People v. Schertz

181 A.D. 889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1917
• Status: Published

Opinion

By introducing evidence that the prosecutrix gave birth to a full term child on January 7, 1917, the People opened to the defendant the right to give any evidence that bore against such corroboration as this proof of birth tended to give to the alleged intercourse with appellant. (People v. Flaherty, 79 Hun, 48; 145 N. Y. 597.) In that view it was competent to show that the lewd verses which proclaimed the loose conduct and her resulting pregnancy were written by the prosecutrix and taken from her by her teacher at a much earlier date than that charged in the indictment. All the testimony brought the prosecuting witness within the long-settled rule: “ If she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned.” (4 Black Com. 213.) The judgment of conviction of the County Court of Bangs county is reversed for errors both of law and fact, and a new trial ordered. Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ., concurred.