(79 Hun, 48.)

#### PEOPLE v. FLAHERTY.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Rape—Indictment—Sufficiency.

Pen. Code, § 278, defines rape as “an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will or without her consent,” and provides that “a person perpetrating such an act or an act of sexual intercourse with a female not his wife (1) when the female is under the age of 16 years, * '= * or (3) when her resistance is forcibly overcome, * * * is punishable." *Held,*that an indictment is sufficient where it charges that defendant did “feloniously perpetrate an act of sexual intercourse with one M., not his wife, said M. being at said time a female under the age of 16 years, contrary to the statute,” etc., though it does not use the word “rape.”

2. Same—Corroborative Evidence—Contradiction.

On a trial for rape, prosecutrix testified to the fact of the rape, and that nó other person had had sexual intercourse with her. In order to corroborate her testimony, evidence was given that, in due time after the alleged intercourse, prosecutrix gave birth to a child. *Held,*that defendant was entitled to show, for the purpose of refuting the corroborative evidence, that prosecutrix had sexual intercourse with other persons about the time that the acts by defendant were alleged to have been committed.

Appeal from court of sessions, Livingston county.

Charles Flaherty was convicted of rape, and appeals.

Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

F. C. Peck, for appellant.

William Carter, Dist. Atty., and Edward R. Coyne, for the People.

BRADLEY, J.

The indictment contained two counts. the first, it is charged that the defendant, on the 1st day of July, 1892, at the town of Mt. Morris, in the county of Livingston, “did wickedly and feloniously perpetrate an act of sexual intercourse with one Mary Sweeney, a female not his wife, the said Mary Sweeney being at said time a female under the age of sixteen years, contrary to the statute in such case made and ‘provided, and against the peace of the people of the state of New York, and their dignity.” The second count, for the purposes of any question presented, is not essentially different from the first. The defendant demurred to the indictment on the grounds (1) that the acts stated in it do not com stitute á crime; (2) that no crime is charged by it. This demurrer was overruled, and exception taken, and the defendant thereupon entered his plea of not guilty to the indictment. The trial was had, and the result was a verdict of guilty, and a judgment of conviction.

The question raised by the demurrer requires a reference to the statute, which, at the time of the commission of the alleged offense, provided that:

> “Rape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will or without her consent. A person perpetrating such an act or an act of sexual intercourse with a female not his wife (1) when the female is under the age of sixteen years * * * or *642(3) when her resistance is forcibly overcome * * * is punishable by imprisonment,” etc. Pen. Code, § 278.

The objection made to the indictment was that it failed to charge the defendant with any defined crime. It did set forth the act which was, by the statute, a criminal offense. Was anything further requisite? The statute provides that “an indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime.” Code Cr. Proc. § 254. This is the definition of a presentment by the grand jury. Then, as to its form and contents the statute further provides that “the indictment must contain (1) the title of the action, specifying the name of the court in which the indictment is presented, and the names of the parties. (2) A plain and concise statement of the act constituting the crime without unnecessary repetition” (Id. § .275); that “words used in a statute to define a crime need not be strictly pursued in the indictment; but other words conveying the same meaning, may be used” (Id. § 283); that “no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits” (Id. § 285); and that “neither presumptions of law, nor matters of which judicial notice is taken need be stated in an indictment” (Id. § 286).

It is, however, urged on the part of the defendant that, although the act charged in the indictment was a crime, the definition of it was “rape,” and that the allegation in it of such definition was essential to its support. It is the general rule that an indictment for a statutory offense is sufficient when it charges the offense as the statute defines it. Phelps v. People, 72 N. Y. 334; Tully v. People, 67 N. Y. 15. This the indictment in the present case does with substantial precision. When a crime has a general name, it is. desirable, for certainty, that it be inserted in the indictment, as well as the act which constitutes it. Such is the form mentioned in the statute (Code Cr. Proc. § 276). But it does not, by the terms of that section, seem to be imperative in its application to all cases. It purports to give what may be substantially the form. In that respect, by its terms, it is not applicable to an offense having no general name. In People v. Maxon, 57 Hun, 367, 10 N. Y. Supp. 593, it was held that the crime charged as in the present indictment- was not rape, because it did not come within the definition of that crime. By the Revised Statutes, the “carnally and unlawfully knowing any female child under the age of ten years” constituted the crime of rape, and was there so designated. 2 Rev. St. p. 663, § 22. The language of section 278 of the Penal Code differs from that of the prior statute on the subject, and, as it was at the time in question, is susceptible of a construction which rendered sexual intercourse against the will, or without the consent, of the female, essential to the crime of rape, as there defined, as held in People v. Maxon. In the view taken, it is unnecessary to consider the question whether or not the theory of the crime is such that a female within the desig*643noted age cannot consent to sexual intercourse, and therefore, in the legal sense, it is had against her will. However that may be, the act constituting the crime in the present case is concisely stated in the indictment, and there is no opportunity to misunderstand from it the nature of the offense charged, nor is it susceptible of any other than one interpretation, and that one cannot mislead in that or any respect. In People v. Dumar, 106 N. Y. 502, 13 N. E. 325, and in People v. Connor, 126 N. Y. 278, 27 N. E. 252, the question presented here did not arise. In the former the indictment was held insufficient because it failed to state the act which constituted the crime. This the charge of larceny did not necessarily do. And, in the Connor Case, no question arose upon the sufficiency of the indictment. There the conviction of the charge of rape upon a female upwards of 16 years of age was affirmed. As has been observed, the purpose of the statute to which reference has been made is that no indictment shall be deemed insufficient by reason of an imperfection in matter of form which does not tend to the prejudice of any substantial right of the defendant. The conclusion is that the indictment in question is sufficient, and therefore the demurrer was properly overruled.

In July, 1882, the defendant became, and thereafter, up to the time of the presentment of the charge in question against him, continued to be, the pastor in charge of St. Patrick’s Church, at Mt. Morris, N. Y. The prosecutrix attended that church. She became 16 years of age July 4, 1892, and remained unmarried. She testified that upon eight occasions during the period commencing in February, 1892, and ending in June following, the defendant had sexual intercourse with her; and, other than by her testimony, evidence was given, tending to prove circumstances corroborative of the charge of such intercourse by him with her within that period of time. The evidence on the part of the prosecution was sufficient to send the case to the jury. The defendant, by his testimony, fully contradicted the charge, and the evidence tending to prove it. It was for the jury to determine what the truth was. The question of fact was submitted to them, and their verdict was supported by the evidence. After the people had given evidence tending to prove that the defendant had sexual intercourse with the prosecutrix twice in June, 1892, and had proved that she had on March 16, 1893, given birth to a fully-developed child, the defendant offered to prove that certain other persons in the month of June, 1892, had sexual intercourse with her. This evidence, on the objection of the prosecution, was excluded, and exception taken. The facts of pregnancy and childbirth were, of themselves, unimportant. Nor was it important that such intercourse had been had with the prosecutrix by others. That fact would be no defense for the defendant, if he also had sexual intercourse with her while she was under the age of 16 years. But, so far as the evidence offered by the defendant may have had a bearing in refutation or contradiction of the charge made against him, it was competent. When it was proven that Miss Sweeney gave birth to a child in March, 1893, that fact, in view of her evidence that no person other than the defendant had had sexual inter*644course with her, was corroborative of the charge against him. It was evidently proved for such purpose, as it was quite satisfactory evidence to the effect that such intercourse had been had with her by some person. The defendant, therefore, should have been permitted to prove that others, in the month of June, and thereabouts, had sexual intercourse with her, as bearing, so far as it might, against the charge of such intercourse which that corroborative evidence tended to impute to him. The purpose of the evidence so offered by the defendant was legitimate. It cannot now be seen what may have been the effect of the evidence, if it had been received, or that the defendant may not have been prejudiced by its exclusion. The defendant’s exception was well taken, and for that reason the judgment and conviction should be reversed, and a new trial granted. All concur.