People v. Bartow

1 Wheel. Cr. Cas. 378

• Court: New York Court of Common Pleas
• Decided: July 15, 1815
• Status: Published

Opinion

The Court adhered to its decision, that force was an essential ingredient in this kind of felony.

Price then proceeded to the cross-examination of the prosecutrix; from which it appeared that she was upwards of fifty years of age, that she had been married, to her present husband more than twenty-seven years; that had on two or three occasions sold some trifling articles to the defendant, and had several times seen him in the neighborhood. In answer to a question asked, she said that the daughter of whom she spoke in her direct examination, was deaf and dumb. The counsel for the defendant then inquired of her"if she was aware that she had caused the dumb to speak, as upon her direct examination she had made her daughter exclaim, “ get up, mother —get up man.” The prosecutrix throughout the cross-examination was very much embarrassed; and so palpably equivocated that the defendant’s counsel proposed submitting the case without observation. This was acceded to, and the jury rendered a verdict of not guilty.

05F“ Since this trial, we have been informed that Chief Justice Thompson at a Court of Oyer and Terminer in Albany, a few months previous to his leaving the Bench, ruled, that force was not necessary to the commission of a rape; but that stratagem might be tried to supply its place; and in a case of similar character, so charged the jury.