The People v. . Bransby

There was no error committed by the Court of Sessions in their refusal to quash the indictment then on trial before them, on the ground that the cause therein charged was merged in the crime of rape. This motion was doubtless based on the provision (2 R.S., 726 [marg. paging], § 42), that "if there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed." The two indictments were not for the same offense; nor by the admission made in regard to it does it appear that the two indictments were for the same matter, although charged as different offenses.

Had it appeared that in fact the indictments were for the same matter, it is seen that the statute does not declare that on the finding of a second indictment the first indictment shall be null and void, but is to be quashed. It can only be quashed by some action of the court. This is clearly contemplated by the language of the statute. This question has been adjudicated. The Court of Sessions but followed the views of the Supreme Court in the case of The People v. Monroe Oyer and Terminer (20 Wend., 108), who said "the time when a court will entertain a motion to quash an indictment rests, in some degree, upon the exercise of a sound discretion." And they further held it to be the true construction of the statute, that "it refers to the case of an application made for that purpose, before the trial of either indictment has commenced;" and added, with clear good sense, "it clearly could not have been the intention to give to the action of the grand jury, in finding the second indictment, an effect that would break up a pending trial upon the first." * * * "Such a view of the section would involve a folly and absurdity that should not be imputed to the makers of the law, when effect may be given to it consistent with sound principles." See also, People v.Rynders (12 Wend., 425), People v. Barry (10 Abb., 228), for a like construction. If the defendant's case had been shown to have come within the provisions of this statute, and he had made his motion in reasonable time, he was entitled to relief. But this was not shown. The second indictment was not seen by the court, and there was no evidence that the felony charged in the second, included the misdemeanor charged in that on trial. The offenses may have been entirely distinct, and the defendant punishable for both.

This point has not been seriously urged on the argument. The remaining objections raised in the case, and doubtless those upon which the General Term reversed the judgment, are those taken to the charge of the judge to the jury. Four propositions of the judge's charge, only, appear. The first and fourth are not excepted to. The second and third propositions charged, only, are here for review. The second is as follows: "2. If this defendant enticed this girl to the Sherman House, under the belief, on her part, that he did it with a friendly purpose, and the jury think, after she found out that he had an unlawful purpose in view, failed to make any more resistance than she did, from fear, or under the belief that further resistance would be useless, then the defendant must be found guilty."

The defendant had no reason to complain of this part of the charge. It was more favorable to him than he was entitled. This will appear more intelligible and clear by a reference to the evidence with which this portion of the charge is connected, and without which it cannot be duly appreciated. This reference to the evidence is also important because circumstances in it which relate to the motives of the parties (complainant and defendant) as matters of fact, have been pressed into the argument. Though with these facts we have really nothing to do, the jury having disposed of them, yet they have been discussed. I may remark, in regard to them, that I have been unable to see anything in them that will help the defendant, or that should make him desire to have them reviewed. This girl, the complainant, then recently from Prussia, had arrived at Syracuse in a train of cars, at midnight; she was a stranger in a strange land, and in a strange city. She was without a friend, or even an acquaintance, upon whom she could call for assistance. She was without the knowledge of the language of the people, except the use of two or three words, to call upon or make known her wants, even to strangers. She was dependent upon her powers of observation, of the customs and habits and acts of others, and by the aid of signs, to make known her own wants. She had arrived at her destination for the day. She could proceed no further till the morning train should depart for Geneva. Wearied and fatigued, her immediate want was a lodging place for the night; and for this, of necessity, her instincts, as well as her observation, would direct her to look to those who assumed to be the agents or officials of the railroads or hotels. It was not, therefore, strange, but most natural, for such a person, in such condition, to suppose that those who assumed to act as agents were really such. The taking of her satchel and the motion or signal given her by the defendant, to follow, was, to her, equivalent to a declaration on his part that he was a porter, or other authorized person, whose business or duty it was to conduct her to a lodging place. The defendant knew she could not speak English, and he knew she was alone. He was the agent for the purpose of neither the railroad or the hotels. Under the pretense of an agency, or of a right to take charge of her, he took her satchel and motioned her to follow, which she obeyed. Why should she not? He had no right to take, and was guilty of trespass in taking her satchel, but for a proper purpose. He had no right, by such signals, to invite her to follow him, but with a kind motive. She did follow him about and along the streets. He sought admission at one place, and could not obtain it. He moved on, and she still followed. He took her to the Sherman House; he engaged a room in the third story, and entered it with her. He soon brought her a glass of liquor, which she had not desired, and urged her repeatedly to drink. She tasted, but refused to drink. He locked the door on the inside, and put the key in his pocket; he undressed himself, motioning her to the bed. She did not accept the invitation, but sat down in a chair by the window. He went to bed. She lost herself in a stupor of sleep, and was awakened by his arms about her neck, striving to force her upon the bed. She struggled, but he succeeded. If there is anything in these facts that impeach or render suspicious the conduct of the complainant, or that excuse or justify that of the defendant, I have not been able to see it. The jury did not see it; they seem to have duly regarded and appreciated this evidence. The real and only question, it will be seen, is, did all this constitute an assault and battery? It is clear that it did, in the view taken by the jury, and yet the judge, by implication, left it to the jury, in this proposition, to find that all this would not be an assault and battery if she did not make all the resistance she could, unless the failure to make such extreme resistance was from fear, or under the belief that further resistance would be useless. Such is not the law. The judge erred in this, in defendant's favor. This qualification by the judge was calculated to, though it did not mislead; it was entirely too favorable to the defendant. If the complainant made any resistance whatever — if she was asleep when he seized her — if the defendant seized upon her while asleep or in a state of stupor, which is the evidence and the only evidence on the subject — it was an assault and battery. If she did not invite, or willingly consent to his presence and to his conduct (of which the case furnishes no evidence), he was guilty of an assault and battery. I see no elements of defense, or cause for remarkable suspicion, that the complainant, under the circumstances in which she was placed, did not object to the defendant's entering the bedroom with her — that she did not order him to leave the room — that she did not protest against the impropriety of his conduct in locking her door and putting the key in his pocket, and in going to bed, uninvited, in her room — and that she did not rush to a police office to complain of his outrage upon her. She did not invite, she had no language to forbid it. How could one in her helpless condition, do these things? A more natural reason than depravity can be found for her conduct. The jury doubtless thought, as the evidence justifies them in thinking, that these circumstances, instead of being evidence of her unchastity, was only the evidence of an infernal design on the part of the defendant, which she neither knew how, or had the power to resist, and which had made her a victim. It is elementary law that every restraint of one's liberty under the custody of another, in a goal, house, stocks, or in the street, is, in law, an imprisonment; and whenever it is done without proper authority, it is false imprisonment. And this is commonly joined to an assault and battery. In civil actions, every imprisonment includes a battery, and every battery an assault. (2 Just., 589; Bull. N.P., 22;People v. Hays, 1 Hill, 351.)

In the case of The People v. Hays (supra), the prisoner decoyed a female under ten years of age, into a building for the purpose of ravishing her, and was there detected while standing within a few feet of her in a state of indecent exposure. It was held that though there was no evidence of his having actually touched her, he was properly convicted of an assault with intent to commit a rape. The features of these cases, to that extent, are similar (assuming the verdict to be just). The decoying was alike, imprisonment being added to this case, with an actual battery proved. (See also, 2 Park. Cr., 27.) The judge at the trial, in his charge upon this proposition, improperly introduced the law in relation to the resistance demanded of complainants in cases of rape, which had no application to a case of assault and battery. Although the law thus charged had no application to the case, there was no error committed in this proposition, to the prejudice of the defendant.

The next proposition of the judge's charge excepted to, is as follows: "3. If the jury think that the defendant took this girl up into the room and locked himself in there with her with intent to have connection with her, she being ignorant of that intent on his part, then he is guilty of an assault, although she may have afterwards assented to his wishes, and to his having connection with her."

I have been unable to detect unsoundness or error in this proposition to the prejudice of the defendant. This instruction of the judge, even if technically erroneous, it is seen did not work any injury to the defendant. This part of the charge related to an assault only. It had no influence upon the mind of the jury, for they have found the defendant guilty of the higher offense of assault and battery; showing that they entirely disregarded this speculative theory of the judge, which really had no evidence upon which to base it. Whether in criminal prosecutions the proposition that obtains in civil actions, that every imprisonment includes a battery, and every battery an assault, is applicable, I do not deem necessary to discuss in this case. If the evidence establishes anything, it establishes just the offense for which the defendant was indicted, and of which the jury have found him guilty.

The General Term have not furnished any opinion containing their reasons for their reversal of the judgment of the Court of Sessions. But the suggestions upon the brief, and the authorities cited, lead us to suppose that there is another ground for the decision, to wit, that the evidence on the trial having sustained the charge for a much higher offense, to wit, that of rape, and that the misdemeanor, or of assault and battery, was merged in the felony.

If this was the proposition upon which the judgment was reversed, it could not be regarded as sound. I think no case can be found that goes to the length of holding that on a trial for a misdemeanor, evidence tending to prove that a higher crime had been committed, would be defense to the misdemeanor. That is all that can be claimed to have been done in this case. If, on the trial for the misdemeanor, aconviction had been offered in evidence, showing that for the same act the defendant had once been convicted of a felony, it would have presented a different case, and one upon which we are not now called to pass. The objection raised here was certainly not a question of fact upon which the jury had to pass. The facts assumed did not present a question of law for the decision of the judge. The defendant had allowed to him, on the trial, all the privileges that are allowable and incident to a trial for the misdemeanor charged. He was on trial for nothing else than a misdemeanor. It is hardly becoming for him to urge, that he had committed a higher crime, and ought to be more severely punished, and therefore should be acquitted of this. Such an argument was presented in the case of Commonwealth v. McPipe (3 Cush., 187.) In that case the court used the following language: "It seems to us that this objection is not open to the defendant upon this indictment. And whenever the grand jury deem it proper to find only an indictment for manslaughter, and the party is put upon his trial for that offense, he has no right to demand an acquittal on the ground that, taking the whole evidence, the case thereon is one of killing with malice prepense. How far, in such a case, it may be proper for the court, upon its own suggestions, or upon the motion of the public prosecutor, to discharge the jury, with a view of having the case presented in another form, it is unnecessary to decide." These are sound views, and apply to this case.

What the effect of the present conviction for a misdemeanor would be, if plead in bar of the indictment for rape, is also a question not now before us. I have been entirely unable to find a good reason for a reversal of this conviction. I think the judgment of the Supreme Court should be reversed.