Brady, J.
The appellant complains of injustice done him in the selection of the jury, and for the reason that two jurors were empanelled who were disqualified on account of actual bias. The contention, however, is groundless for the reason-that each of the jurors distinctly stated that, notwithstanding' an opinion or impression entertained in reference to the accusation to be investigated, he could, he believed, render a verdict, without being influenced in any way by the opinion that was-formed. This was a compliance with the statute on the subject, which was discussed in the case of Casey v. People (2 N. Y. Crim,. Rep. 194; 96 N. 7. 115), and which adjudication is an authority for sustaining the ruling of the learned recorder in the court below, who overruled the challenge for cause.
The evidence in the case .abundantly presented all the elements necessary to constitute the crime with which the appellant was charged, and the accuser was sufficiently corroborated within the legal rules applicable to such an offense. It is not deemed necessary to go into particulars upon the subject, which is not an agreeable one to elaborate. It is considered enough to say that a careful examination of the testimony in the case demonstrates the existence of all the facts necessary to establish the offense alleged.
The charge of the learned recorder presented for the consideration of the jury all the salient features of the prosecution and defense. The rules by which they were to be governed in their deliberation and which should control them in the ren[36]*36dition of their verdict, whether of guilty or not guilty, were explicitly stated, and nothing was omitted to make a full exposition of the legal principles involved in the investigation.
The requests to charge were refused by the learned recorder qualifiedly, i. e., by stating that they were declined, except as he had on the subject to which they related charged the jury. An examination of the whole charge shows that the elements embraced in these various requests were properly and duly expressed to the jury in as favorable light as the appellant could claim
The evidence established violence by the accused, fear and apprehension on the part of the accuser, as contemplated by section 278 of the Penal Code, and actual penetration without the consent of the accuser. Whatever may have been'the rule in regard to penetration in early times in England, since the passage of the statute of 9 George á, chapter 81, section 18, it has been the law of that country that a penetration, however slight, was complete inlaw. Rex v. Russen, 1 East P. C. 438; Rex v. Jennings, 4 C. & P. 249; Reg. v. Allen, 9 Id. 31; Reg. v. Hughes, Id. 752; Reg. v. Stanton, 1 C. & K. 415.
In the last mentioned case the testimony was somewhat akin to that given by the accuser in this case. There the prosecutrix said, “ I felt the parts of the defendant under mine just a littlewhich was held to be sufficient.
In this country proof of the slightest penetration has been regarded as sufficient See Hale's Pleas of the Crown, p. 628 and note; State v. Hargrave, 65 N. C. 466; Waller v. State, 40 Ala. 352; State v. Le Blanc, 3 Brev. (S. C.) 339: Guy's Principles of Forensic Medicine, Eng. ed. 1881, 60; Taylor on Medical Jurisprudence, 7th Am. ed. 701; Prof. Ogston’s Lectures upon Medical Jurisprudence, 90; Beck's Medical Jurisprudence, 229 to 233.
The.language of our statute is in accord with the rule proclaimed by these authorities, which by section 280 of the Penal Code is as follows: “Any sexual penetration, however slight, is sufficient to complete the crime.”
These views dispose of all the questions submitted upon this [37]*37appeal for our consideration, except one, namely, that the verdict is against the weight of the evidence.
The record shows that the prosecutrix was in the enjoyment of a festivity when introduced to the appellant, who induced her by invitation, though she went reluctantly, to leave the company of which she was one, and go to another room, descending a flight of stairs to accomplish that purpose; that appellant sent for drinks, and refusing to let her go directed the lights to be turned down, the door closed and locked, sought embraces from the prosecutrix, and then by force still refusing to let her go, placed her in a position where he could effect his purpose, threatening, with pistol presented, to do her bodily injury if she resisted or made any outcry; and further, that when her absence long continued, was discovered by her friends and he heard of the tumult it had occasioned, he departed suddenly by way of the nearest door leading to the street, leaving the prosecutrix, who rejoined her friends and made an exclamation indicative of what had occurred. In many of these details she is corroborated and sustained by the evidence, and as to the act of penetration, by her physical condition disclosed upon an examination by the physician called to testify upon the subject, a condition indicating violence, but showing continued virginity.
The statement of the appellant was an absolute and unqualified denial of aúy violence or attempted violence, and his explanation of asking the prosecutrix to go with him into another room was, that he desired to drink with her, and did not want to expose himself to such criticisms as might be pronounced upon him if he were seen doing that act. His examination was very unsatisfactory in its details, and failed to impress the jury in his fa.vor. We are not insensible to the fact that an accusation, such as made' against the appellant, is easily manufactured, and shoxdd be critically investigated, and we have examined the evidence in view of these elements. The offense is one well-calculated to excite great public indignation and great clamor; but the rules relating to the trial of such an offense are so guarded that the accused is protected from unjust prejudices. It would, indeed, be a disgrace to our laws if he were not fully and thoroughly secured from their influences, no mat[38]*38ter from what source they emanate or by what means created— a circumstance kept in view on the consideration of this appeal It may be here said, as germain to this subject, that while the denunciation of crime should be extolled, the continued reference to any one by particular mention and censure should not be indulged in prior to the trial of the accused.
He should have every opportunity to defend himself, no matter how convincing the developed facts may be, and his guilt should not be forestalled or his defense weakened by a spirit of condemnation incited by public criticism.
The record, however, considered in all its different phases, leaves no other impression upon the mind than that of the guilt of the appellant. The prosecutrix is young, but, in so far as the record discloses, virtuous and respectable though in humble life. Nothing, indeed, against her—except that she went to such a place of amusement—has been found, but, while there, she was conducting herself properly and indulging only in an innocent pastime. ■ It would be very extraordinary, indeed, for this court, under such circumstances, to entertain for one moment the project of granting a new trial upon the ground that the verdict was against the weight of evidence.
Free access — add to your briefcase to read the full text and ask questions with AI
Brady, J.
The appellant complains of injustice done him in the selection of the jury, and for the reason that two jurors were empanelled who were disqualified on account of actual bias. The contention, however, is groundless for the reason-that each of the jurors distinctly stated that, notwithstanding' an opinion or impression entertained in reference to the accusation to be investigated, he could, he believed, render a verdict, without being influenced in any way by the opinion that was-formed. This was a compliance with the statute on the subject, which was discussed in the case of Casey v. People (2 N. Y. Crim,. Rep. 194; 96 N. 7. 115), and which adjudication is an authority for sustaining the ruling of the learned recorder in the court below, who overruled the challenge for cause.
The evidence in the case .abundantly presented all the elements necessary to constitute the crime with which the appellant was charged, and the accuser was sufficiently corroborated within the legal rules applicable to such an offense. It is not deemed necessary to go into particulars upon the subject, which is not an agreeable one to elaborate. It is considered enough to say that a careful examination of the testimony in the case demonstrates the existence of all the facts necessary to establish the offense alleged.
The charge of the learned recorder presented for the consideration of the jury all the salient features of the prosecution and defense. The rules by which they were to be governed in their deliberation and which should control them in the ren[36]*36dition of their verdict, whether of guilty or not guilty, were explicitly stated, and nothing was omitted to make a full exposition of the legal principles involved in the investigation.
The requests to charge were refused by the learned recorder qualifiedly, i. e., by stating that they were declined, except as he had on the subject to which they related charged the jury. An examination of the whole charge shows that the elements embraced in these various requests were properly and duly expressed to the jury in as favorable light as the appellant could claim
The evidence established violence by the accused, fear and apprehension on the part of the accuser, as contemplated by section 278 of the Penal Code, and actual penetration without the consent of the accuser. Whatever may have been'the rule in regard to penetration in early times in England, since the passage of the statute of 9 George á, chapter 81, section 18, it has been the law of that country that a penetration, however slight, was complete inlaw. Rex v. Russen, 1 East P. C. 438; Rex v. Jennings, 4 C. & P. 249; Reg. v. Allen, 9 Id. 31; Reg. v. Hughes, Id. 752; Reg. v. Stanton, 1 C. & K. 415.
In the last mentioned case the testimony was somewhat akin to that given by the accuser in this case. There the prosecutrix said, “ I felt the parts of the defendant under mine just a littlewhich was held to be sufficient.
In this country proof of the slightest penetration has been regarded as sufficient See Hale's Pleas of the Crown, p. 628 and note; State v. Hargrave, 65 N. C. 466; Waller v. State, 40 Ala. 352; State v. Le Blanc, 3 Brev. (S. C.) 339: Guy's Principles of Forensic Medicine, Eng. ed. 1881, 60; Taylor on Medical Jurisprudence, 7th Am. ed. 701; Prof. Ogston’s Lectures upon Medical Jurisprudence, 90; Beck's Medical Jurisprudence, 229 to 233.
The.language of our statute is in accord with the rule proclaimed by these authorities, which by section 280 of the Penal Code is as follows: “Any sexual penetration, however slight, is sufficient to complete the crime.”
These views dispose of all the questions submitted upon this [37]*37appeal for our consideration, except one, namely, that the verdict is against the weight of the evidence.
The record shows that the prosecutrix was in the enjoyment of a festivity when introduced to the appellant, who induced her by invitation, though she went reluctantly, to leave the company of which she was one, and go to another room, descending a flight of stairs to accomplish that purpose; that appellant sent for drinks, and refusing to let her go directed the lights to be turned down, the door closed and locked, sought embraces from the prosecutrix, and then by force still refusing to let her go, placed her in a position where he could effect his purpose, threatening, with pistol presented, to do her bodily injury if she resisted or made any outcry; and further, that when her absence long continued, was discovered by her friends and he heard of the tumult it had occasioned, he departed suddenly by way of the nearest door leading to the street, leaving the prosecutrix, who rejoined her friends and made an exclamation indicative of what had occurred. In many of these details she is corroborated and sustained by the evidence, and as to the act of penetration, by her physical condition disclosed upon an examination by the physician called to testify upon the subject, a condition indicating violence, but showing continued virginity.
The statement of the appellant was an absolute and unqualified denial of aúy violence or attempted violence, and his explanation of asking the prosecutrix to go with him into another room was, that he desired to drink with her, and did not want to expose himself to such criticisms as might be pronounced upon him if he were seen doing that act. His examination was very unsatisfactory in its details, and failed to impress the jury in his fa.vor. We are not insensible to the fact that an accusation, such as made' against the appellant, is easily manufactured, and shoxdd be critically investigated, and we have examined the evidence in view of these elements. The offense is one well-calculated to excite great public indignation and great clamor; but the rules relating to the trial of such an offense are so guarded that the accused is protected from unjust prejudices. It would, indeed, be a disgrace to our laws if he were not fully and thoroughly secured from their influences, no mat[38]*38ter from what source they emanate or by what means created— a circumstance kept in view on the consideration of this appeal It may be here said, as germain to this subject, that while the denunciation of crime should be extolled, the continued reference to any one by particular mention and censure should not be indulged in prior to the trial of the accused.
He should have every opportunity to defend himself, no matter how convincing the developed facts may be, and his guilt should not be forestalled or his defense weakened by a spirit of condemnation incited by public criticism.
The record, however, considered in all its different phases, leaves no other impression upon the mind than that of the guilt of the appellant. The prosecutrix is young, but, in so far as the record discloses, virtuous and respectable though in humble life. Nothing, indeed, against her—except that she went to such a place of amusement—has been found, but, while there, she was conducting herself properly and indulging only in an innocent pastime. ■ It would be very extraordinary, indeed, for this court, under such circumstances, to entertain for one moment the project of granting a new trial upon the ground that the verdict was against the weight of evidence.
It may be said, with very great propriety, that it rarely happens that a prosecution for rape is so abundantly sustained in all its essential features as this was. Perhaps a particular scrutiny of every fact and circumstance of the case might disclose some that were inconsistent with the appellant's guilt, but this is always a peculiarity, if such it may be called, of prosecutions not only for this crime, but for crimes generally. The great and overwhelming mass of evidence, however, is in favor of- the truth of the accusation made against the appellant.
Assuming that the verdict of the jury is correct, which we see no reason to question, the appellant had been guilty of an atrocious crime, one which he could the more readily accomplish by exciting fear and apprehension than a person not connected with the police, and, therefore, his punishment on conviction was justly severe. Clothed with authority and invested with high obligations and responsibilities, it was his duty to protect the prosecutrix and not to seek her destruction It [39]*39was a duty he owed to her, to the community, to the department to which he belonged, and to himself. He abandoned all, selecting for his victim a youthful maiden of innocence and respectability, who, although in the humbler walks of life, was entitled to all the protection that could be furnished to any person in any other sphere.
The verdict was in all respects just, the judgment that followed it was proper and exemplary, and this court will not interfere with it in any way.
Daniels, J., concurs, Davis, P. J., taking no part in the decision.
As to disqualification of jurors by opinion or impression, see People v. Welch, 1 N. Y. Crim. Rep. 486; Peop e v. Tyrell, 3 Id. 143; People a Willett, Id. 334; People v. Carpenter, infra, p. 89.