The defendant appeals from a judgment of the Cburt of General Sessions of the county of Hew York, convicting him of the crime of rape in the first degree, for which he was sentenced to imprisonment in a State’s prison for a term of not less than ten years nor more than nineteen years and six months.
He admits that he had intercourse with the complaining witness at the time stated in the indictment, but alleges that it was with her consent. The complaining witness was at the time between nineteen and twenty years of age, and engaged as a domestic in an apartment in a large building, there being several similar apartments on the same floor. The defendant was what is termed in the record an “ elevator boy,” engaged in operating one of the elevators. The record fails to disclose his age, but it‘may be inferred from a statement made by him at the time he was arraigned and pleaded to the indictment that he was somewhat younger.
The complaining witness testified that between three and four o’clock on the afternoon of December 5, 1911, while she-was alone in the apartment, the bell to the front door rang,, which she answered, and, on opening the door, she saw the defendant; that she took the chain off the door, and he came into the hall, gave her a letter, and asked her for a drink of whisky; that she thereupon took him to the kitchen and gave him a glass of it; that after he drank it he forcibly took her onto a bed in an adjoining bedroom and ravished her. She admitted, on cross-examination, that for three or four months t previously she had sustained very intimate relations with the defendant; that he had frequently hugged, kissed and “wrestled” with her; that on four or five previous occasions while she was alone she had permitted him to enter the apartment, on two of which she had given him whisky, and on each of which he was in her room and in her bed. Her own lan*278guage is: “ He was in my room; he was laying in my bed about five times; but he didn’t do me anything.”
Her testimony that on the occasion in question he used force, and she resisted, is not corroborated in any respect. She did not state that she attempted to make any outcry in going from the kitchen to the bedroom, not even then, until they were on the bed; and when asked what she then said to him, answered, “ I told him to go to hell.” She further stated that after he had accomplished his purpose and started to leave, “I called him back and I said ‘ I ain’t going to tell this to my mistress;’ ” but she subsequently qualified this statement by saying that she told him she would tell her mistress, which she did soon after her return.
It is urged by the learned district attorney that there is some corroboration as to the resort to force, in the testimony of a physician to the effect that he had examined the complaining witness within five or six days after the occurrence, and discovered “ black and blue marks on the skin of both thighs, on the inner parts.” But there was nothing to connect such marks with any act of the defendant, the complaining witness not even mentioning them or claiming that she was injured by the defendant where they appeared.
The defendant, as already indicated, strenuously denied that ■ he had resorted to force, or had had intercourse with the complaining witness against her will. He made no attempt to escape, and when arrested frankly admitted that the intercourse had taken place. While it may be true that there was a- question of fact for the jury, nevertheless, I am of the opinion that, when all the testimony is considered, there is so much doubt about the defendant’s guilt that the conviction ought not to be permitted to stand, but justice requires a new trial should be ordered. (Code Grim. Proc., § 527.) Sir Matthew Hale’s statement in regard to the crime of rape has frequently been approved by the courts. He said: “ It must be remembered *279that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.” (1 Hale P. C. 635.) The statement is peculiarly applicable here, since "the complaining witness is white and the defendant colored.
The judgment of conviction should therefore, be reversed and a new trial ordered.
Miller, J., concurred.
Judgment affirmed.
NOTE ON EVIDENCE IN PROSECUTIONS FOR RAPE
ADMISSIBILITY GENERALLY.
Hearsay inadmissible. Holleway v. State, 113 S. W. (Tex.) 198. Evidence of the finding of a hair ornament of the prosecutrix at the place of the alleged occurrence, held admissible. State v. Armstrong, 167 Mo. 267.
The testimony of the prosecutrix’s father that on the night of the alleged rape he searched for her in town, and could not find her, held admissible to corroborate her testimony, where she located the place of the crime outside of the town. Knowles v. State, 44 Tex. Crim. 322.
Evidence of tracks and of signs of a struggle at the place of the alleged offense, or of the absence of such signs, held admissible, provided the locality is sufficiently identified. Roberts v. State, 122 Ala. 47.
In a prosecution for an assault with intent to ravish in a field of growing wheat, evidence that five or six weeks afterwards and also after harvest, an examination was made, and no signs of a struggle found, held inadmissible for remoteness. Ulrich v. People, 39 Mich. 245.
Held error to permit witnesses who had lived near defendant’s home to testify that they had heard noises indicating distress at or near the house, when they could not testify as to who made the noises, or as to what they were about. Baker v. State, 82 Miss. 84.
In a prosecution for assault with intent to commit rape, defendant’s question of prosecutrix as to her motive in examining the house to see if he had stolen anything held properly excluded. State v. Neal, 178 Mo. 63.
*280Where crime committed by accused on his own daughter, the only witness for the people, defendant may show by the evidence of other witnesses, that the daughter had made similar charges against other men, though falsely, even though the daughter has denied, on cross-examination, that she made such charges. People v. Evans, 72 Mich. 367.
Evidence that prosecutrix had desired, from the beginning, to settle the matter, held admissible. Huff v. State, 106 Ga. 432.
Error to exclude evidence that the mother of the girl alleged to have been violated, agreed to drop the prosecution for a money consideration, she being a witness on the trial. McMath v. State, 55 Ga. 303.
Held no error to reject testimony tending to show that the prosecutrix and her father had offered to discontinue the case for one hundred dollars,, in the absence of any evidence to show an attempted extortion. State v. McDevitt, 69 Iowa, 549.
A letter of prosecutrix’s mother, to defendant, offering to hush up the-matter for a consideration, held inadmissible. State v. Knock, 142 Mo. 515.
Evidence, on cross-examination of prosecutrix, that her father was opposed to the prosecution, held inadmissible. Wellborn v. State, 116 Ga. 522.
Anything that tends to show the motive of prosecutrix in instituting the-prosecution, or to affect her credibility, held admissible. Curby v. Territory, 4 Ariz. 371.
Where the case depended almost wholly on the evidence of the prosecutrix, and the proof was not very decided on the fact of assent, held, error not to permit the defendant to ask prosecutrix upon cross-examination, whether she voluntarily made statements of the matter soon after it occurred, and whether she prosecuted defendant voluntarily or at the instigation of others. Rogers v. People, 34 Mich. 345.
Immaterial evidence as to the relations existing between the defendant, and the prosecutor and their situation, in so far as such evidence has any bearing on the guilt or innocence of the defendant, held inadmissible.. Clymer v. Commonwealth, 64 S. W. (Ky.) 409.
Testimony that defendant was living apart from his wife held inadmissible. Haulish v. Boller, 72 N. Y. App. Div. 559.
*281SAME—AGE OF COMPLAINANT.
Where the mother of a prosecutrix under the age of consent testified to her age, and the prosecution refrained from offering further evidence of the fact on the assurance of defendant’s counsel that no question was made that she was under the age of consent, it was held that the exclusion of evidence to discredit the mother was no ground for reversal. People v. Morris, 12 N. Y. Supp. 492.
Evidence held insufficient to show complaining witness to be under eighteen years of age. People v. Marks, 26 N. Y. Crim. 259.
SAME—APPAREL OF DEFENDANT.
Defendant’s hat, worn on occasion of commission of crime, held admissible against him. State v. Neal, 178 Mo. 63.
Blood stains considered, and in this case held too remote, and inadmissible. State v. Alton, 105 Minn. 410.
SAME—BIRTH OF ISSUE.
The fact that a child was born 292 days after prosecutrix testified that defendant had intercourse with her, held not to discredit her testimony, although ordinary period of gestation is 270 to 290 days, where she testified to another act of sexual intercourse within 280 days of the birth. People v. Flaherty, 27 App. Div. 535.
Proof of the birth of a child eight months after the date of the commission of the crime set forth in the indictment, while evidence that a crime had been committed, is not evidence that defendant was guilty of the crime. People v. Robertson, 18 N. Y. Crim. 16.
SAME—CHASTITY OF PROSECUTRIX.
General reputation for lack of chastity admissible. Brennan v. People, 7 Hun, 171.
While a witness as to character may, of his own motion, say in what respect the character of the person asked about is good or bad, the party introducing him can only interrogate him as to the general character of such person, and therefore defendants charged with rape cannot prove by their witness as to the character of the prosecutrix that such character was bad for virtue. State v. Hairston, 121 N. C. 579.
*282SAME—CONDITION OF DEFENDANT.
Held admissible as part of the res gestae. People v. Hosmer, 66 App. Div. 616.
Evidence of impotency or potency admissible. People v. Row, 135 Mich. 505.
Evidence of intoxication which would go to prove incapacity for committing crime charged, held admissible. Nugent v. State, 18 Ala. 521.
SAME—CONDUCT OF ACCUSED.
.Evidence of violent conduct of defendant in the presence of prosecutrix and immediately after the alleged rape, held admissible. Conkey v. People, 1 Abb. Dec. 418.
On a prosecution for sexual intercourse with a female under the age of consent it was competent to show that the defendant' altered a parish register so as to make it appear that the girl was over that age, and that after she became pregnant, he attempted to obtain custody of her by means of a forged letter. People v. Flaherty 27 App. Div. 535.
Evidence of previous solicitations by defendant held admissible to show the existence of a motive or passion. State v. Knapp, 45 N. H. 148.
Error to submit to the jury evidence that defendant had admitted that he “ insulted the girl ” as corroborative or prosecutrix’s testimony, since there was no necessary legal connection between an insult and a felony. People v. Page, 14 N. Y. Crim. 513.
The mere failure of defendant to deny the declaration of the prosecutrix, made out of court, charging him with the crime, when repeated to him, cannot be shown as an admission corroborative of the testimony of the prosecutrix. People v. Page, 14 N. Y. Crim. 513.
SAME—DECLARATIONS OF COMPLAINANT.
Not as a rule admissible, unless part of the res gestee. People v. McGee, 1 Denio, 19.
Dying declarations identifying the defendant as the perpetrator of the crime, held not admissible. Johnson v. State, 50 Ala. 456.
Admissibility to show by complainant or others, in corroboration, that shortly after commission of alleged act, complaint was made, and to whom, under what circumstances, when, and where. Baccio v. People, 41 N. Y. 265.
*283But details thereof, unless part of the res gestse, inadmissible. People v. McGee, 1 Denio, 19.
And particulars of complaint may be brought out by defendant on ■cross-examination. Conkey v. People, 1 Abb. Dec. 418.
Force of testimony as corroboration does not depend entirely on lapse of time between the commission of the act complained of and the complaint, but in connection with all the surrounding circumstances, the jury ■should consider it, such surrounding circumstances being intimidation, induced by threats, or lack of opportunity. Higgins v. People, 58 N. Y. 387.
Evidence of a disclosure made by a servant, alleged to have been raped ‘by a priest, to another priest eleven months after the occurrence, the only excuse for the delay in making the disclosure being that the defendant told her that it was a sin to tell on a priest, and that she would go to hell if she did, is not admissible in confirmation of her testimony on the trial. People v. O’Sullivan, 104 N. Y. 481.
Failure to complain affects only credibility of prosecutrix, as to her evidence as to force and resistance, and such failure may be proved, for that purpose. Walter v. People, 50 Barb. 144.
And such failure may be explained. People v. Terwilliger, 74 Hun, 310.
Testimony of complainant as to remarks made by complainant in defendant’s presence in connection with what took place between defendant and another girl upon another occasion, held inadmissible. People v. Davey, 18 N. Y. Crim. 528.
While the people may show that the victim complained of the occurrence, they cannot, on a direct examination either of the complainant or of the person to whom the complaint was made, prove the details of the complaint. People v. Freidman, 25 N. Y. Crim. 75.
SAME—DECLARATIONS OF OTHERS.
On a trial for statutory rape, evidence to support a theory that a person other than defendant was guilty was properly excluded as immaterial, where there was nothing in the case to pertinently connect such third person with the offense. Henard v. State, 47 Tex. Crim. 168.
Evidence as to declarations of third parties not in presence or hearing of defendant, held not admissible, except to contradict the prosecutrix ■or corroborate defendant’s testimony. State v. Huff, 136 N. C. 679.
*284SAME—FORCE.
May be shown by testimony of witnesses present at time, or by statements of prosecutrix made in defendant’s presence. Woodin v. People, 1 Park. Crim. 464.
Or by direct testimony or circumstantial evidence, and all the circumstances attending the commission of the act, held admissible. Griffin v. State, 46 So. (Ala.) 41.
SAME—GENERAL MORAL CHARACTER OF PROSECUTRIX.
Where, on cross-examination, the prosecutrix testified that she did not go with a man to a liquor shop, and afterwards accompany him to a lumber yard, and endeavor to get him to have carnal intercourse with her,, held error to exclude evidence contradicting her and establishing such, facts. Brennan v. People, 7 Hun, 171.
Want of chastity must be shown by general reputation, and not by proof of specific acts. People v. Jackson, 3 Park. Crim. 391.
But individual acts with defendant prior to the alleged crime, may be proved, as such evidence tends to prove consent. People v. Abbott, 19 Wend. 192.
Defendant cannot show, either by cross-examination of the woman or by other evidence, that she declared herself pregnant by other men. Commonwealth v. Regan, 105 Mass. 593.
The magistrate before whom a complaint is made cannot be called tosíate what the complaining witness stated to him as to her connection with other men, unless such inquiry is made for the purpose of showing a. discrepancy in her testimony. People v. Abbott, 19 Wend. 192.
Proof of good character of prosecutrix admissible on behalf of the state,, only when same has first been attacked. People v. Hulse, 3 Hill, 309.
SAME—OTHER ACTS.
Proof that the defendant admitted that he had committed a like crime-upon another daughter and had been convicted therefor, held inadmissible. People v. Bills, 23 N. Y. Crim. 188.
SAME—SUBSEQUENT OFFENSES.
The admission of evidence that subsequent to the commission of the rape-charged in the indictment, defendant committed another rape upon the-same female, held error for which the judgment of conviction should be reversed. People v. Robertson, 18 N. Y. Crim. 16.
*285BURDEN OF PROOF.
Is on the State to prove every fact and circumstance essential to the guilt of the accused. Jeffers v. State, 20 Ohio Cir. Ct. 294.
Also upon the State to prove force and lack of consent. People v. McDonald, 9 Mich. 150.
But otherwise when the female is under the age of consent. State v. Smith, 9 Houst. (Del.) 588.
On the State to prove intent to use force and commit rape. Warren v. State, 51 Tex. Crim. 598.
Where female is under the age of consent, the burden is on the State to show that she was in fact under that age. State v. Deputy, 3 Pennew. (Del.) 19.
Where chastity of female, or ner good repute, is material to the issue, the State need not show it, but on the contrary the burden is upon the defendant to show her bad reputation or unchaste condition. Commonwealth v. Howe, 35 Pa. Sup. Ct. 534.
In Nebraska, it has been held that it is incumbent upon the State to show the accused to be over eighteen and the prosecutrix under that age, or, if she was over fifteen, then her previous state of chastity. George v. State, 61 Neb. 669.
Is on defendant to establish age, when defense is that he is under age where carnal acts possible. State v. McNair, 93 N. C. 628.
Where evidence of impotency is introduced by defendant, the burden of showing potency is upon the State. Jeffers v. State, 20 Ohio Cir. Ct. 294.
CORROBORATION.
Evidence examined, and held insufficient on account of lack of corrobo- - ration. People v. Mormon, 26 N. Y. Crim. 173.
Not necessary that prosecutrix be corroborated upon all material points of her testimony. People v. Terwilliger, 74 Hun, 310.
Corroborating evidence need not include testimony of an eye-witness of ■the act itself, or extend to everything said or done. People v. Adams, 72 App. Div. 166.
May be by circumstantial evidence. People v. Grauer, 12 App. Div. 464
*286Corroboration held sufficient. People v. Biglizen, 112 App. Div. 225.
See also Note on Corroboration in Rape Cases, Vol. 24, p. 7, this Series..
PRESUMPTIONS.
Non-consent is presumed, in a prosecution for assault with intent to commit rape. People v. Stamford, 2 Wheeler Crim. 153.
Where accused is under fourteen years of age, it will be presumed that" he was incapable of committing rape. Paine v. Commonwealth, 110 S. W. (Ky.) 311.
But this may be rebutted. People v. Randolph, 2 Park. Crim. 174.
WEIGHT AND SUFFICIENCY—CARNAL KNOWLEDGE.
Proof of penetration, necessary to be proved beyond a reasonable doubt,, may be made by direct or circumstantial evidence. People v. Tench, 167 N. Y. 520.
SAME—FORCE, RESISTANCE AND LACK OF CONSENT.
Evidence held insufficient. Walter v. People, 50 Barb. 144.
The sufficiency of the proof of force and resistance depends upon the-surrounding circumstances. People v. Connor, 126 N. Y. 278.
Evidence held sufficient. People v. Connor, 126 N. Y. 278.
Failure to make outcry or complaint raises presumption of consent ifi prosecutrix had opportunity so to do, particularly if coupled with other-circumstances tending to show consent. Walter v. People, 50 Barb. 144.
But where there is other evidence of resistance, the failure to make-outcry or complaint, held not sufficient ground for setting aside a verdict. Higgins v. People, 58 N. Y. 377.
For insufficient explanation of failure to make outcry or complaint, see Walter v. People, 50 Barb. 144.
Defendant may be guilty of improprieties both in speech and in act, even amounting to aggravated assault, but if there is no evidence of intent to-overcome resistance with force it is insufficient to sustain a verdict. People v. Kirwan, 22 N. Y. Supp. 160.