People v. Kline

Appellate Division of the Supreme Court of New York

People v. Kline

152 A.D. 438, 28 N.Y. Crim. 156, 137 N.Y.S. 296, 1912 N.Y. App. Div. LEXIS 8554

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 10, 1912

StatusPublished

Cited by4 cases

This text of 152 A.D. 438 (People v. Kline) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kline, 152 A.D. 438, 28 N.Y. Crim. 156, 137 N.Y.S. 296, 1912 N.Y. App. Div. LEXIS 8554 (N.Y. Ct. App. 1912).

Pincite

Opinions

Woodward, J.:

The judgment of conviction in this case must be reversed. It is not to he distinguished in any essential particular from the [439]*439case of People v. Seaman (152 App. Div. 495), 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), 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 [440]*440a 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 (Penal Law, § 2013) says there shall.be no conviction upon the unsupported testimony of the complaining female, and there is no such supporting evidence in this case. In the Tench case the girl was under the age of consent; there was an attempt to produce evidence tending to show penetration, but the court analyzing the testimony found that it did not go to prove the necessary fact, and reversed the conviction.

As in the Seaman case, the judgment should be reversed. The evidence is certainly of a very questionable character, even in the matters in which it meets the requirements of the law, and upon the essential element of the crime which I have pointed out, the case is without corroboration-.

Jerks, P. J., and Rich, J., concurred; Hirschberg, J., concurred in result; Burr, J., read for affirmance.

Free access — add to your briefcase to read the full text and ask questions with AI

Woodward, J.:

The judgment of conviction in this case must be reversed. It is not to he distinguished in any essential particular from the [439]*439case of People v. Seaman (152 App. Div. 495), 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), 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 [440]*440a 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 (Penal Law, § 2013) says there shall.be no conviction upon the unsupported testimony of the complaining female, and there is no such supporting evidence in this case. In the Tench case the girl was under the age of consent; there was an attempt to produce evidence tending to show penetration, but the court analyzing the testimony found that it did not go to prove the necessary fact, and reversed the conviction.

As in the Seaman case, the judgment should be reversed. The evidence is certainly of a very questionable character, even in the matters in which it meets the requirements of the law, and upon the essential element of the crime which I have pointed out, the case is without corroboration-.

Jerks, P. J., and Rich, J., concurred; Hirschberg, J., concurred in result; Burr, J., read for affirmance.

Cite This Page — Counsel Stack

Bluebook (online)

152 A.D. 438, 28 N.Y. Crim. 156, 137 N.Y.S. 296, 1912 N.Y. App. Div. LEXIS 8554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kline-nyappdiv-1912.

Opinions

Related

Cite This Page — Counsel Stack