#### The People of the State of New York, Appl’ts, *v.*O’Sullivan, Resp’t.

*(Court of Appeals,*

*Filed March*1, 1887.)

1. Criminal law — Evidence — Upon a trial por a crime evidence THAT THE DEFENDANT WAS G-UILTY OF OTHER CRIMES IS NOT ADMISSIBLE — Attemp TO COMMIT SAME CRIME, WHEN ADMISSIBLE.

It is a general rule of law that upon the trial of a prisoner for one offense, it is improper to prove that he has been guilty of other offenses, but where a prisoner is tried for a particular crime, it is always competent to show upon the question of his guilt that he had made an attempt at some prior time, not too distant, to commit the same offense.

2. Rape — Disclosure of the fact by the female if made at first opportunity IS ADMISSIBLE IN EVIDENCE.

The evidence of a witness as a rule cannot be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath. There is an exception to this in the case of rape, from the natural presumption that a virtuous female would at *703tlie first suitable opportunity disclose the fact of the outrage and because she would be so far discredited if she did not make the disclosure, it may be received in evidence to confirm her testimony where she is a witness But when the disclosure is not made as soon as a suitable opportunity is furnished, the reason for receiving it in evidence does not exist, and the principle justifying its reception does not apply.

3. Same — When too distant fkom date op offense.

*Held,*that the offense charged having been committed con May 6, 1884, a disclosure made on March 28, 1885, was not admissible in evidence, no circumstances appearing to justify the delay.

Appeal on the part of the people from a judgment, of general term, fourth department, reversing a judgment of the court of oyer and terminer of Onondaga county, and ordering a new trial upon conviction of defendant, under an indictment for rape. The facts are sufficiently stated in the opinion.

*C. H*Lewis, for appl’ts; *John C.*Hunt, for resp’t.

Earl, J.

The defendant was convicted in the Onondago oyer and terminer of the crime of rape committed upon Abbie O’Connor, on the sixth day of May, 1884. He was a Roman Catholic priest in charge of a church at Camillus, in Onondaga county. The complaint was a domestic, working for him in the parsonage, which adjoined the church. She testified that she was at the time of the alleged crime about 17 years old; but there was other evidence, apparently more reliable, that she was about 20. Before she went to live with him she resided with her foster parents, who brought her up from infancy, and she and they were members and regular attendants at his church. She went into his service on the twenty-fifth day of January, 1884, and. from that time forward his family consisted of himself, Mrs. Doehner, his housekeeper, Timothy O’Sullivan, his man-servant, and the complainant. She testified that the defendant entered her bed-room in the night-time, and there outraged her. At that time the housekeeper was in New York, and she was alone in the house with him and the man-servant. No criminal complaint was made against him until November, 1885, and he was not indicted until January, 1886.

Upon the trial, after the complainant had testified to the rape, she was permitted, against the defendant’s objection, to testify that four days previously he had made an attempt to ravish her, that she resisted him, and that he failed. For the reception of this evidence the court at general term, as appears by the opinion there pronounced and concurred in by a majority of the judges, reversed the conviction, holding that it was incompetent upon the trial of the defendant for the crime alleged to prove any'other crime committed or attempted by him. We do not agree with the learned general term, in the view thus taken of this evidence. It is quite true that it is a general rule of law that upon the trial of a prisoner for one offense it is improper to *704prove that be bas been guilty of other offenses; as where a prisoner is put upon trial for larceny, or burglary, or murder, it is incompetent to prove that be bas been guilty of other lar-cencies, or burglaries, or murders, or other crimes. In this case it would have been incompetent to prove that the defendant had committed or attempted to commit a rape upon any other woman. But where a prisoner is tried for a particular crime, it is always competent to show upon the question of his guilt that he had made an attempt at some prior time, not too distant, to commit the same offense. Upon the trial of a prisoner for murder, it is competent to show that he had made previous threats or attempts to kill his victim. *People*v. Jones, 99 N. Y., 667, Upon the same principle, it must always be competent to show that one charged with rape had previously declared his intention to commit the offense, or had previously made an unsuccessful attempt to do so. In this case, if witnesses, other than the complainant, could have been called who witnessed the unsuccessful attempt of the defendant to ravish the complainant four days before the crime was in fact accomplished, no one would have questioned the competency of their *evidence;*and the evidence is not rendered incompetent because it comes from the complainant herself. It is not as valuable or trustworthy or • important as if it had come from other witnesses. It probably did not have a very important bearing with the jury, because, unless they believed her evidence as to the principal offence, they would not believe her evidence as to the prior attempt. But it may have had some tendency to corroborate her story as to the principal offense, and thus may have had some weight with the jury. But whether it was important or not, there is no rule which condemns it, and there is abundant authority to justify its reception. Whart. Crim. Ev. 35, 46, 49; *State*v. Knapp, 45 N. H., 156; *Strang*v. People, 24 Mich. 6; *Sharp*v. State, 15 Tex. App., 171; *Reg.*v. Rearden, 4 Fost. & F., 76; *Reg.*v. Jones, 112. B. Div. 118; *Reg*v. Chambers, 3 Cox, Crim. Cas., *92; Williams*v. *State,*8 Humph., 585; *State*v. *Walters,*45 Iowa, 389; *Com.*v. *Nichols,*114 Mass., 285; *Com.*v. *Lahey,*14 Gray, 91; *Com.*v. *Merriam,*14 Pick., 518; *State*v. *Marvin,*35 N. H., *22; State*v. *Wallace,*9 N. H., 515; *State*v. *Way,*5 Neb., 287; *Lawson*v. *State,*20 Ala., 65. We do not agree, therefore, that the judgment should have been reversed on account of the reception of the evidence alluded to. But there is, at least, one other error disclosed by the record, for which, we think, the conviction ought to have been reversed.

As before stated, the alleged rape was committed in defendant’s house on the sixth day of May, 1884. The complainant remained in his service from that time until the twentieth day of August following, without in any manner, by speech, action, or appearance, disclosing or intimating to any one that she had *705suffered this great wrong. During that time she visited her foster parents, whose place of residence was not far distant from Camillus, and saw them nearly every Sunday at church, and at defendant’s house, having full and free communication with them in defendant’s absence. When she left the service of the defendant, it was apparently not on account of the crime that had been committed upon her, but because he whipped her for some trifling offense. Then she went home to live with her foster-parents, and remained there until the tenth day of September, and then she went to Syracuse to wort in a situation procured for her at her request by the defendant, and while living there, on the twenty-eighth day of March, she disclosed to Father Moriarty, a Roman Catholic priest, at confessional, that the assault had been committed upon her; and that was the first disclosure of the crime made by her to any person.

During all the time, from the sixth of May to the twenty-eighth of March, nearly eleven months, there was not a day when she could not have made a disclosure to some one. She was at perfect liberty to leave the defendant’s house at any time, and she remained there of her own free will and consent. The only excuse put forth for the great delay in making the disclosure is based upon the following facts; She testified that after the assault upon her she went voluntarily and without any solicitation of the defendant to his confessional and confessed to him while living with him on three different occasions; and that on each occasion he asked her whether she had told any thing about the assault upon her, and she replied “ no, father; ” and he said “ God bless you, my child.” She also testified that while she lived with him he told her it was a sin to “ tell on a priest,” and that if she ever “ told on a priest ” she would go to hell or purgatory. She further testified that she did not go to confessional again until the 28th day of March, 1885, when she made the disclosure to Father Moriarty, and that she told him about it the first time she went to his confessional.

It may well be that the fact that this disclosure was made at the confessional, under the sanction of religion, gave it additional weight with the jury. But we are of opinion that such disclosure, made nearly eleven months after the commission of the alleged crime, was too remote to be received in evidence. There was nothing whatever to justify the delay.

It is a general rule that the evidence of a witness can never be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath. Such statements, like all hearsay evidence, are excluded as unsatisfactory and incompetent. But there is an exception to the rule in the case of rape. The outrage in such a case upon a virtuous female is so great that there is a natural presumption that at the first suitable opportunity she *706would make disclosure of it; and she would be so far discredited if she did not make the disclosure for the purpose of confirming her evidence where she is a witness, such disclosure may be received. But where the disclosure is not recent, as soon as suitable opportunity is furnished, the reason for receiving it in evidence does not exist, and the principle justifying its reception does not apply. In 1 Hale, Pleas of the Crown, 632, it is said that “ the complainant must make fresh discovery and pursuit of the offense and offender, otherwise it carries a presumption that her suit is but malicious and feigned.”

In 1 East, Pleas of the Crown, 445, it is said that the evidence of the complainant is confirmed if she presently discovered the offense and made pursuit for the offender,” and that “ her evidence is discredited if she concealed the injury for any considerable time after she had opportunity to complain.” And the same language is substantially embodied in 4 Blackstone Commentaries, 214. In *Baccio*v. People, 41 N. Y. 265, the defendant was indicted for rape, and upon the trial the prosecution was permitted to give evidence that the complainant disclosed the crime to her mother twenty-four days after its commission ; and the conviction in that case was reversed on the ground that the mother of the complainant was permitted to testify in detail on her direct examination to the statements made to her by the complainant of the time and manner of the offense. Judge Woodruff, writing the opinion, said: “ I was at first inclined to say that evidence of any complaint made so long after the alleged injury, and especially when forced from the daughter by the mother after her daughter had once declared that her injury was due to a fall, should not have been received at all from any person. The complaint was certainly not made recently after the alleged outrage. But in a case in which the fact of complaint is admissible it is perhaps competent to explain the want of such early complaint by facts which show that it was impracticable, or that it was prevented by circumstances consistent with the natural impulse to complain thereof, so far at least as to destroy the presumption of falsehood derivable from concealment on the part of the female.” In the course of his opinion the same learned judge said, that the rule admitting such declarations in cases of rape is an exception to the general rule excluding declarations.made out of court by a person who has been or might be examined as a witness, and is properly confined within narrow limits, and he suggested that the reason for the admission of such declarations is, “ that it is so natural as to be almost inevitable, that a female upon whom the crime has been committed will make immediate complaint thereof to her mother, or other confidential friend; and inasmuch as her failure to do so would be so strong evidence that her affirmation on the subject when examined as a witness was false, that the *707prosecution may anticipate sucb a claim by affirmative proof that complaint was made.” In *Higgins*v. People, 58 N. Y. 337, the defendant was indicted for rape. In that case it appeared that the prosecutrix arrived in New York an entire stranger, and, having lost her baggage, she was inveigled into a basement on a pretense of finding it, where she was outraged. Upon coming out into the street she met a woman who asked her what was the matter; also a policeman who took her to the station-house. To neither of these did she state the real offense ; but it appeared that as soon after arriving at the station-house as her excitement would admit, she stated the fact to the police captain. Upon these facts defendant’s counsel requested the court to charge that, “If the jury believe the prosecuting witness did not make prompt disclosure of the alleged wrong, it is a circumstance against her, casting a great discredit on her testimony and tends strongly to disprove the truth of the accusation.” This the court refused to charge, and it was held that conceding the proposition to be entirely accurate, it was an abstract one, as there was no ground for saying that the disclosure was not sufficiently prompt, and it was not error, therefore, to refuse so to charge. Chtxrch, Ch. J., writing the opinion, said: “ The proposition which the court was requested to charge was substantially correct, although it is quite general and somewhat vague. Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can be no iron rule on the subject. The law expects and requires that it should be prompt; but there is, and can be, no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. :Such is the natural impulse of an honest female.”

In Connecticut a more liberal rule as to disclosure made by a prosecutrix has been adopted than prevails in this state. *State*v. *De Wolf,*8 Conn. 93; *State*v. Byrne, 47 Conn. 466. There it may be proved, not only that she made disclosures of the crime, but the details of the crime as she disclosed them may also be proved. In the two cases cited, the disclosures were made after a much longer time than in any other case which has come to our attention. In the first case the complainant was deaf and dumb, and the disclosure was made more than a year after the commission of the crime, but there she was prevented from making the disclosure by the threats and influence of the prisoner over her, and it was held that her mental and physical condition were such as to furnish her an excuse for not making *708an earlier disclosure. lu the other case the complainant did not make the disclosure until more than a year and a half after the commission of the crime. But she was only 12 years old, and. the defendant was her step-father, and she was living in his family, and he threatened to take her life if she told her mother or anybody else what had happened. Under such circumstance it was held to be for the jury in weighing her evidence to determine what effect should be given to her failure to make an earlier disclosure.

It will be seen from these authorities that the very reason upon which the rule is based for the reception of such evidence-requires that the disclosure should be recent, and made at the-first suitable opportunity. But there may be circumstances-which will excuse delay, as when the prosecutrix is under the physical control of the defendant; when she is among strangers and there is no one in whom she can confide; when she is induced to silence by threats, and is so far within the power or reach of the defendant that the threats may be executed. In such and other like cases delay may be excused, and the disclosure may be proved and all the facts submitted to the jury for them to determine what weight shall be given to the disclosure, and what effect the delay shall have. But here there was absolutely nothing to justify the great delay. There was no time after the commission of the offense when she could not-have left the defendant’s house. She was of mature age, and near her friends, and saw them frequently. She was in Syracuse, having access to priests months before she made the disclosure. It does not appear from her evidence that she delayed the disclosure from fear of the defendant or from any influence of superstition or from the apprehension of consequences to herself in this life or in the life to come.

We think the delay, under such circumstances, was so great- and so unjustifiable that, as a matter of law, the disclosure should have been excluded as evidence, and that it was, therefore, error to receive it. If this disclosure was competent, then no disclosure, however distant from the time of the offense, could be excluded; and all such disclosures would have to be received and submitted to the jurors for such damaging effect as they would allow them to have. A disclosure at such a distant time is of no more value in arcase of rape than it would be in a case of robbery or murder or any other crime. A disclosure in a case of rape has no legal value whatever unless it is the natural result of the horror and sense of wrong which would prompt every virtuous female to make outcry at the first suitable-opportunity.

Our attention has also been called to error in the charge of the learned trial judge, We have carefully considered the-charge, and are constrained to believe that it was in part erro*709neons. But as we reached, tlie conclusion that for the error to which we have given particular attention, the conviction was properly reversed, it is unnecessary to further notice the charge, as the error complained of is not likely to be repeated upon the new trial, if one should be had.

We, therefore, conclude that the judgment of the general •term should be affirmed.

All concur.