People v. Lammes

Clark, J.: The defendant was convicted in Monroe county of the crime of rape in the second degree. [534] Defendant formerly resided with his wife in the village of Spencerport, N. Y., where he conducted a bakery. In the year 1922 the complainant, Gertrude Scharn, went to work for defendant in his bakery, and they became intimate friends, she residing with defendant and his wife while she worked for them. In the fall of 1922 complainant went to Ogden, Utah, to live with her father, and in December, 1922, defendant went to Utah and saw the complaining witness. He returned to Spencerport in January or February, 1923, and continued to live with his wife in that village. The complaining witness, Miss Scharn, returned to Rochester April 30, 1923, defendant having furnished her money to defray her traveling expenses. When she arrived in Rochester, in response to her request over the telephone, defendant went to the New York Central station and met her, and they went to a room on Chatham street, and it is claimed by the People that on the morning of May 1, 1923, at said room- defendant had sexual intercourse with the complainant, Gertrude Scharn. On the trial she testified that said intercourse took place at that time, and there was sufficient evidence corroborating the prosecutrix as to the act of sexual intercourse with defendant, but she was not sufficiently corroborated as to 'her age. She testified that she became eighteen years of age on the 17th day of May, 1923, and that the act of sexual intercourse charged against defendant was committed on the 1st day of May, 1923, only sixteen days before she became eighteen years of age, according to her own testimony. The law requires that in a case of this character the prosecutrix must be corroborated, and that such corroboration must extend to every material fact essential to constitute the crime charged, and in this case that rule would apply to the fact of the age of the prosecutrix, as well as to each of the material facts essential to constitute the crime. (People v. Plath, 100 N. Y. 590; People v. Page, 162 id. 272.) The only corroboration of the prosecutrix on the question of her age is an affidavit made by her mother (deceased) on a school census blank and sworn to before a police officer of the city of Rochester as a commissioner of deeds. According to that affidavit the prosecutrix was under the age of eighteen years at the time she claimed to have had intercourse with the defendant. I think the admission of this affidavit of the mother, purporting to state the date of birth of the prosecutrix, was improper and that it constituted such a substantial error as to require the reversal of the judgment. This affidavit was hearsay evidence pure and simple. It was received on the theory that it established [535] the pedigree of the complainant. It could not be properly received for any such purpose for age is not essential to establish pedigree, and the question of pedigree was not necessarily involved in this case. (Bowen v. Preferred Accident Ins. Co., 68 App. Div. 342 ; 82 id. 458; Eisenlord v. Clum, 126 N. Y. 552; Washington v. Bank for Savings, 171 id. 166; People v. Miller, 30 Misc. Rep. 355; Wallace v. Syracuse Rapid Transit R. Co., 42 App. Div. 536; 4 Chamberlayne Mod. Ev. §§ 2922, 2926; People v. Mayne, 118 Cal. 516.) One of the facts that the People were obliged to establish in order to convict this defendant was that the complainant was under the age of eighteen years at the time he had intercourse with her. (Penal Law, § 2010.) 'No conviction could properly be had upon the testimony of the prosecutrix unsupported by other evidence. (Penal Law, § 2013.) The only other evidence in this case on the question of the age of the prosecutrix was the affidavit of her mother above referred to. Under the circumstances as disclosed by the evidence an inspection of the complaining witness would not aid the jury in determining her age at the time she alleges the crime was committed. (People v. Todoro, 160 N. Y. Supp. 352; People v. Marks, 146 App. Div. 13.) The judgment of conviction should be reversed and a new trial granted. All concur, except Davis and Crouch, JJ., who dissent and vote for affirmance in an opinion by Davis, J.