[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 191 Under the objection and exception of the counsel for defendant, the court permitted the prosecution to prove that in August, 1886, the prosecutrix was delivered of a child at the county house. She had already testified that the promise of marriage had been made in July of the previous year, and the intercourse had taken place immediately thereafter, and upon the faith of such promise, and had continued frequently until the following December. The materiality of this evidence as to the birth of a child could only have been claimed upon the ground that it tended in some degree to support the evidence of the prosecutrix upon one of the two points upon which such support was necessary, viz., the promise of marriage and the intercourse following upon the faith of it. Authority for the admission of this evidence is claimed to exist in the case of Armstrong v. People, decided by this court and reported in 70 New York, 38. In that case the promise of marriage was alleged to have been made in May and the intercourse took place on the faith of such promise in the following August. The trial occurred in March of the next year, and the prosecution proved, by the female seduced, that at the time of such trial she was in the family way. It was held that such evidence was competent to be laid before the jury, as it proved that the woman, being unmarried, had had illicit intercourse with some one, which, under the evidence, must have taken place somewhere about the time she fixed as the time she had the intercourse with the defendant, and hence it must have tended in some degree to support her evidence. That case went to the extreme limit, as it seems to me, in the admission of such evidence. It might be slight, but, in the language of FOLGER, J., in that case, it was a fact not incompetent to be laid before the jury.
In this case, however, another and a most material step is taken. The birth of the child was in August, 1886, and the physician in attendance swore it was a full grown nine-months child, thus showing conception to have taken place as late as November, 1885, while the prosecutrix swore the seduction *Page 192 occurred on the fourth of the previous July. What support is given to the evidence of the prosecutrix that she was seduced under promise of marriage on the 4th of July, 1885, by proving that she was delivered of a child thirteen months thereafter, or in August, 1886? This fact simply proves that she had illicit intercourse with some one four months subsequent to the time when she swears that she was seduced under promise of marriage by the defendant. In the Armstrong Case the evidence showed that the female had had intercourse with some one at or about the very time she alleged she had it with the defendant. In this case it shows nothing of the kind. It neither shows or tends to show that she had any intercourse with the defendant at the time she swears she was seduced, nor does it show or tend to show that she had such intercourse with anyone at or about that time. It is said that it is a most natural consequence of the seduction that the intercourse should have continued thereafter, as sworn to by the prosecutrix, and until it resulted in her pregnancy. That is very likely true, but it does not advance us a step in the way of proving that the intercourse did commence in July. If it did then commence, it may be admitted that it was very likely to have continued, but is it any, even the slightest proof, that it did then commence, by proving the birth of a child thirteen months thereafter? In other words, is there any support given to the evidence of the prosecutrix as to the seduction by the defendant in July, 1885, by proof of this nature? I think not. How can it be said to support her evidence?
It does not tend to the support of her story that she had intercourse with the defendant on the 4th of July, 1885, under promise of marriage, because it does not tend to show that she had such intercourse at that time, or about that time, with any man. It is not a case where the prosecutrix may have been deceived or mistaken as to her dates, so that she ought not to be held to the very day or even week on or in which she placed the seduction. This is an affair of months, and there is no claim of any mistake as to date, occasion or *Page 193 place. The crime was committed, if at all, on the 4th of July, 1885.
We think it was error to admit this evidence. In Boyce v.People (55 N.Y. 644) it seems to have been assumed that if evidence of this nature had been objected to and admitted under objection and exception, it would have been error. The error was saved because the evidence was not objected to, and the prosecution stated that no reliance was placed on it as being corroborative in any degree of the prosecutrix, and, therefore, the refusal to strike it out was not error as there was no strict right to have it stricken out when it came in without objection. We fully realize the truth of the proposition that evidence in corroboration of the prosecutrix in this class of cases upon the points where corroboration is necessary, viz., the seduction and the promise of marriage, is not very easily obtainable. For that reason only such corroboration as in the natural and ordinary course of events these facts are capable of is to be required. But this rule cannot be construed to allow evidence of a fact which does not in the least tend to support the evidence of the prosecutrix upon either of the two points which require it.
That the evidence in this case, of the nature herein commented on, was of a very dangerous and probably highly injurious character and tendency we think admits of no controversy. The crime is a most atrocious one, and one which most naturally tends to enlist the sympathies of all men, and of course of jurors, in favor of the victim. In such cases, while administering the law with perfect fairness, courts must be extremely careful that no evidence of a tendency to excite or influence the resentment of jurors, and which does not tend to support the evidence of the prosecutrix, or to connect the defendant with the commission of the crime, should be permitted to go to the jury. Cases are cited by the counsel for the people where, under indictments for adultery (where that act is made a crime in some of the states) evidence of intercourse between the parties, or even acts of familiarity between them, *Page 194 prior and subsequent to the time when the adulterous act is alleged to have been committed, is competent as tending to prove such act at the time laid. The cases are not at all analogous, and the same principle does not govern. Evidence in this case tending to show that the defendant had had intercourse with the prosecutrix subsequent to the time when she alleged she was seduced might have been admissible upon the principle decided in those cases. Such evidence was given in this case by the female herself, who swore to frequent intercourse up to December, 1885, with the defendant. But the fact that the prosecutrix had a child thirteen months after her alleged seduction by defendant did not show, or tend to show, illicit intercourse with him subsequent to the alleged seduction, which would have to be the case to make it parallel with the cases cited by the counsel for the People. Nor did it, as we have attempted to show, tend to prove that she was seduced in July, 1885, by the defendant.
As the case must go back for a new trial, we think it proper to state that, in our judgment, no new principle as to the evidence required in support of an indictment in such a case as this was promulgated by the decision in People v. Plath (100 N.Y. 590), as seems to have been assumed by the counsel for the defendant herein. It was held in that case that the corroboration must be upon all the points which go to make up the crime (in that case abduction for the purpose of prostitution), and that in that case corroboration was necessary as to the taking as well as to the purpose for which the taking occurred. Hence the defendant's counsel argues that this decision makes it necessary to corroborate the prosecutrix, not only upon the question of the promise and the seduction, but also upon those of the previous chaste character of the female seduced and that she was unmarried.
This court has held that the offense really consisted in the seduction under a promise of marriage, and that the character and condition of the female simply identified the kind of person whom the statute had in view and whose purpose it was to protect. Supporting evidence never was and is not *Page 195 now required on those points. (Kenyon v. People, 26 N.Y. 203. ) The cases are perfectly consistent. But for the reasons already given this judgment should be reversed, and a new trial ordered.
All concur except DANFORTH and FINCH, JJ., dissenting; RUGER, Ch. J., not voting.
Judgment reversed.