APPEAL by the defendant, Andrew Long, from a judgment of the Court of General Sessions of the county of New York, rendered against the defendant on the 29th day of January, 1912, convicting him of the crime of rape in the first degree, and also from an order denying the defendant's motion for a new trial.
Stanley Holcomb Molleson, for the appellant.
Robert C. Taylor of counsel [Charles S. Whitman, District Attorney], for the respondent.
The complainant, Mary Kapalay, nineteen years of age, was born at Oraway in Austria, had little knowledge of English and was examined through an interpreter. She lived with her parents on a farm and had never worked for any one else until she came to America. She had never seen a negro until she came to this country. She had been employed by Mrs. Saffer 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. Saffer 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.' Upon 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 he 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 don'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 tenth; 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: '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, * * *.'
The defendant testified that he had a conversation with complainant's mistress in complainant's presence. 'Q. 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 ...