Conkey v. People

Clerke, J. The evidence of the conduct of the prisoner, Conkey, immediately after the perpetration of the offense, was properly admitted. It characterized the whole transaction, showing, or tending to show, that the carnal knowledge which he had of the woman was effected under circumstances of violence and threats, calculated to alarm and terrify her. The whole was one continuous act. Nothing is better established than that the prosecutrix, in trials of this nature, may testify as to what she did or said after the commission of the offence. In the language of Sir William Evans, 3 PothierBv. 389: "Upon accusations for rape, where the forbearance to mention the circumstances for a considerable length of time is, in itself, a reason for imputing fabrication, unless repelled by other considerations, the disclosure made upon the first proper opportunity after its commission, and the apparent state of mind of the party who has suffered the injury, are always regarded as very material; and the evidence of them is certainly admitted without objection.” Ordinarily, doubtless, what a witness has said Out of court cannot be received to fortify his testimony. The principal exception is stated in the above quotation. Thomas Scott, the husband of the woman on whom the offense had been committed, testified that he first told Edwards the next morning, relating no part of his story to Edwards, and then corroborated the statement of his wife, that she had complained to Edwards of the manner in which the defendants had abused her. Considering the • relation he bore to [421] the prosecutrix; that he was present when she made the disclosure to Edwards; and that he did not give the details of the conversation' with the latter; his evidence on this point can scarcely be within the rule disallowing proof of declarations made by a witness out of court, in corroboration of his main testimony at the trial. Undoubtedly, on the trial of a person charged with rape, the character of the prosecutrix for chastity may be impeached by general evidence. Medbury, a witness called for the defendants, testified that he had heard three or four people in Hew Berlin speak of Mrs. Scott’s character for chastity, but did not pretend to know anything of what the people in her neighborhood said. Cady, a witness called on behalf of the people, and living in her neighborhood, testified that he had heard enough to form an opinion, and he knew that the impression of the community Was, that her character was good. The witness must be able to state what is generally said of the person by those among whom he (such person) dwells, or with whom he is chiefly conversant, for it is this only that constitutes general reputation or character. I think, therefore, that the testimony of Medbury was properly rejected, and that of Cady properly admitted. Hehemiah Hill, living in the neighborhood of Scott and his wife, first said that he did not know that he had the means of knowing about her character for chastity, but soon after added, “I think I am prepared to judge,” and concluded by saying that he considered tier character good. The defendants’ counsel did not cross-examine him relative to the grounds upon which, after first hesitating, he stated he was prepared to testify. We are not to presume that he was not prepared to judge, from being convinced, on further consideration, that he had sufficient knowledge of her reputation among her neighbors. The jury, at the trial of the indictment, found the following verdict: “ That they find the prisoners at the bar guilty of the offense charged in the indictment.” The charges in the indictment are: 1st. Rape, against Conkey and Herrington. 2nd. Rape, against Conkey, and against Herrington for assisting Conkey in committing a rape. 3rd. Assault and battery, [422] against both Conkey and Herrington, with intent to commit rape. It is maintained by the counsel for the defendants that the jury have found the prisoners guilty of every one of these offenses, without specifying which; and, therefore, that the verdict is fatally defective. e Although this is not the usual way of rendering a verdict in criminal cases, I can discover no substantial difference between it and the ordinary verdict of guilty. Like the ordinary form, it responds in general term to the indictment, and this constitutes what is termed a general verdict. If the usual verdict of guilty was the form entered in this case, it would not be pretended that the jury might have intended to find the prisoners guilty of the mere attempt at an offense. When a general verdict of guilty is rendered, upon several counts in an indictment, relating to the same transaction, the practice is to pass judgment on the highest grade of offense. Whart. Cr. L. p. 1037, § 3048; Harmon v. The Commonwealth, 12 Serg. & R. 191. The verdict is to have a reasonable intendment, and it would be far from reasonable to say, if the jury intended to declare the prisoners guilty of only the inferior grade of the offense charged, that they have not said so, and would not specifically find them guilty of it. To relieve them from the consequences of the higher grade, the jury would unquestionably have employed language expressing that intention, and would have limited their finding to the inferior grade. The indictment appears on its face to have been presented by the oaths of twenty-four good and'lawful men,-the grand jury of the county; although the statute provides “ there shall not be more than twenty-three, nor less than sixteen persons sworn on any grand jury.” No indictment can be found without the concurrence of at least twelve grand jurors; thus requiring that at least a majority of the twenty-three should unite in the finding. In the present case, not only twelve, but twenty-three jurors, summoned as grand jurors, united in finding the indictment ; the only error committed was, that one more added his suffrage to that of the necessary number. The defendants suffered no injustice from this; it was an imperfection in a matter of form, which did not tend to the prejudice of the de [423] fendants; there was a concurrence, in the indictment, of more than the law requires. At all events, it is now too late to make the objection. The counsel for the defendants neglected to • make it before the court of oyer and terminer; and it is too late to set up the objection after conviction and sentence. People v. Griffin, 2 Barb. 427. In King v. Marsh, 1 Neville & P. 187; 6 Ad. & N. 236; 6 Benn. & H. Lead. Cr. Cas. 317; it was held that, a grand jury ought not to consist of more than twenty-three persons. Where more than twenty-three persons are sworn and sit upon a grand jury, and a bill of indictment is found by them, to which the defendant pleads, and is tried, and found guilty, the court of kings bench will not, upon motion, quash the indictment. If more than twenty-three are sworn and sit upon the grand jury, the defendant, in an indictment found by them, may, if that fact appears upon the caption of the indictment, bring error in law. If it does not appear there, then he may bring error in fact. See also People v. King, 2 Cai. 98. The error complained of does not amount to making a nullity of the indictment; it, at most, is an irregularity, not capable now of avoiding the conviction. The judgment of the supreme court should be affirmed. Judgment affirmed.