People v. . Deitsch

Andrews, J.: The defendant was convicted of the crime of rape. His conviction was reversed in the Appellate Division and he was granted a new trial on the ground that there was no sufficient *110 evidence supporting the testimony of the complainant. (Penal Law, § 2013.) We agree that this result was right hut not, however, for the reason given in the court below. The general rule is that the corroborating testimony should tend to show the material facts necessary to establish the commission of the crime and the identity of the person committing-it. (People v. Plath, 100 N. Y. 590.) Here the complainant was a child eight years of age. Her physical condition immediately after the alleged assault and the result of a medical examination was sufficient to support her story that a rape had been committed. In addition there was needed corroboration of her statement that the defendant was the guilty party. We have these facts bearing upon the question. The child’s father, mother and grandmother, who lived with her, left the house at ten minutes to eight o’clock: in the morning. At eight o’clock she says the defendant forced his way in and committed the crime. An independent witness states that she saw the defendant standing in the street at the gate in front of the house in which the complainant lived a few minutes before eight. This fact was accepted by the jury as true. The defendant, however, both by his own testimony and by the testimony of two other witnesses falsely, it is found, attempted to establish an alibi. This testimony reflects upon the character of his presence in the street at the time stated and justifies the inference that it was a guilty presence. Under these circumstances there is sufficient corroboration as to the identity of the criminal. (People v. Terwilliger, 74 Hun, 310; affd., 142 N. Y. 629; People v. Goffredo, 232 N. Y. 516; People v. Gorski, 236 N. Y. 673.) The Gorski case is in point. The deceased was murdered outside of a saloon. The stories of the accomplices charged the defendant with the commission of the crime. That the crime was committed by some one was admitted. The only corroborating evidence tending to connect Gorski with it was the fact that very shortly after the murder he was *111 seen walking in a direction away from the saloon and at a distance from it of some one hundred and thirty feet, with two other men, one of whom was not alleged to have participated in the murder. Gorski denied that he was present at the scene of the crime and, as in this case, set up a false alibi. We held that the presence of Gorski in the neighborhood falsely denied by him was sufficient corroboration. His denial tended to show that his presence was not innocent. While the statute in regard to the corroboration of accomplices' is not identical in language with that now before us, precedents applicable in the one case may well guide us in the other. (People v. Terwilliger, supra; People v. O’Farrell, 175 N. Y. 323.) We think, however, incompetent testimony damaging to the defendant was admitted over his objection and exception. Immediately after the assault it was shown that the child made complaint to a neighbor. Such testimony was competent. (People v. O’Sullivan, 104 N. Y. 481.) Half an hour later, not as the natural result of reaction to the crime but in reply to questions she gave the details concerning it to a policeman. Those details given by him were inadmissible.- (Baccio v. People, 41 N. Y. 265.) The error might have been overlooked as the circumstances of the assault appear elsewhere in the case, except that she described the criminal as a stout man, wearing a straw hat, a description that fitted the defendant. The identification of the defendant was not altogether satisfactory. The testimony of the witness who testified she saw him by the gate on the morning in question was somewhat shaken on cross-examination. The child who recognized bfm as the criminal was young. Two apparently disinterested witnesses testified to facts which if true established an alibi. Any incompetent testimony tending to strengthen in the minds of the jury the identification of the complainant was harmful. We may not in this case affirm under section 542, Code of Criminal Procedure. *112 The judgment appealed from must be affirmed. Hiscock, Ch. J., Cardozo and Pound, JJ., concur; Hogan, McLaughlin and Crane, JJ., concur in result and on additional ground that there was not corroborating evidence. Judgment affirmed.