Frazer v. People

[308] By the Court, Allen, J. Objections were made to the sufficiency of the first two counts of the indictment. I do not think them tenable. The offense, it is true, is not in the first count charged in the very words of the statute, but in substance—the substantial facts constituting the statutory offense—are well stated; and this is sufficient. (The People v. Stockham, 1 Park. Rep. 424. Thompson v. The People, 3 id. 208.) But as there are three counts to which no exception is taken, and as there- is a general verdict of guilty, the conviction must be sustained, as the verdict will be applied to the good counts. (The People v. Curling, 1 John. 320; Same v. Cooper, 13 Wend. 379.) The witness Daly was, upon her own statement, guilty of a criminal offense of the same grade as that charged upon the defendant,' and was as liable, upon conviction, to the same punishment. (3 R. S. 5th ed. 975, § 21.) The submission to an operation, or the taking of drugs, with intent to procure a miscarriage, is a moral as well as a legal offense; and that, with the confessed want of chastity, was an impeachment of the witness, and rendered a corroboration proper, even if it was not indispensable. Her avowed enmity to the defendant went to her credibility, and the circumstances of the case resting alone upon her testimony, were not necessarily conclusive as to the guilt of the defendant. There was a fair question for the jury, upon all the evidence, as to the guilt or innocence of the accused, and no one could have questioned the verdict of the jury, either way. But if the witness Daly was in truth corroborated, so that her statement could challenge implicit belief, there was no doubt of the guilt of the defendant. The testimony of Dr. Peden was relied upon as thus corroborating the witness.' And the judge charged that it was corroborative as to the defendant’s intent and connection ioith the alleged offense. . How it only corroborated her as to the single fact of the birth of the child, which was not disputed, and which did not at all tend to prove the [309] offense. She did not testify that she was attended by Dr. Peden, or that the accused employed him; and if she had, the case would not have been varied. They were comparatively unimportant facts, not in the least implicating the accused in a criminal 'Offense. The claim is that the fact of the employment of Dr. Peden by the defendant to attend upon the girl at her confinement is some evidence of his paternity of the child, and this latter fact being proved, a motive existed for the commission of the offense, and that this motive thus inferred corroborates the evidence of the girl as to the actual guilt of the party. This is quite, too far fetched and fanciful. It was necessary to infer a fact, to wit, the guilty connection of the accused, with the perjury of the girl from another fact which is equally consistent with the entire innocence of the accused. He may have employed Dr. Peden from sympathy for the girl and as an act of charity; or may have done so at her request, for she has not said to the contrary; and the very publicity of the personal employment of a respectable physician, when it might, if there was guilt to conceal, have been done in various ways without the appearance of the defendant, or implicating him in the least, would seem to evidence a conscious innocence and purity of purpose; at least it is capable of this construction. But concede that from this fact the jury might infer that the reason of his interest in the girl was because he was chargeable with her pregnancy, and that therefore there was a motive for the commission of the offense, .that does not necessarily prove, or tend to prove, guilt in the respect charged. "What would be a sufficient inducement to one man to commit a crime the most heinous would be no temptation to another to offend in the least against the laws. It is difficult to see how the performance of an act legitimate and proper in November can tend to establish the commission of a crime in May or June preceding; or how it is to be inferred that because the accused was [310] willing or desirous that the girl should be properly attended and cared for, on her delivery when her full time was come, he attempted to procure a miscarriage by unlawful means, in the earlier stages of pregnancy. A corroboration, to be of any avail, should be as to some matter material to the issue. To prove that a witness has told the truth as to immaterial matters has no tendency to confirm his testimony involving the guilt of the party on trial. (1 Greenl. on Ev. § 381, n. 1.) In Rex v. Addis, (6 Car. & P. 388,) Patterson, J., said “ The corroboration of an aeeom-r plice [and the rule must be the same as to any witness for any reason needing confirmation and support] ought to be to , some fact or facts the truth or falsehood of which goes to prove or disprove the offense charged against the person.” And in Rex v. Webb, (6 Car. & P. 595,) Williams, J., said that something ought to be proved tending to bring the matter home to the prisoners; and that proving by other witnesses that the robbery was committed in the way described was not such a confirmation of the accomplice as would entitle his evidence to credit. And see Rex v. Wilkes, (7 Car. & P. 272;) and to the same effect, Commonwealth v. Bosworth, (22 Pick. 397;) People v. Davis, 21 Wend. 309.) The question is not whether it was indispensable to the conviction that the witness should be corroborated. I do not think it was; but that the jury might, in their discretion, have convicted upon the unsupported evidence of the witness. Whether it would have been discreet to do so is quite another question, and it is quite possible that the jury would have been unwilling to do so. And the charge that the evidence.of Dr. Peden was corroborative of the testimony of the witness in respect to the principal fact, to wit, “ the defendant’s intent and connection with the alleged offense,” may well have been, and doubtless was, influential with the jury, inducing them to give that credit, to her testimony which was not due to her uncorroborated" [311] statement. It cannot be said that this error in the charge could not have prejudiced the defendant. There are other parts of the charge which might entitle the defendant to a reversal of the conviction; but I do not deem it necessary to remark upon them. [Oswego General Term, July 14, 1863. For the error stated, the conviction must be reversed, and a venire de nova awarded to the Lewis county sessions. Allen, Mullin, Morgan and Bacon, Justices.]