*

judge he was standing away from the car three or four feet, something like that-away from the car. I say the conductor was about three or four feet away from it when it started. The truck was about eight feet from it, more or less; so the conductor was about half way between the car and truck. I did not hear any signal, or shout, or anything of that sort, by the conductor when the car started."

[2] Assuming the truth of this statement, the situation is consistent with reasonable care on the part of the defendant's motorman. There had been an accident. The motorman and conductor were engaged in getting the truck back upon the Second avenue. track. The motorman, we may assume, knew that the conductor was manipulating the trolley pole. The conductor was on the righthand side of the car, about four feet away, and well to the rear. If the motorman was watching him and operating his car at the same time, in an effort to get the truck back into position, he would not be in a position to observe the approaching ice wagon. His attention would be divided between watching the conductor, who was from his viewpoint on the right-hand side of the car, out of danger, and operating the levers which control the car. The ice wagon came up on the side of the car, and swung around in a half circle until it passed the right-hand corner of the car, about eight feet away, and the conductor was between the wagon and the car, walking backward, with the car moving. If the car was started before the wagon came into view of the motorman, and while his attention was taken up with the problem of getting his car into position, it was not negligent of him to continue to let the car move backward, in view of the position of the conductor and the fact that he received no signal to stop. The conductor was at the rear of the car, walking backward, so one witness says, and the motorman was not bound to stop the car without a signal, unless he was in a position to know the danger to which the conductor was exposed, and the driving of the ice wagon around the end of the car was not one of the things he was bound to anticipate under the circumstances of this case. This view of the case is, we believe, supported by the weight of evidence, and, while we are persuaded that the plaintiff's intestate might properly be held to be free from negligence under the circumstances disclosed, we are at the same time disposed to hold that the evidence is not strong in support of the theory of negligence on the part of the defendant, and that the court very properly set aside the verdict and granted a new trial.

Our conclusion is that it was error to set aside the verdict on the ground that there was "no evidence from which the jury should be permitted to find the plaintiff's intestate free from negligence contributing to the injury or the defendant negligent." We do think, however, that an order setting aside the verdict on the ground that it was against the weight of evidence would have been proper. The order is therefore affirmed; costs to abide the event.

HIRSCHBERG and CARR, JJ., concur. THOMAS, J., votes to affirm, upon the ground that no negligence on the part of respondent is shown, with whom JENKS, P. J., concurs.

(152 App. Div. 495.)

PEOPLE v. SEAMAN.

(Supreme Court, Appellate Division, Second Department. September 10, 1912.) RAPE ( 54*)-EVIDENCE-CorroboRATION.

Testimony of the sister of complainant, in rape, that defendant, who was riding with them, took complainant from the wagon, and carried her over a fence, that on account of the darkness she could not thereafter see them, but that she heard complainant's cries for help, and that on their return complainant said it hurt her, is not corroboration of penetration, necessary, under Penal Law (Consol. Laws 1909, c. 40) § 2013. for conviction.

[Ed. Note. For other cases, see Rape, Cent. Dig. §§ 83, 84; Dec. Dig. § 54.*]

Burr, J., dissenting.

Appeal from Trial Term, Dutchess County.

Frank Seaman was convicted of rape in the second degree, and appeals. Reversed, and new trial ordered.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, WOODWARD, and RICH, JJ.

John F. Ringwood, of Poughkeepsie, for appellant.

John E. Mack, of Poughkeepsie (Edward A. Conger, Asst. Dist. Atty., on the brief), for the People.

WOODWARD, J. The story of the complaining witness, who was 161⁄2 years of age at the time of the alleged assault, is to the effect that she was employed as a domestic in a home in Poughkeepsie; that she and her sister, who was then under the age of 18 years, having a half day off, in the latter part of April, 1911, went to the home of the defendant, who lived upon a farm about three miles out of the city, to visit him. The defendant lived with his parents, and was engaged at the time in delivering milk from a wagon which he drove daily into the city. He was about 21 years of age. She says that they stayed at the farm from about 2 o'clock in the afternoon to 8:30 in the evening, without supper, and that at about 8:30 in the evening the defendant hitched his horse to a milk wagon and started to take them home; that when about halfway to the city the defendant got her to drive the horse, while the defendant tied a handkerchief around her sister's mouth to prevent her "hollering," and that when this had been done the complaining witness turned the reins over to the sister, and that the defendant pulled her off the wagon, carried her over a stone fence, laid her down, and consummated his purpose. She says that she was resisting all the time, "hollering" loud enough so that her sister could hear, and that after the act had been consummated she returned with the defendant to the wagon, where she told her sister that it hurt her, and that the defendant had told her it would not. She says they then got upon the wagon, and the defendant drove her to the home of her employer, where she and her sister got out, and that nothing was said to any one about what had occurred, except what she had said to her sister.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The sister, who was the only other witness called by the people, except as to the age of the complainant, testified to substantially the same state of facts, but admits that she took off the handkerchief from her mouth after the defendant had taken her sister from the wagon. She says that she heard her sister's cries for help, but that she would not leave the horse and let him go home, because she was not going to walk home. Her whole testimony is decidedly flimsy. She says, however, that the night was very dark, and that she could not see the defendant and her sister after they got over the stone fence. The complainant says that the defendant took her a little ways out into the field, and that he had sexual intercourse with her there.

There are two provisions of the Penal Law which are important to be considered upon this appeal. Section 2011 provides that:

"Any sexual penetration, however slight, is sufficient to complete the crime." And section 2013 provides that:

"No conviction can be had for rape or defilement upon the testimony of the female defiled, unsupported by other evidence."

We may assume that the complainant's testimony that the defendant had "sexual intercourse" with her out in the field complied with the requirement that there should be penetration in some degree, but we shall search the record in vain for any corroboration of this alleged fact. The sister does not pretend that she saw the act. All that she says is that Jessie told her that it hurt her. It is only what the complainant told her. There is absolutely no evidence of soiled clothes, of any indignant accusation, or of any declaration of the fact to any one who was not present. The rule in such cases is that the corroborative evidence, whether consisting of acts or admissions, must be at least of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime. The corroboration must extend to every material fact essential to constitute the crime (People v. Farina, 134 App. Div. 110, 111, 118 N. Y. Supp. 817, and authority there cited); and as the crime of rape depends upon actual penetration, however slight, the mere fact, if it was a fact, that the defendant took this girl from the wagon, and carried her over the fence and out into the darkness, is not evidence of penetration. It might be evidence of an attempt to commit rape, but it is not evidence of the consummation of that crime. While the fact of penetration may be established, like any other fact, by circumstantial evidence, yet the same rule as to the weight and effect of that species of evidence must apply in the establishment of that fact as applies to any other essential element of crime. People v. Tench, 167 N. Y. 520, 523, 60 N. E. 737.

"The testimony of the physician that it was possible to accomplish slight penetration and leave no trace, if there was no force," say the court in the last above cited case, "even if admissible, was not sufficient to justify the jury, in the absence of proofs of any marks upon the girl or other proof of penetration, in finding that fact. As that was an essential and indispensable ingredient of the crime of which the defendant was convicted, and as his guilt was required to be proved beyond a reasonable doubt, it follows that

his conviction was illegal, unless that fact naturally flowed from the circumstances proved, was consistent with them all, and they were such as to exclude to a moral certainty every hypothesis which did not include its perpetration. The arbitrary presumption of the law is that the defendant did not perform the act charged, and, as the evidence was insufficient to overcome that presumption, the conviction cannot be sustained."

That is clearly the case now before us. There is no direct and positive evidence of actual penetration, even on the part of the complainant, though we have assumed that this might be inferred. But upon the corroboration as to this essential ingredient of the crime there is absolutely no evidence whatever. The only witness called does not pretend to have seen anything beyond the act of the defendant in taking the complainant from the wagon and carrying her over the stone fence. All beyond that comes directly from the complainant. They were the mere declarations of the complainant, and were no stronger than her testimony. A witness cannot generally be corroborated by proving declarations, made out of court, of the same facts testified to in court. In cases of rape, disclosures made by the female within a reasonable time after the outrage are admissible as a part of the people's case, and the female may testify when and to whom made and the nature of the disclosure. But since the disclosure comes from the complainant herself, directly or indirectly, and depends wholly upon her veracity, it is not "other evidence" in support of her version of the affair within the meaning of the statute. People v Page, 162 N. Y. 272, 276, 56 N. E. 750.

The judgment appealed from should be reversed, and a new trial ordered.

JENKS, P. J., and RICH, J., concur. HIRSCHBERG, J., concurs in result. BURR, J., dissents.

(152 App. Div. 438.)

PEOPLE v. KLINE.

(Supreme Court, Appellate Division, Second Department. September 10, 1912.) RAPE (§ 54*)—EVIDENCE-CORROBORATION.

Testimony of the sister of complainant, in rape, that while defendant was riding with them he got down from the wagon, asked complainant to do so, and on her refusal pulled her down, took her over a fence, and, after remaining there some time, they returned without saying anything, and rode home, is not corroboration of penetration, necessary, under Penal Law (Consol. Laws 1909, c. 40) § 2013, for conviction.

[Ed. Note. For other cases, see Rape, Cent. Dig. §§ 83, 84; Dec. Dig. § 54.*]

Burr, J., dissenting.

Appeal from Trial Term, Dutchess County.

Frank Kline was convicted of rape in the second degree, and appeals. Reversed, and new trial ordered.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, WOODWARD, and RICH, JJ.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

James E. Carroll, of Poughkeepsie, for appellant.

John E. Mack, Dist. Atty., of Poughkeepsie (Edward A. Conger, Asst. Dist. Atty., of Poughkeepsie, on the brief), for the People.

WOODWARD, J. The judgment of conviction in this case must be reversed. It is not to be distinguished in any essential particular from the case of People v. Seaman, 137 N. Y. Supp. 294, decided herewith, where the complaining witness was a sister of the complaining witness in the present case, except that it does not appear in the present case that the complainant, after having been taken from the wagon and carried over the fence, in almost identically the same manner as is testified to in the Seaman Case, came back and reported the alleged fact to her sister that she had been raped. With this one factor out of the case, the story in both cases is essentially the same, and it must be admitted that it is very remarkable that two different men, under very much the same circumstances, with a sister present in both cases, should have dragged a young woman from a wagon and carried her, resisting, over a fence and out into a field, and there had sexual intercourse with her. But, aside from the probabilities of the case, my position, as in that of People v. Seaman, is that there is absolutely no evidence of penetration, and without this the crime of rape cannot be established. This was squarely held in People v. Tench, 167 N. Y. 520, 60 N. E. 737, where the court say:

*

"A careful scrutiny of the testimony renders it obvious that if the proof was sufficient to establish actual penetration, however slight, the conviction of the defendant was justified. It is not pretended that there was any direct evidence of that fact. The prosecution, however, claims that it might be established by circumstantial evidence, and that there was proof of circumstances which justified the jury in finding it. * While it may be established, like any other fact, by circumstantial evidence, yet the same rule as to the weight and effect of that species of evidence must apply in the establishment of that fact as applies to any other essential element of crime. The evidence discloses that the defendant had previously been guilty of most atrocious and loathsome practices upon this young girl. He was found by the police in a room alone with the girl, who was lying upon the bed in a position and under conditions which left no room for doubt as to defendant's purpose in taking her there. * * While the proof established the opportunity and the purpose of the defendant, it did not establish the act, but tended quite as strongly to show that he was surprised before the act was performed. Under these circumstances, while the record discloses a condition which indicates that the punishment inflicted upon the defendant was justly merited, and that he should have been convicted of an attempt to commit the crime of rape, for which he might have been punished, still, for the error pointed out, it is our duty, in the just and proper administration of the law, to reverse the action of the trial court."

Here there is no evidence whatever of actual penetration, with the exception of that furnished by the complaining witness, who says that the defendant had sexual intercourse with her at the time that she was taken from the wagon. But she did not make any such claim at the time. She did not tell her sister, and the young man who was with her, that anything had occurred. She just came back to the wagon and rode home with the defendant; the sister and the young man being in the rear seat. The statute says there