Clarke, J.:
The complainant, Mary Kapalay, nineteen years of age, was bom at Oraway, in Austria, had little knowledge of English and was examined through an interpreter. She lived with her [272]*272parents on a farm and had never worked for any one else until she came to America. iShe had never seen a negro until she came to this country. 'She had been employed by Mrs. Safer in household work for five months. The family occupied a seven-room apartment located on the first floor above'the ground floor in an apartment house. The defendant was a colored elevator boy in the house, whose hours of employment were from nine A. M. until seven P. M. On December 5, 1911, Mrs. Safer had gone out, leaving the complainant alone. She had been gone about an' hour when, about three o’clock in the afternoon, the defendant “ rang ” the bell. I opened the door and he came in and he handed me a letter. * * * He said to me, ‘ Give me a glass of whiskey.’ * * * I told him ‘ I will not give you. I am afraid.’ * * * He said £ give it to me.’ * * * I went to the kitchen and I gave it to him. * * * He was in the kitchen. * * * After he drank the whiskey he got hold of my arms and dragged me into the bedroom. * * * He put a pillow on my face; he took my legs apart, and he done me something is terrible, that I cannot express before the jury. * * * He uncovered my dress (giving other details). * * * It was in my bed. * * * I was crying and hollering, begging him for mercy. Q. How long was he on the bed with you ? A. About fifteen or twenty minutes. * * * He ran away and I remained at home and commenced to cry.” Hpon cross-examination she testified: ££ Q. As soon as you started to cry out, the defendant put the pillow over your head? A. Yes, sir. * * ’* At the time he drank the whiskey he got hold of me and dragged me into the bedroom. * * * He laid me down (on the bed). * * * When he dragged me in, my head fell down. Then he took the pillow and covered my face with it. * * * He just got hold of it and put it on my face. * * * I was struggling there at the time, and I removed the pillow from my face. Q. How long was the pillow over your face? A. I don’t know; * * * I was terribly frightened, and I [273]*273don’t know whether it happened at the time he was on top of me or afterwards. * * * Q. How long were you in the bedroom? A. Between fifteen and twenty minutes. Q. Was the pillow on your head all this time ? A. Yes, sir. * * * I know it was on my mouth * * * about fifteen or twenty (minutes) ; I don’t know. * * * Q. (By the Court) : Did you say anything to Andrew in the bed, or did he say anything to you? A. I was crying and hollering and begging for help. Q. What did you say to him, if anything ? A. I told him to go to hell. * * * Q. (By the Court) : After Andrew left your room did you ’phone for him to come back ? A. When he left me in the room I was crying, and I said, ‘ You open the elevator and I will go down and wait until my mistress comes and I will tell her what happened to me.’ ”
Her mistress testified that she returned at about four o’clock that day, and that about five minutes afterwards the complainant told her about the assault by the defendant upon her.
A physician testified that he examined the complainant on December 10th; that he found black and blue marks on the inner parts of the skin of both thighs, deep down; that they looked like finger marks; there were various spots all over; it was not one big, large discoloration; that these many black and blue marks of discoloration on both thighs indicated violence. He further testified in detail to a condition of ruptured and freshly-torn hymen, which indicated recent sexual intercourse.
The defendant admitted on the stand that he had sexual intercourse with complainant at the time and place testified to. He admitted it to the officer who arrested him, who testified: "í< I asked him then if she had not resisted him in any way, or put up any kick, and he said, ‘ Well, a little, not much.’ ” Another officer testified that the defendant said to him, * * * she kicked, and held her two hands in this position (indicating), ■* * *»
[274]*274The defendant testified that he had a conversation with complainant’s mistress in complainant’s presence. “ Ql What did she say to you, and what did you say to her ? A. She asked me what did I do to the girl. I told her I hadn’t done anything. She said, ‘ the girl said you dragged her in the bed room and . put a pillow over her face,’ and I told her I didn’t do it. Q. In fact, you told Mrs. Saffer you had not had anything to do with the girl, didn’t you ? A. I did.”
The defense was an admission of the intercourse, a denial of the force, and claim of consent and acquiescence.
A clear question of fact was presented. It is not contended that the court would have been authorized to have directed a verdict of acquittal. There are no errors pointed out in the opinion of Mr. Justice McLaughlin requiring a reversal. This court is to reverse because there was evidence from which it might be inferred that there had been consent or failure to exercise the degree of resistance required by law. There was such evidence if the defendant’s story should be taken as true in its entirety. But as I read the case, there was sufficient evidence of force, lack of consent, resistance and prompt complaint to sustain the verdict. That being so, the decision upon disputed facts was for the jury, and not for this court, unless we can see that the judgment was clearly against the evidence. The defendant had a fair trial, so we cannot say that justice requires a new trial. ¡Nor are we authorized to reverse because of the severity of the sentence.
This court has no power to interfere with the judgment merely because it may entertain a reasonable doubt upon the evidence. The determination of that question is within the province of the jury. In People v. Taylor (138 N. Y. 398, 406), the court said: “ If, in the judgment of this court, there was a rational doubt of the guilt of the defendant, it would not. be a sufficient ground for reversal. Under our system of criminal jurisprudence it becomes the exclusive province of the jury [275]*275to determine whether the evidence pointing to the guilt of the accused is so lacking in convincing force as to leave an intelligent and discriminating mind in doubt as to the truth of the charge contained in the indictment. When the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen from a contemplation of the evidence, the prisoner has had the full benefit of the rule of law which protects him from punishment, unless his crime is established beyond a reasonable doubt, and the question is not open for review in this court, unless the ease is so weak that the verdict should be set aside because against the weight of evidence, or for other sufficient cause.”
In People v. Shea (147 N. Y. 78, 98, 10 N. Y. Crim. 1), Judge Peckham said: “ We are now asked to set that verdict aside upon the merits and to grant a new trial because justice requires it. We cannot do it. We are entirely satisfied that the jury have arrived at a just conclusion, although if 'we had a rational doubt on that subject, there being at the least a conflict in the evidence from which different inferences might be drawn, we should not feel at liberty to reverse the finding of the jury where such finding is not clearly against the weight of evidence and does not appear to have been influenced by any improper considerations. (People v. Taylor, 138 N. Y. 398.)”
In People v.
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Clarke, J.:
The complainant, Mary Kapalay, nineteen years of age, was bom at Oraway, in Austria, had little knowledge of English and was examined through an interpreter. She lived with her [272]*272parents on a farm and had never worked for any one else until she came to America. iShe had never seen a negro until she came to this country. 'She had been employed by Mrs. Safer in household work for five months. The family occupied a seven-room apartment located on the first floor above'the ground floor in an apartment house. The defendant was a colored elevator boy in the house, whose hours of employment were from nine A. M. until seven P. M. On December 5, 1911, Mrs. Safer had gone out, leaving the complainant alone. She had been gone about an' hour when, about three o’clock in the afternoon, the defendant “ rang ” the bell. I opened the door and he came in and he handed me a letter. * * * He said to me, ‘ Give me a glass of whiskey.’ * * * I told him ‘ I will not give you. I am afraid.’ * * * He said £ give it to me.’ * * * I went to the kitchen and I gave it to him. * * * He was in the kitchen. * * * After he drank the whiskey he got hold of my arms and dragged me into the bedroom. * * * He put a pillow on my face; he took my legs apart, and he done me something is terrible, that I cannot express before the jury. * * * He uncovered my dress (giving other details). * * * It was in my bed. * * * I was crying and hollering, begging him for mercy. Q. How long was he on the bed with you ? A. About fifteen or twenty minutes. * * * He ran away and I remained at home and commenced to cry.” Hpon cross-examination she testified: ££ Q. As soon as you started to cry out, the defendant put the pillow over your head? A. Yes, sir. * * ’* At the time he drank the whiskey he got hold of me and dragged me into the bedroom. * * * He laid me down (on the bed). * * * When he dragged me in, my head fell down. Then he took the pillow and covered my face with it. * * * He just got hold of it and put it on my face. * * * I was struggling there at the time, and I removed the pillow from my face. Q. How long was the pillow over your face? A. I don’t know; * * * I was terribly frightened, and I [273]*273don’t know whether it happened at the time he was on top of me or afterwards. * * * Q. How long were you in the bedroom? A. Between fifteen and twenty minutes. Q. Was the pillow on your head all this time ? A. Yes, sir. * * * I know it was on my mouth * * * about fifteen or twenty (minutes) ; I don’t know. * * * Q. (By the Court) : Did you say anything to Andrew in the bed, or did he say anything to you? A. I was crying and hollering and begging for help. Q. What did you say to him, if anything ? A. I told him to go to hell. * * * Q. (By the Court) : After Andrew left your room did you ’phone for him to come back ? A. When he left me in the room I was crying, and I said, ‘ You open the elevator and I will go down and wait until my mistress comes and I will tell her what happened to me.’ ”
Her mistress testified that she returned at about four o’clock that day, and that about five minutes afterwards the complainant told her about the assault by the defendant upon her.
A physician testified that he examined the complainant on December 10th; that he found black and blue marks on the inner parts of the skin of both thighs, deep down; that they looked like finger marks; there were various spots all over; it was not one big, large discoloration; that these many black and blue marks of discoloration on both thighs indicated violence. He further testified in detail to a condition of ruptured and freshly-torn hymen, which indicated recent sexual intercourse.
The defendant admitted on the stand that he had sexual intercourse with complainant at the time and place testified to. He admitted it to the officer who arrested him, who testified: "í< I asked him then if she had not resisted him in any way, or put up any kick, and he said, ‘ Well, a little, not much.’ ” Another officer testified that the defendant said to him, * * * she kicked, and held her two hands in this position (indicating), ■* * *»
[274]*274The defendant testified that he had a conversation with complainant’s mistress in complainant’s presence. “ Ql What did she say to you, and what did you say to her ? A. She asked me what did I do to the girl. I told her I hadn’t done anything. She said, ‘ the girl said you dragged her in the bed room and . put a pillow over her face,’ and I told her I didn’t do it. Q. In fact, you told Mrs. Saffer you had not had anything to do with the girl, didn’t you ? A. I did.”
The defense was an admission of the intercourse, a denial of the force, and claim of consent and acquiescence.
A clear question of fact was presented. It is not contended that the court would have been authorized to have directed a verdict of acquittal. There are no errors pointed out in the opinion of Mr. Justice McLaughlin requiring a reversal. This court is to reverse because there was evidence from which it might be inferred that there had been consent or failure to exercise the degree of resistance required by law. There was such evidence if the defendant’s story should be taken as true in its entirety. But as I read the case, there was sufficient evidence of force, lack of consent, resistance and prompt complaint to sustain the verdict. That being so, the decision upon disputed facts was for the jury, and not for this court, unless we can see that the judgment was clearly against the evidence. The defendant had a fair trial, so we cannot say that justice requires a new trial. ¡Nor are we authorized to reverse because of the severity of the sentence.
This court has no power to interfere with the judgment merely because it may entertain a reasonable doubt upon the evidence. The determination of that question is within the province of the jury. In People v. Taylor (138 N. Y. 398, 406), the court said: “ If, in the judgment of this court, there was a rational doubt of the guilt of the defendant, it would not. be a sufficient ground for reversal. Under our system of criminal jurisprudence it becomes the exclusive province of the jury [275]*275to determine whether the evidence pointing to the guilt of the accused is so lacking in convincing force as to leave an intelligent and discriminating mind in doubt as to the truth of the charge contained in the indictment. When the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen from a contemplation of the evidence, the prisoner has had the full benefit of the rule of law which protects him from punishment, unless his crime is established beyond a reasonable doubt, and the question is not open for review in this court, unless the ease is so weak that the verdict should be set aside because against the weight of evidence, or for other sufficient cause.”
In People v. Shea (147 N. Y. 78, 98, 10 N. Y. Crim. 1), Judge Peckham said: “ We are now asked to set that verdict aside upon the merits and to grant a new trial because justice requires it. We cannot do it. We are entirely satisfied that the jury have arrived at a just conclusion, although if 'we had a rational doubt on that subject, there being at the least a conflict in the evidence from which different inferences might be drawn, we should not feel at liberty to reverse the finding of the jury where such finding is not clearly against the weight of evidence and does not appear to have been influenced by any improper considerations. (People v. Taylor, 138 N. Y. 398.)”
In People v. Egnor (175 N. Y. 419, 425, 17 N. Y. Crim. 338), Judge Gray said: “ The issue was for them [the jury] to decide and this court should not invade their province and interfere with their decision, because of doubts entertained upon the evidence.”
In People v. Rodawald (177 N. Y. 408, 420), Judge Yann said: “If a reasonable doubt existed as to the defendant’s guilt, or as to the degree of his guilt, it was for the jury to find it. Even if we should reach a different conclusion we must accept their verdict as rendered, for the Constitution and the law makes their judgment supreme under such circumstances. [276]*276(People v. Kelly, 113 N. Y. 647; People v. Hoch, 150 N. Y. 291.)”
The trial court charged: “ It is only proper for me to remind the jury that the Court of Appeals has often called attention in cases of this kind to the necessity of admonishing the jury to be concerned only with the law and the facts in the case, to steel their minds against any prejudice against a defendant. * * * It is of great importance that justice be done, but justice should be administered in such a way as not to reflect any discredit on the State; and all elements of passion or prejudice should be so far eliminated that there can be no question of the wisdom of your judgment and the propriety of it. * * * How as to the question of consent, that is a question of fact for the jury to determine, whether or not she consented. If she consented to this act of intercourse there was no crime.” He proceeded to read from People v. Clemons (3 N. Y. Cr. Rep. 565, 568); People v. Bowles (Id. 447); People v. Dohring (59 N. Y. 386), and People v. Connor (126 id. 278), thus charging fully and completely as to the duty of resistance and the extent of such resistance required of the complainant.
There was no reversible error committed upon this trial. It was conducted fairly. The defendant had the benefit of all the rules of law instituted for his protection. Upon conflicting evidence, the jury rejected his story, as was their right, and resolved that he was guilty of the crime charged beyond a reasonable doubt. This court is not charged with the duty of resolving that question. The verdict, in my opinion, was not against the weight of evidence, and justice does not require a new trial.
The judgment should be affirmed.
Ingraham, P. J., and Laughlin, J., concurred; McLaughlin and Miller, JJ., dissented.