In People v. Ragone, 54 App. Div. 498, 67 N.Y. S. 23, it was held that the jury might find corroboration of the female's testimony of her age in her appearance; but there was a reversal for error in refusing to charge that the jury had a right to consider not only the change in her appearance but the absence of documentary evidence of age in possession of a witness.Summary of this case from State v. Ellis
November Term, 1900.
John Palmieri, for the appellant.
Charles E. Le Barbier, for the respondent.
The defendant was convicted of the crime of abduction as defined in subdivision 1 of section 282 of the Penal Code. The evidence to establish his guilt was ample and satisfactory, except as to the fact that the age of the woman abducted was under eighteen years, which is an essential element of the crime. The only parol evidence given on that point was that of the woman herself. That evidence, taken in connection with her statements upon cross-examination, was not by any means satisfactory, and the jury would have been warranted in refusing to credit it if they had seen fit to do so. Section 283 of the Penal Code provides that no conviction for abduction can be had upon the testimony of the female abducted unsupported by other evidence. The only thing presented to the jury to support the testimony of the woman herself was her appearance upon the stand, which they were at liberty to consider in determining whether she was under the age of consent. (Penal Code, § 19; People v. Justices of Special Sessions, 10 Hun, 224.)
The appearance of the woman might have furnished sufficient support to her evidence to satisfy the requirements of the Code, and the jury were so instructed upon the trial, but it appeared that the certificate of her birth made by the authorities in Italy had been brought to this country and was in the keeping of a woman with whom the complainant had lived after the death of her mother. That woman was a witness upon the trial, but she was asked nothing as to the age of the complainant, nor was the certificate of birth produced, nor were any questions asked her about it. It appeared also that at the time of the trial the complainant was not dressed in her usual manner, and that her hair was done up on the top of her head. The court was asked to charge the jury substantially that, in considering the age of the girl, the jury had the right not only to consider her appearance on the stand and the manner in which she was dressed by the society, but also the absence of the documents of age which had been testified to by her as being in the possession of the woman who had taken the stand in corroboration of her testimony. This the court refused to charge, and this refusal, we think, was error.
While the jury were bound to consider her appearance on the stand upon the question of age, and might refer to it for the purpose of supporting her testimony, yet in doing so they were also bound to take into consideration the fact which was apparent to them that as to her hair and clothing her appearance was not usual, but some change had been made in it. So they might give some weight to the fact that the certificate of birth, in which the precise time of her birth was stated, might have been presented to them by the district attorney and that he had not done so. Where the matter of the age was so important and evidence bearing upon it might have been presented to the jury, the defendant was entitled to have all the testimony, not only that against him but that in his favor, presented to the jury and considered by them before he was convicted. Because of this failure to permit the jury to take this matter into consideration, we are obliged to reverse this judgment and order a new trial.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred.
Judgment reversed and new trial ordered.