There was ample evidence to justify the jury in finding the defendant guilty of robbery in the third degree.
The witness Snyder, called by the People, was permitted to testify, over the objection of the defendant, to certain statements made by the complaining witness out of court and in the absence of the defendant. Under ordinary circumstances this would constitute error.
We think, however, that this evidence comes within the well-recognized exception to the general rule that when the testimony of a witness is assailed as a recent fabrication it may be corroborated by evidence of declarations of a like tenor made before the motive to falsify existed. (Robb v. Hackley, 23 Wend. 50; Ferris v. Sterling, 214 N. Y. 249; People v. Katz, 209 id. 311; Matter of Hesdra, 119 id. 615; Hill v. Erie R. R. Co., 225 App. Div. 19.)
Before Snyder was sworn, the defendant, on cross-examination of the complaining witness, had attempted to make it appear and had offered evidence tending to show that the story of the robbery had been concocted by the complaining witness when he was arraigned in the Police Court on a charge of public intoxication the morning after the robbery, for the purpose of inducing. the recorder to remit the fine imposed. Under these circumstances we think that it was proper for the People to show declarations made by the complaining witness the night before, several hours before he was arraigned and before any sentence was pronounced, and before the incentive, which defendant claims induced his story, ever existed.
The judgment of conviction should be affirmed.
All concur, except Crosby, J., who dissents and votes for reversal on the law on the ground that the receipt of the testimony of the witness Snyder was erroneous. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.
Judgment of conviction affirmed.