People v. Todoro

• Decision Date: 12 July 1918
• Citation: 224 N.Y. 129,120 N.E. 135
• Parties: PEOPLE v. TODORO.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 129

120 N.E. 135

PEOPLE

v.TODORO.

Court of Appeals of New York.

July 12, 1918.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Nick Todoro was convicted of rape in the second degree. From a judgment of the Fourth Appellate Division (177 App. Div. 946,164 N. Y. Supp. 1106) affirming conviction by a divided court, defendant appeals. Reversed, and new trial ordered.

See, also, 160 N. Y. Supp. 352.

Thomas J. McNamara, of Rome, for appellant.

Arthur S. Evans, of Rome, for respondent.

HOGAN, J.

The defendant was charged with the crime of rape in the second degree, alleged to have been committed January, 17, 1916, upon Laura Passarella, a female under the age of 18 years, to wit, of the age of 15 years.

It was incumbent upon the prosecution to establish as a necessary element of the crime that at the date of the alleged commission thereof, January 17, 1916, the female was under the age of 18 years, and to furnish evidence corroborative of her testimony.

Upon the direct examination of the female she testified she would be 16 years of age on July 23, 1916, a date about two months subsequent to the time of the trial; that she went by the name of Laura Passarella, the name her mother called her. Her mother is dead. She had been in the United States seven years in July (1916). She came to this country in July, 1911, then being 10 years of age, accompanied by her mother and stepfather; that her father and stepfather are in Italy.

The foregoing was the only parol evidence adduced by the people upon the subject of the age of the female. Upon cross-examination the witness freely admitted that she had been guilty of numerous acts of such character as might lead a jury to hesitate or refuse to credit her as a witness. So far only as bears upon her age will reference be made to the cross-examination. She testified she was known as Rose Nuitta when she attended school, that her stepfather's name is Joe Nuitta, and that he and her father are still alive. When she went to school, seven years ago, in July, 1911, she gave her age as 12 years; in 1914 after leaving school she applied for work under the name of Rosa Nuitta and, being required to give her age, she said she was then 16 years old. In May, 1915, she was married to a man with whom she lived about three weeks. Upon application for the marriage license she made affidavit that her age was 18 years. Upon redirect examination she said her mother gave her age as 12 years in the school in her presence, and likewise she was told to give her age as 16 years to secure employment and of 18 years to secure a license to be married.

The district attorney offered in evidence a paper which he characterized as a transcript of the record of the birth of the witness. Translated, the paper reads:

‘Province of Reggio Calabria—District of Gerace. Municipality of Placanica. Office of the Civil State. Extract from the registrar of births of the year 1900:

‘The year 1900, the 23d day of July, at 10 a. m. in Municipality house. Before me Vincenzo De Angelis, Secretary of the Municipality, delegated with act of September 1st of last year, duly approved officer of the Civil State of the Municipality of Placanica, has appeared Passarelli Nicola of the age of 31, tailor, domiciled in Placanica who has declared to be that at 3 p. m. of the 22d day of the current month, in the house situated in Via Princip I Napoli, from Pania Filomena Uglianna, his wife, spinner, with him living was born a child of female sex whch he presents to me and to whom he gives the names of Maria-Carmela-Aurelia.

‘At the foregoing and at this act were present as witnesses, Fante Angelo of the age of 36, shoemaker, and Panaia Nicola of the age of 42, property owner, both residents of this Municipality.

‘Having read the present act to all intervened is with me subscribed by the declarer only as the witnesses are illiterate.

‘[Signed] Passarelli Nicola.

‘V. De Angelis.

‘For copy in conformity with the original released at the request of the illustrious Sir Attorney of the King of Gerace.

‘Placanica the 25th day of March, 1916.

‘The Officer of the Civil State,

‘N. Musco.

‘Municipality of Placanica,

‘Reggio Calabria.

‘Seen for the legalization of the signature of the Sir Officer of the Civil State of Placanica.

‘Gerace the 28th day of March, 1916.

‘The Chancellor

The President

‘of Civil and Penal Tribunal of Gerace.’

The paper bore two seals—one, ‘Municipality of Placanica, Reggio Calabria;’ the other, ‘Civil and Penal Tribunal of Gerace.’

Objection to the reception of the paper in evidence was timely made upon specific and ample grounds. The objection was overruled and an exception noted. The paper was admitted as evidence for the purpose of not only establishing the age of the female but as corroboration of the testimony given by her as to her age.

[1] The reception of the paper in evidence constituted material error. Section 956, Code of Civil Procedure, provides that a record or document on file in a public office of a foreign country, certified according to the form in use in that country, is evidence when authenticated in the manner prescribed in that section.

Section 382, Code of Criminal Procedure, provides:

‘The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.’

The district attorney contended that the paper was admissible in evidence under section 817, Penal Law (Consol. Laws, c. 40), as a transcript of the record of birth recorded in a bureau of vital statistics or board of health, duly authenticated by its secretary or under its seal.

The section referred to is designated as ‘presumption of responsibility in general as to child of seven years or more.’ Without deciding whether or not the section referred to has any application to ...