Imágenes de páginas

E. 880; People v. Watkins, 23 App. Div. 253, E. 1017. This rule has, however, excep48 N. Y. Supp. 856; People v. Koerner, 154 tions in those cases in which the evidence N. Y. 355, 48 N. E. 730; People v. Smith, offered has a natural tendency to corrobo172 N. Y. 210, 64 N. E. 814; People v. Wolf, rate or supplement admitted direct evidence. 183 N. Y. 464, 76 N. E. 592; People v. People v. Duffy, 212 N. Y. 57, L.R.A. 1915B, Estell, 106 App. Div. 516, 94 N. Y. Supp. 103, 105 N. E. 839; People v. Molineux, 168 748; Smith v. State, Tex. Crim. Rep. N. Y. 264, 293, 62 L.R.A. 193, 61 N. E. 286; 73 S. W. 401; Henard v. State, 46 Tex. People v. Neff, 191 N. Y. 210, 83 N. E. 970; Crim. Rep. 90, 79 S. W. 810; Parkinson v. Rex v. Bond, 21 Cox, C. C. 252; People v. State, 135 Ill. 401, 10 L.R.A. 91, 25 N. E. Dolan, 186 N. Y. 4, 116 Am. St. Rep. 521, 764; State v. Lawrence, 74 Ohio St. 38, 77 | 78 N. E. 569, 9 Ann. Cas. 453; People v. N. E. 266, 6 Ann. Cas. 888; People v. Etter, Katz, 209 N. Y. 311, 326, 103 N. E. 305, 81 Mich. 570, 45 N. W. 1109.

Ann. Cas. 1915A, 501; People v. Peckens,

153 N. Y. 576, 594, 47 N. E. 883; People v. Collin, J., delivered the opinion of the Doty, 175 N. Y. 164, 67 N. E. 303 ; People v. court:

Marrin, 205 N. Y. 275, 43 L.R.A. (N.S.) 754, The defendant was convicted of the crime 98 N. E. 474; People v. Place, 157 N. Y. of rape in the second degree under the pro- 584, 598, 52 N. E. 576; People v. Shea, 147 vision of Penal Law, ß 2010 (Consol. Laws, N. Y. 78, 99, 41 N. E. 505; Mayer v. People, chap. 40): “A person who perpetrates an 80 N. Y. 364. act of sexual intercourse with a female, not And the doctrine is now well, if not unihis wife, under the age of eighteen years, versally, established that in prosecutions for under circumstances not amounting to rape adultery, seduction, statutory rape upon in the first degree, is guilty of rape in the one under the age of consent, and incest, second degree, and punishable with im- acts of sexual intercourse between the prisonment for not more than ten years." parties prior to the offense charged in the

The female involved gave testimony, un- indictment may be given in evidence. The der her direct examination as a witness for reason or reasons sustaining the doctrine the prosecution, in proof that the offense may be apprehended by recent statements of charged in the indictment was committed, the courts in applying it. In Director of and additionally, under the overruled ob- Public Prosecutions v. Ball, 6 Crim. App. jection and exception of the defendant, that Rep. 31, 104 L. T. N. S. 48, 80 L. J. K. B. subsequent to the commission of it the de- N. S. 691, [1911] A. C. 47, 75 J. P. 180, 22 fendant had sexual intercourse with her Cox, C. C. 370, 27 Times L. R. 162, a case four or five times. Because of the reception of incest, evidence tending to show acts of this evidence the appellate division, as prior to and of the character of that charged appears from the memorandum opinion was received. The court of criminal appeal there pronounced, reversed the conviction, reversed the conviction on account of its holding that “the court erred in admitting reception (5 Crim. App. Rep. 238), 80 L. J. testimony as to subsequent offenses by the K. B. N. S. 689, (1911] A. C. 72, 104 L. T. defendant upon the person of the female in-N. S. 47, 22 Cox, C. C. 364, 55 Sol. Jo. 190, volved,” and granted a new trial. We do and was in turn reversed by the House of not agree with the appellate division in the Lords [103 L. T. N. S. 738), for whom the view thus taken.

lord chancellor said: “I consider that this It is a general rule that it is error to re- evidence was clearly admissible on the issue ceive evidence, as proof of the offense that this crime was committed, not to prove charged, that an accused has committed a

mens rea, as Mr. Justice Darling concriminal offense other than that charged in sidered, but to establish the guilty relations the indictment. Evidence which tends only between the parties, and the existence of a to prove collateral facts, and has not a natu- sexual passion between them as elements in ral tendency to establish the fact in contro: proving that they had illicit connection in versy, should be excluded, because: (a) It

fact on or between the dates charged. Their would have a tendency to withdraw and mislead the attention and deliberation of passion for each other was as much evidence the jury from the real issue under inquiry; of the fact that when there they had guilty

as was their presence together in the bed, and (b) would subject the accused to charges unconnected with that issue, and relations with each other. I agree that the against which he had no reason to prepare courts of law ought to be very careful to a defense. People v. Grutz, 212 N. Y. 72, preserve the time-honored law of England ante, 229, 105 N. E. 843 ; People v. Molineux, that you cannot convict a man of one crime 168 N. Y. 264, 291, 62 L.R.A. 193, 61 N. E. by proving that he has committed some 286; People v. Sharp, 107 N. Y. 427, 456, other crime. That, and all other safeguards 466, 1 Am. St. Rep. 851, 14 N. E. 319; of our criminal law, will be jealously guardPeople v. McLaughlin, 150 N. Y. 365, 44 N.'ed, but here I think that the evidence went


directly to prove the actual crime for which ing: "Doubtless the extent to which such these persons were indicted.”

testimony may be admitted must, in a large In Boyd v. State, 81 Ohio St. 239, 135 Am. measure, be determined by the trial judge St. Rep. 781, 90 N. E. 355, 18 Ann. Cas. 441, in the exercise of a sound discretion. But a case of incest, evidence of sexual inter- there are bounds to his discretion. The evi. course between the parties through the two dence offered must at least have a legitimate months last prior to the date of the act tendency to show a lewd or adulterous discharged was held relevant as tending to es position between the parties at or about the tablish the particular act in controversy, be time when the offense is laid in the indictcause it showed the relation and familiarity ment.” 25 App. Div. 587, 50 N. Y. Supp. of the parties, their disposition and antece- 987. dent conduct toward each other, and was The reasoning of the Freeman Case is corroborative of the testimony of the prose- sound and salutary. The preponderance of cuting witness. In State v. Schueller, 120 judicial opinion now is that acts subsequent Minn. 26, 138 N. W. 937, a case of statutory to the act charged in the indictment (as well rape, the reception of similar evidence was as those prior to it) reasonably indicating a approved on the theory of disclosing the re- continuity of the lascivious disposition, are lationship between the parties, opportunity relevant, subject, however, to the rule that and inclination to commit the act com- when the admissibility of evidence depends plained of, and as corroborative of the speci- upon collateral facts, the regular course is fic charge. The reasoning and conclusion of for the trial judge to pass upon the fact in such decisions have our approval.

the first instance, and then, if he admits the The judicial decisions are not, however, in evidence, to instruct the jury as to its purharmony in determining the question wheth- pose and effect, and to exclude it if they er or not illicit acts subsequent to that should be of a different opinion on the precharged are relevant and admissible in cases liminary matter. The question for the jury of the character above mentioned. While throughout the trial is, Is the defendant this court has not directly considered it, guilty of the specific offense charged in the courts of the state have answered it in the indictment? But when that offense involves negative. People v. Robertson, 88 App. Div. illicit sexual intercourse by consent, subse198, 84 N. Y. Supp. 401; People v. Farina, quent offenses of like character between the 134 App. Div. 110, 118 N. Y. Supp. 817; parties may be relevant, because the extreme People v. Bills, 129 App. Div. 798, 114 N. intimacy and the amorous inclination and Y. Supp. 587. The respondent cites the case willingness evidenced by its commission are of People v. Flaherty, 162 N. Y. 532, 57 N. a growth preceding the offense, and are E. 73. It is weightless as to the question rather nourished than annihilated by their under consideration. The error found in it exercise. They do not suddenly arise and was that the defendant throughout the seven are not likely to suddenly disappear; hence days of the trial was unable to ascertain it is that their indulgence prior or subsewhich of seven offenses testified to by the quent to the specific occasion charged may complainant he was indicted and to be tried tend to increase and strengthen the proof as for. See also State v. Acheson, 91 Me. 240, to that occasion. The acts offered as cor39 Atl. 570. In People v. Freeman, 25 App. roborative may be so remote as to be irreleDiv. 583, 50 N. Y. Supp. 984, affirmed in 156 vant. Remoteness, however, does not necesN. Y. 694, 50 N. E. 1120, on the opinion be- sarily result from mere lapse of time, which low, the defendant was convicted of the is not necessarily an element of it. Its esstatutory crime of rape in the second degree, sence is such a want of open and visible con. committed on January 13, 1894. Evidence nection between the evidentiary and the of acts of a similar character between the principal facts that, all things considered, same parties intermediate May 9 and June the former are not worthy or safe to be ad11, 1894, was admitted against the objec-mitted in proof of the latter. If those acts tion and exception of defendant. There was are of a character or were done under condi. no proof of familiarity or association be- tions not tending to prove the illicit desire tween them within the period from January and willingness at the time of the offense 13 to May 9, 1894. It was held that, giving charged, they should be rejected by the full effect to the principle that subsequent trial judge. If, on the other hand, he deems acts of a similar character may show the them so related, by brevity of time or conadulterous disposition of the parties and tinuity of lewdness or otherwise, to the prin. corroborate the proof that the specific act cipal act as to justify the inference or as charged was committed, the subsequent acts to indicate that the mutual disposition of testified to had not such connection with or the parties evidenced by them existed at the relation to the antecedent act as to show a time of it, they should be received and submutually amorous disposition between the mitted to the jury under the proper charge. parties on January 13, 1894, the court say. The question of remoteness, to be decided in




the first instance by the trial judge, as al- Same removal of property placing ready stated, must depend upon all the con- in repair shop. siderations, including time, the character of 2. A policy on an automobile to be kept the evidence, and all the surrounding cir- in a specified private garage with the privicumstances which in his opinion ought to lege of operating the car and housing it have a bearing upon its worthiness to be temporarily, in other places while en route

or being cleaned or repaired, which has brought into the consideration and determi- been suspended by the permanent removal nation of the matter in contention. State of the car to another state, is not restored v. Kelly, 77 Conn. 266, 58 Atl. 705. Upon by temporarily placing the car in a repair principle and under the best-reasoned ju- shop without returning it to the place specidicial decisions, the ruling of the trial court fied in the policy, so as to render the inunder review correct. Thayer

surer liable for its destruction while in

such shop. Thayer, 101 Mass. 111, 100 Am. Dec. 110; Sullivan v. Hurley, 147 Mass. 387, 18 N. E.

(December 9, 1914.) 3; Taft v. Taft, 80 Vt. 256, 130 Am. St.

984703, 12 AnnCas; PPEAL by plaintiff from a judgment of State v. Sebastian, 51 Conn. 1,69 Atl. 1054 | A

the Superior Court for Mecklenburg State v. Bridgman, 49 Vt. 202, 24 Am. Rep. County in defendant's favor in an action 124; State v. Williams, 76 Me. 480; People brought to recover the amount alleged to be v. Gray, 251 Ill. 431, 96 N. E. 268; State v. due on a policy of insurance issued by deMore, 115 Iowa, 178, 88 N. W. 322; State fendant on plaintiff's automobile. Affirmed. v. Leek, 152 Iowa, 12, 130 N. W. 1062; Peo- The facts are stated in the opinion.. ple v. Koller, 142 Cal. 621, 76 Pac. 500; Messrs. J. W. Keerans and J. W. State v. Markins, 95 Ind. 464, 48 Am. Rep. Hutchison, for appellant: 733; State v. Hibbard, 76 Kan. 376, 92 Pac. The removal of the car without the assent 304; Lamphere v. State, 114 Wis. 193, 89 or knowledge of the company operated as a N. W. 128; Leedom v. State, 81 Neb. 585, suspension of the policy during the period 116 N. W. 496; Sykes v. State, 112 Tenn. of the violation, and the policy did not 572, 105 Am. St. Rep. 972, 82 S. W. 185; | ipso facto become void; at the time of the State v. Brown, 85 Kan. 418, 116 Pac. 508; fire, the car being in a place where it had State v. Sysinger, 25 S. D. 110, 125 N. W.

a right to be under the terms of the policy, 879, Ann. Cas. 1912B, 997; Levy v. Terri. and therefore being lawfully within the extory, 13 Ariz. 425, 115 Pac. 415. A scrutiny ception of the private garage warranty, the of the record and briefs discloses no other policy revived, or again attached, the moexception which requires consideration in ment it was placed in the plant of the Gibthis opinion.

bes Machinery Company, and so was in full The judgment appealed from should be re- force and effect at the time of the fire. versed, and the judgment of conviction af- Ostrander, Fire Ins. 2d ed. p. 410, $ 145; firmed.

Alston v. Old North State Ins. Co. 80 N. C.

326; Laselle v. Hoboken F. Ins. Co. 43 N. Willard Bartlett, Ch. J., and Werner, J. L. 468; Ring v. Phænix Assur. Co. 145 Miller, and Cardozo, JJ.

concur. Mass. 426, 14 N. E. 525; Traders' Ins. Co. Hogan, J., concurs in result. Hiscock, v. Catlin, 163 Ill. 256, 35 L.R.A. 595, 45 J., absent.

N. E. 255; Phenix Ins. Co. V. Johnston, 42
Ill. App. 66; McKibban v. Des Moines Ins.
Co. 114 Iowa, 41, 86 N. W. 38; Born v.

Home Ins. Co. 110 Iowa, 379, 80 Am. St. NORTH CAROLINA SUPREME Rep. 300, 81 N. W. 676; Fireman's Ins. Co. COURT.

Note. - Insurance: effect of provision

permitting temporary removal of MRS. JOSEPHINE I. LUMMUS, Appt.,

property from place of insurance

designated in policy, after a perFIREMEN'S FUND INSURANCE COM- manent removal from that place. PANY.

As to temporary absence of insured prop

erty from location stated in the policy, see (167 N. C. 654, 83 S. E. 688.)

notes to Benton v. Farmers' Mut. F. Ins.

Co. 26 L.R.A. 237; Lathers v. Mutual F. Insurance change of location of Ins. Co. 22 L.R.A. (N.S.) 848; and Joplin property materiality.

v. National Live Stock Ins. Asso. 44 L.R.A. 1. The permanent removal of an auto- (N.S.) 574. mobile from one garage, where it was in. As to insurance covering automobiles or sured, to another, is not such an imma indemnifying against injury, or liability for terial breach of warranty that the policy injury, caused thereby, see notes to Harris will not be avoided thereby.

V. American Casualty Co. 44 L.R.A. (N.S.)



v. Cecil, 12 Ky. L. Rep. 259; Obermeyer v., First, that the action was not brought with. Globe Mut. Ins. Co. 43 Mo. 573; Organ v. in one year; second, that there was a breach Hibernia F. Ins. Co. 3 Mo. App. 576; Ger- of the private garage warranty; and, third, man Mut. F. Ins. Co. v. Fox, 4 Neb. (Unof.) that proof of loss was not filed within sixty 833, 63 L.R.A. 334, 96 N. W. 652; Home F. days. It is only necessary that we should Ing. Co. v. Johansen, 59 Neb. 349, 80 N. W. consider the second defense. 1047; Omaha F. Ins. Co. v. Dierks, 43 Neb. The policy contains this provision: 473, 61 N. W. 740; State Ins. Co. v. Schreck, 27 Neb. 527, 6 L.R.A. 524, 20 Am. St. Rep.

"Private garage warranty. 696, 43 N. W. 340; Insurance Co. of N. A. v. Pitts, 88 Miss. 587, 7 L.R.A. (N.S.) 627, “In consideration of the reduced rate at 117 Am. St. Rep. 756, 41 So. 5, 9 Ann. Cas. which this policy is written, it is under54, note; Sumter Tobacco Warehouse Co. v. stood that the property insured hereunder Phænix Assur. Co. 76 S. C. 76, 10 L.R.A. shall at all times be kept or stored in the (N.S.) 737, 121 Am. St. Rep. 941, 56 S. E. private garage or private stable, situate in 654, 11 Ann. Cas. 780; Schmidt v. Peoria M. rear of residence No. 1412 Third avenue, & F. Ins. Co. 41 Ill. 296; Clute v. Clinton Columbus, Georgia. Privilege, however, to ville Mut. F. Ins. Co. 144 Wis. 638, 32 operate car and to house in any other buildL.R.A.(N.S.) 240, 129 N. W. 661; Phænix ing or buildings for a period of not exceedAssur. Co. v. Munger Improved Cotton ing fifteen days at any one location at any Mach. Mfg. Co.

Tex. Civ. App. —, 49 s. one time, providing the car is en route visitW. 271.

ing, or being cleaned or repaired." Messrs. Smith, Hammond, & Smith and Osborne, Cocke, & Robinson for ap- It appears from the statement of facts pellee.

that after the said policy of insurance was

issued and delivered, and without the knowl. Brown, J., delivered the opinion of the edge or consent of the defendant, the plaincourt:

tiff, during the month of June, 1911, reThis is an action to recover on a policy moved said automobile from the private of insurance issued by the defendant upon garage or private stable in the rear of resi

automobile. The defendant pleads: 1 dence No. 1412 Third avenue, Columbus, 70, and Patterson v. Standard Acci. Ins. Co., to the time of loss, as appears in the LUM51 L.R.A. (N.S.) 583.

MUS CASE. It will be noticed that the provision in- In that case the automobile had been pervolved in LUMMUS V. FIREMEN'S FUND INS. manently removed from the private garage, Co. gave the insured permission to house and was destroyed while temporarily in a his car in any other building than the shop for repairs. Under the policy it was private garage named as its permanent insured while at a certain base, i. e., the place of storage, for a period of fifteen days private garage, with certain incidental at any one location at any one time, pro- privileges so long as it was kept at that vided the car was en route visiting, or being base. A permanent change of the base cleaned or repaired. A removal of the car nullified the policy, except as a return to not protected by this provision would the former base might have revived its either have the effect of absolutely avoid- operation, but the mere claiming of the ing the risk, or of suspending it during the incidental privileges (in the instant case continuance of the breach. The decision un- the privilege to leave it in a shop for reder the facts in the LUMMUS Case would pairs), in connection with the substituted be the same under either of these construc- base, would not revive the policy and autions.

thorize a recovery for the destruction of the It is true that in some cases involving machine while it was undergoing repairs. policies providing for the avoidance of the These privileges were incidental, i. e., risk in case of a breach of certain war- privileges which were to be allowed only ranties or conditions, a recovery has been while the automobile was kept at the priallowed although a breach of these war- vate garage, and were not privileges which ranties or conditions has occurred, where were allowed while it was kept elsewhere. the breach had ceased before a loss hap- This being true, and there having been no pened. For example, see National F. Ins. return to the original base before the fire, Co. v. Catlin, 163 Ill. 256, 35 L.R.A. 595, it is clear that, although the policy might 45 N. E. 255; Born v. Home Ins. Co. 110 only have been suspended, and not absoluteIowa, 379, 80 Am. St. Rep. 300, 81 N. W. ly avoided, by reason of the breach, yet no 676; Ring v. Phænix Assur. Co. 145 Mass. recovery could be had, since the breach was 426, 14 N. E. 525; German Mut. F. Ins. not terminated by reason of the car having Co. v. Fox, 4 Neb. (Unof.) 833, 63 L.R.A. been in a repair shop at the time of the 334, 96 N. W. 652; Laselle v. Hoboken F. loss, but actually continued up to the time Ins. Co. 43 N. J. L. 468. These cases, how the loss occurred. No other case dealing ever, are obviously distinguishable from one with a similar provision has been disclosed. where the breach of warranty continued up

J. T. W.



Georgia, to Charlotte, North Carolina, where, the policy which we have cited, rendered it remained for a period of five or six the contract of insurance void. months, until it was placed in the machine The judgment of the Superior Court is skop of the Gibbs Machinery Company in affirmed. Columbia, South Carolina, as hereinafter mentioned. That said automobile, while in Charlotte, North Carolina, for the period above mentioned, was not en route from Co

OHIO SUPREME COURT. lumbus, Georgia, nor was it visiting, nor be

GOINS et al., Plffs, in Err., ing cleaned or repaired, but, on the contrary, its removal from the location aforesaid in

STATE OF OHIO. Columbus, Georgia, was permanent. That

December, 1911, the plaintiff - Ohio St. —, 107 N. E. 335.) placed said automobile in the machine shop of the Gibbs Machinery Company of Colum- Burglary - breaking · force necessary. bia, South Carolina, to be painted and re- Where any force, however slight, is repaired. That the said automobile remained quired to effect an entrance into a buildin the said machine shop of the Gibbs Ma- ing through a doorway partly open, such chinery Company at Columbia, South Caro- act, constitutes a forcible breaking under

§ 12,438, Gen. Code. lina, until the 10th of January, 1912, when it was destroyed by fire which originated in

(April 21, 1914.) said machine shop. The contention of the defendant is that E Clinton County to review a judgment

RROR to the Court of Appeals for the policy became forfeited because of this breach of the private garage warranty. The affirming a judgment of the Court of Complaintiff contends that the breach of war- mon Pleas convicting defendants of maliranty was immaterial, because it in no way ciously and forcibly breaking and entering contributed to the loss, citing Revisal, a certain building, and overruling their § 4808. This position is untenable. In con motion for new trial. Affirmed. struing that section, this court has held that, in application for a policy of insur- Statement by Newman, J.: ance, every fact stated will be deemed ma

At the January term, 1913, of the court terial which would materially influence the of common pleas of Clinton county, plainjudgment of an insurance company, either tiffs in error were indicted, under § 12,438, in accepting the risk or in fixing the rate Gen. Code, for maliciously and forcibly of premium. Bryant v. Metropolitan L. Ins. breaking and entering in the night season Co. 147 N. C. 181, 60 S. E. 983. It is fur- a certain building, namely, a certain chickther held in the same case that it is not en house, the property of one Mary Linton, necessary, in order to defeat a recovery upon and stealing therefrom chickens of the such policy of insurance, that a material value of $15, the property of said Mary misrepresentation by the applicant must be Linton. A trial to a jury was had, and shown to have contributed in some way to plaintiffs in error were found guilty as the loss for which indemnity is claimed. charged in the indictment. A motion for See also Fishblate v. Fidelity & C. Co. 140 a new trial was overruled, sentence proN. C. 589, 53 S. E. 354.

nounced, and judgment entered. This judgNothing is better settled than that the lo- ment was affirmed by the court of appeals, cation of the property insured is essentially and plaintiffs in error here seek a reversal material in contracts of insurance, and en- of the judgment below, and ask for their ters largely into the consideration of the discharge. company in fixing the rate of premium. The clause of the policy in this case, containing Messrs. Hayes & Hayes for plaintiff's this warranty, expressly declares that a re- in error. duced rate of premium is granted because Mr. Joe T. Doan for the State. of the insertion of this provision in the contract. The contention of the plaintiff that Newman, J., delivered the opinion of the policy could remain dormant for six the court: months, and then be revived suddenly be- The only means of ingress to and egress cause the property was burned up in a repair shop, is utterly untenable.

Headnote by the Court. When the owner took the automobile

Note. — As to burglary by pushing open away from the garage in Columbus, it was not for a temporary purpose. There was a

door already partly open, see note to State

v. Lapoint, 47 L.R.A. (N.S.) 717; and see removal of the property permanently to an- references at close of that note for annotaother state, which, under the provisions of I tion on related subjects.

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