Opinion
December Term, 1902.
Judgment reversed and new trial ordered.
We are of opinion that this evidence raises a reasonable doubt as to the guilt of the defendant, that the verdict is against the weight of the evidence and that justice requires that he should have a new trial. (Code Crim. Proc. § 527.) Counsel for the respondent, apparently appreciating that the testimony of the complaining witness as to the circumstances under which she claims that the assault took place is overborne by the other testimony in the case, seeks to sustain the conviction upon the theory that it is probable that there was no very violent assault upon her and not much resistance upon her part. Her testimony as to the place of the assault and the circumstances under which it took place, with her screaming and resisting to the extent of her ability, is certainly very improbable. In view of the preponderating evidence that the defendant did not leave his place of business until after she had had ample time to pass out of the building, we think it will not do to speculate and accept as truthful that part of her testimony which shows the assault, and reject entirely her evidence concerning her resistance and outcries. Moreover, the nature of the testimony of the female physician is such as to indicate that the conditions she found were produced more recently than the preceding morning. This complainant's whereabouts from the time of the alleged assault should have been more satisfactorily accounted for, as well as her connection with Mrs. Soloman. It does not appear who Mrs. Soloman is, nor how or why she accompanied the complaint. The testimony of the sister, if true, does not necessarily sustain the evidence of the complaining witness. It would indicate that the defendant was guilty of some impropriety, but not necessarily that he was guilty of this serious crime. In view of the previous good character of the defendant, which is not questioned and is sustained by reputable witnesses, and of the other evidence in his behalf which we regard as preponderating, we think it will not do to allow the conviction in this case to stand. The judgment should, therefore, be reversed and a new trial ordered. Van Brunt, P.J., and Patterson, J., concurred; Ingraham and Hatch, JJ., dissented.
I think that in this case there was a fair question for the jury; that the case was fairly submitted to the jury by a charge which correctly presented the questions to be determined; that the rights of the defendant were in all respects protected, and that we are not justified in reversing the judgment. The testimony of the complainant was amply corroborated, and if the admission of the defendant, testified to by the complainant's sister, was believed, the jury was justified in finding that the defendant committed the assault upon the complainant. The testimony of the complainant as to the resistance that she made, while probably exaggerated, does not justify us in disregarding her testimony. Her recollection of what occurred at the time such an assault was made upon her would probably be considerably confused, and I think that she might in entire good faith exaggerate the resistance that she made. The character of the witnesses called by the defendant, the nature of their testimony and their relation to the defendant's father made their credibility a question for the jury. The relation that exists between an employer of young girls and such employees is such that it gives him great influence over them, and I think that their protection requires that this law should be strictly administered. I think, therefore, that the judgment should be affirmed. Hatch, J., concurred.