The defendant was convicted of the crime of seduction under promise of marriage. The judgment of conviction has been unanimously affirmed by the Appellate Division and defendant now appeals to this court.
The statute under which the conviction was obtained provides as follows: "A person who, under promise of marriage, * * * seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than $1,000, or both." (Penal Law, section 2175.) A conviction, however, cannot be had upon the testimony of the female seduced, unsupported by other evidence. (Penal Law, section 2177.) The unanimous affirmance of the judgment of conviction by the Appellate Division conclusively establishes, so far as this court is concerned, that the testimony of the female seduced was supported by other evidence. (People v. Willett, 213 N.Y. 368; People v. Sweeney,213 N.Y. 37.)
But it is urged that certain errors, to which exceptions *Page 498 were taken, were committed at the trial which call for the reversal of the judgment of conviction. Only two of these alleged errors are relied upon in the opinion of Judge CRANE and they seem to me to be the only ones of sufficient importance to merit consideration. The first relates to a request to charge with reference to the testimony of Doctor Huber and the second to a request to charge with reference to the testimony of the witness Slote. These two alleged errors will be considered in the order named, but in order to appreciate what seems to me to be a proper consideration of them it is necessary to briefly consider some of the evidence set out in the record.
Helen Levine in April, 1917, then between twenty-one and twenty-two years of age, after a short courtship accepted defendant's offer of marriage. The engagement was publicly announced. It was recognized and generally understood by the immediate relatives and friends of both of the parties. The defendant after the engagement treated Miss Levine as a prospective bride. He frequently called upon her, took her to places of amusement, gave her money from time to time, also different articles of clothing and in a general way assisted her in selecting and obtaining her wedding trousseau. The relation thus started, according to her testimony (defendant was not sworn at the trial nor was any witness produced in his behalf), continued until the night of the seventh of June following the engagement when he took her to a theatre. On their return to her home, which was in her brother-in-law's apartment, he went with her to her bedroom where he had frequently been before and induced her, in view of their prospective marriage, to have sexual intercourse with him. She testified that the act caused her much pain and discomfort, which fact was made known to him and shortly thereafter, at his suggestion, they consulted Doctor Huber, a physician in the city of New York. Upon entering the doctor's office, the *Page 499 defendant stated to him that the woman was his wife and that she experienced severe pain when sexual intercourse took place and that they had come to him for the purpose of ascertaining what the trouble was. The doctor took her into a private room in the office and made an examination of her person, at the conclusion of which he stated to both of them that the cause of the pain and discomfort was not uncommon with young girls recently married; that it could be relieved by treatment, but if she could put up with it for a short time, in his opinion, it would disappear; that thereupon they left agreeing to return, which they never did
Doctor Huber was sworn as a witness and he corroborated the testimony of the complaining witness as to her visit to his office with a man, what was said, the examination which he made of her person and the advice which he gave. He was then asked if he could identify the defendant as the man who accompanied her to his office and he said he could not. He did state, however, that he had known Miss Levine for upwards of fifteen years and that the occasion in question was the only time she had been to his office with a man, which also corroborated her statement to the same effect.
In submitting the case to the jury the trial court was requested to charge that the jury could not "consider the testimony of Doctor Huber or any part of it as being corroborating evidence in this case." The request was refused and an exception taken. I think the request was properly refused. It was equivalent to a motion to strike out all of Doctor Huber's testimony and there certainly was in it some evidence of corroboration. His testimony, as to the examination he made and what the examination disclosed, was admissible as showing a circumstance which tended to corroborate her testimony as to the illicit intercourse with the defendant. That such testimony was admissible is established by People v. Orr *Page 500 (92 Hun, 199; affirmed, on opinion below, 149 N.Y. 616). Nor does the decision in People v. Page (162 N.Y. 272) hold otherwise. In this connection, it may be a matter of interest to note that the sentence quoted from the opinion in the Page case by Judge CRANE did not receive the approval of a majority of the court. Indeed, a majority of the court did not approve of the opinion. Only two members agreed with the writer of the opinion; two concurred in the result; one dissented and the seventh did not sit
It has many times been held in prosecutions for rape that it is proper to show the physical condition of the person raped, not that such physical condition tends to show the prepetrator of the crime but that the crime has been committed. So here it was competent for the People to show by an examination of the complaining witness made within a very short time after the offense is alleged to have taken place, that some one had had illicit intercourse with her and to this extent, at least, Doctor Huber's testimony corroborated her. It tended to show or at least the jury would have had a right to draw an inference that she had recently had illicit intercourse with some man, and from that and the other evidence in the case that the defendant was the person.
The second alleged error, as indicated, relates to a request to charge with reference to the testimony of the witness Slote. In this connection it appears that sometime after the crime is alleged to have been committed, and when it may fairly be inferred that there were rumors as to the danger of the engagement being broken, the witness Slote while taking lunch with the defendant, the complaining witness and several other persons, asked the defendant when he was going to be married to Miss Levine and he replied, according to her testimony, "physically, spiritually, bodily and morally they were married, ritually they will be married very soon." The *Page 501 court was asked to charge, referring to this conversation, "that if they find the words `spiritually, physically and morally married' were employed, still if they find that they were used at a time and under such circumstances as to indicate that they were not intended by the defendant as an assertion that he had had sexual intercourse with the prosecutrix that they cannot then consider such testimony as being corroborating evidence of the act of sexual intercourse."
The request was refused and an exception taken. Personally, I do not think error was committed in refusing this request. The intent of the defendant in using the words had to be determined largely from what the words indicated, taken of course in connection with all the surrounding circumstances. But if it be assumed that error was thus committed it did not harm the defendant, and under section 542 of the Code of Criminal Procedure should be disregarded. The court had correctly charged the jury down to this point and immediately following the refusal to charge, defendant's counsel made the following request: "I request your Honor to charge that under the law they have the right to consider that and to say whether those words were employed and what they meant if they were employed." The court responded, "I so charge you, gentlemen." What the counsel had in mind by the use of the words "the right to consider that" was what he had asked the court to charge in the preceding request. The court, in charging the latter request, adopted counsel's suggestion and the jury must have so understood it. The latter request as charged was favorable to the defendant and fully protected his rights so far as the testimony of the witness Slote was concerned.
I think there was sufficient corroboration in this case. Corroboration may be by circumstantial evidence. (Boyce v.People, 55 N.Y. 644; People v. Gumaer, 80 Hun, 78.) *Page 502 In actions of this character, the sexual intercourse and the immediate persuasions and inducements to bring about consent are very rarely proved by the evidence of third persons. They must from the necessity of the case be inferred from all the facts and circumstances connected with the parties involved; that the man had the opportunity and that the relation of the parties was such that there was likely to be that confidence on the part of the woman which induced her to consent. (Armstrong v. People,70 N.Y. 38.)
The testimony of the witnesses Kaplan and Weinberg in a large measure corroborates the complaining witness. Kaplan and Weinberg were mutual friends of the parties. Each, having heard that the engagement was broken, sought to bring about a reconciliation and they, or at least one of them, after accusing the defendant of having ruined the complaining witness and having "lived with her as man and wife," suggested that he ought to marry her. The response which the defendant made to the suggestion was that the matter had gone too far; that she had dragged him into court (which must have referred to the institution of the present proceeding since no other is suggested); that he had offered her $1,500 and a year's rest, and to support her with good food and clothes if she would not go to court; that she had gone to court and he would not marry her.
This testimony, which is uncontradicted, taken in connection with the other evidence in the case, I think fairly establishes the guilt of the defendant. He had a fair trial and there are no errors which call for a reversal. The judgment should be affirmed.
COLLIN, CUDDEBACK and HOGAN, JJ., concur with CRANE, J.; HISCOCK, Ch. J., and CHASE, J., concur with McLAUGHLIN, J.
Judgments reversed, etc. *Page 503