accused has committed a criminal offense other than that charged in the indictment. Evidence which tends only to prove collateral facts, and has not a natural tendency to establish the fact in controversy, should be excluded because: (a) It would have a tendency to withdraw and mislead the attention and deliberation of the jury from the real issue under inquiry; and (b) would subject the accused to charges unconnected with that issue and against which he had no reason to prepare a defense. People v. Grutz, 212 N. Y. 72, 105 N. E. 843;People v. Molineux, 168 N. Y . 264, 291, 61 N. E. 286,62 L. R. A. 193;People v. Sharp, 107 N. Y. 427, 456, 466,14 N. E. 319,1 Am. St. Rep. 851;People v. McLaughlin, 150 N. Y. 365, 44 N. E. 1017. This rule has, however, exceptions in those cases in which the evidence offered has a natural tendency to corroborate or supplement admitted direct evidence. People v. Duffy, 212 N. Y. 57, 105 N. E. 839;People v. Molineux, 168 N. Y. 264, 293, 61 N. E. 286,62 L. R. A . 193;People v. Neff, 191 N. Y. 210, 83 N. E. 970; Rex v. Bond, 21 Cox C. C. 252; People v. Dolan, 186 N. Y. 4, 78 N. E. 569,116 Am. St. Rep. 521,9 Ann. Cas. 453;People v. Katz, 209 N. Y. 311, 326,103 N. E. 305;People v. Peckens, 153 N. Y. 576, 594,47 N. E. 883;People v. Doty, 175 N. Y. 164, 67 N. E. 303;People v. Marrin, 205 N. Y. 275, 98 N. E. 474,43 L. R. A. (N. S .) 754;People v. Place, 157 N. Y. 584, 598,52 N. E. 576;People v. Shea, 147 N. Y. 78, 99,41 N. E. 505;Mayer v. People, 80 N. Y. 364.

[2] And the doctrine is now well, if not universally, established that in prosecutions for adultery, seduction, statutory rape upon one under the age of consent and incest, acts of sexual intercourse between the parties prior to the offense charged in the indictment may be given in evidence.The reason or reasons sustaining the doctrine may be apprehended by recent statements of the courts in applying it. In Director of Pub. Pros. v. Ball, 6 Crim. App. Rep. 31, a case of incest, evidence tending to show acts prior to and of the character of that charged was received. The Court of Criminal Appeal reversed the conviction on account of its reception (5 Crim. App . Rep. 238), and was in turn reversed by the House of Lords, for whom the Lord Chancellor said:

‘I consider that this evidence was clearly admissible on the issue that this crime was committed, not to prove mens rea, as Mr. Justice Darling considered, but to establish the guilty relations between the parties, and the existence of a sexual passion between them as elements in proving that they had illicit connection in fact on or before the dates charged. Their passion for each other was as much evidence, as was their presence together in the bed, of the fact that when there they had guilty relations with each other. I agree that the courts of law ought to be very careful to preserve the time-honored law of England that you cannot convict a man of one crime by proving that he has committed some other crime. That, and all other safeguards of our criminal law, will be jealously guarded, but here I think the evidence went directly to prove the actual crime for which these parties were indicted.’

In Boyd v. State, 81 Ohio St. 239, 90 N. E. 355,135 Am. St. Rep. 781,18 Ann. Cas. 441, a case of incest, evidence of sexual intercourse between the parties through the two months last prior to the date of the act charged was held relevant as tending to establish the particular act in controversy, because it showed the relation and familiarity of the parties, their disposition and antecedent conduct toward each other, and was corroborative of the testimony of the prosecuting witness. In State v. Schueller, 120 Minn. 26, 138 N. W. 937, a case of statutory rape, the reception of similiar evidence was approved on the theory of disclosing the relationship between the parties, opportunity and inclination to commit the act complained of, and as corroborative of the specific charge. The reasoning and conclusion of such decisions have our approval.

[3] The judicial decisions are not, however, in harmony in determining the question whether or not illicit acts subsequent to that charged are relevant and admissible in cases of the character above mentioned. While this court has not directly considered it, courts of the state have answered it in the negative. People v. Robertson, 88 App. Div. 198,84 N. Y. Supp. 401;People v. Farina, 134 App. Div. 110,118 N. Y. Supp. 817;People v. Bills, 129 App. Div. 798,114 N. Y. Supp. 587. The respondent cites the case of People v. Flaherty, 162 N. Y. 532, 57 N. E. 73. It is weightless as to the question under consideration. The error found in it was that the defendant throughout the seven days of the trial was unable to ascertain which of seven offenses testified to by the complainant he was indicted and to be tried for. See, also, State v. Acheson, 91 Me. 240, 39 Atl. 570. In People v. Freeman, 25 App. Div. 583,50 N. Y. Supp. 984, affirmed 156 N. Y. 694, 50 N. E. 1120, on the opinion below, the defendant was convicted of the statutory crime of rape in the second degree, committed on January 13, 1894. Evidence of acts of a similar character between the same parties intermediate May 9 and June 11, 1894, was admitted against the objection and exception of defendant. There was no proof of familiarity or association between them within the period from January 13 to May 9, 1894. It was held that, giving full effect to the principle that subsequent acts of a similar character may show the adulterous disposition of the parties and corroborate the proof that the specific act charged was committed, the subsequent acts testified to had not such connection with or relation to the antecedent act as to show a mutually amorous disposition between the parties on January 13, 1894, the court say...