People v. Goettel

252 A.D. 783, 299 N.Y.S. 85, 1937 N.Y. App. Div. LEXIS 6281

Opinion

Judgment of the Court of Special Sessions of the City of New York, Borough of Queens, convicting defendant of the crime of assault in the third degree reversed on the law, information dismissed, and the amount of the fine directed to be refunded. We are of opinion that the guilt of the defendant was not established beyond a reasonable doubt. Further, we are of opinion that, assuming the testimony of the complaining witness to be true, the People failed to prove the crime of assault in that there is no adequate proof that the complainant resisted or repulsed the advances made by the defendant, and, therefore, it must be assumed that she assented thereto. This rule of law does not apply to persons of immature age. (People v. Colletta, 65 App. Div. 570; affd., 169 N. Y. 609; People v. Gibson, 232 id. 458.) Hagarty, Johnston, Taylor and Close, JJ., concur; Davis, J., dissents and votes to affirm.