E. 880; People v. Watkins, 23 App. Div. 253, | E. 1017. This rule has, however, excep48 N. Y. Supp. 856; People v. Koerner, 154 N. Y. 355, 48 N. E. 730; People v. Smith, 172 N. Y. 210, 64 N. E. 814; People v. Wolf, 183 N. Y. 464, 76 N. E. 592; People v. Estell, 106 App. Div. 516, 94 N. Y. Supp. 748; Smith v. State, Tex. Crim. Rep. 73 S. W. 401; Henard v. State, 46 Tex. Crim. Rep. 90, 79 S. W. 810; Parkinson v. State, 135 Ill. 401, 10 L.R.A. 91, 25 N. E. 764; State v. Lawrence, 74 Ohio St. 38, 77 N. E. 266, 6 Ann. Cas. 888; People v. Etter, 81 Mich. 570, 45 N. W. 1109. tions in those cases in which the evidence offered has a natural tendency to corroborate or supplement admitted direct evidence. People v. Duffy, 212 N. Y. 57, L.R.A. 1915B, 103, 105 N. E. 839; People v. Molineux, 168 N. Y. 264, 293, 62 L.R.A. 193, 61 N. E. 286; People v. Neff, 191 N. Y. 210, 83 N. E. 970; Rex v. Bond, 21 Cox, C. C. 252; People v. Dolan, 186 N. Y. 4, 116 Am. St. Rep. 521, 78 N. E. 569, 9 Ann. Cas. 453; People v. Katz, 209 N. Y. 311, 326, 103 N. E. 305, 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: The defendant was convicted of the crime of rape in the second degree under the provision of Penal Law, § 2010 (Consol. Laws, chap. 40): "A person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree, and punishable with imprisonment for not more than ten years." The female involved gave testimony, under her direct examination as a witness for the prosecution, in proof that the offense charged in the indictment was committed, and additionally, under the overruled objection and exception of the defendant, that subsequent to the commission of it the defendant had sexual intercourse with her four or five times. Because of the reception of this evidence the appellate division, as appears from the memorandum opinion there pronounced, reversed the conviction, holding that "the court erred in admitting testimony as to subsequent offenses by the defendant upon the person of the female involved," and granted a new trial. We do not agree with the appellate division in the view thus taken. Marrin, 205 N. Y. 275, 43 L.R.A. (N.S.) 754, 98 N. E. 474; People v. Place, 157 N. Y. 584, 598, 52 N. E. 576; People v. Shea, 147 N. Y. 78, 99, 41 N. E. 505; Mayer v. People, 80 N. Y. 364. And the doctrine is now well, if not universally, established that in prosecutions for adultery, seduction, statutory rape upon one under the age of consent, and incest, acts of sexual intercourse between the parties prior to the offense charged in the indictment may be given in evidence. The reason or reasons sustaining the doctrine may be apprehended by recent statements of the courts in applying it. In Director of Public Prosecutions v. Ball, 6 Crim. App. Rep. 31, 104 L. T. N. S. 48, 80 L. J. K. B. N. S. 691, [1911] A. C. 47, 75 J. P. 180, 22 Cox, C. C. 370, 27 Times L. R. 162, a case of incest, evidence tending to show acts prior to and of the character of that charged was received. The court of criminal appeal reversed the conviction on account of its reception (5 Crim. App. Rep. 238), 80 L. J. K. B. N. S. 689, [1911] A. C. 72, 104 L. T. N. S. 47, 22 Cox, C. C. 364, 55 Sol. Jo. 190, and was in turn reversed by the House of Lords [103 L. T. N. S. 738], for whom the 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 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 as was their presence together in the bed, the jury from the real issue under inquiry; and (b) would subject the accused to of the fact that when there they had guilty 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." In Boyd v. State, 81 Ohio St. 239, 135 Am. St. Rep. 781, 90 N. E. 355, 18 Ann. Cas. 441, a case of incest, evidence of sexual intercourse between the parties through the two months last prior to the date of the act charged was held relevant as tending to establish the particular act in controversy, because it showed the relation and familiarity of the parties, their disposition and antecedent conduct toward each other, and was corroborative of the testimony of the prosecuting witness. In State v. Schueller, 120 Minn. 26, 138 N. W. 937, a case of statutory rape, the reception of similar evidence was approved on the theory of disclosing the relationship between the parties, opportunity and inclination to commit the act complained of, and as corroborative of the specific charge. The reasoning and conclusion of such decisions have our approval. testimony may be admitted must, in a large measure, be determined by the trial judge in the exercise of a sound discretion. But there are bounds to his discretion. The evidence offered must at least have a legitimate tendency to show a lewd or adulterous disposition between the parties at or about the time when the offense is laid in the indictment." 25 App. Div. 587, 50 N. Y. Supp. 987. The reasoning of the Freeman Case is sound and salutary. The preponderance of judicial opinion now is that acts subsequent to the act charged in the indictment (as well as those prior to it) reasonably indicating a continuity of the lascivious disposition, are relevant, subject, however, to the rule that when the admissibility of evidence depends upon collateral facts, the regular course is for the trial judge to pass upon the fact in 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 concommitted 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 condino 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 princorroborate 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 removal of property in repair shop. 2. A policy on an automobile to be kept in a specified private garage with the privilege of operating the car and housing it temporarily in other places while en route or being cleaned or repaired, which has been suspended by the permanent removal of the car to another state, is not restored by temporarily placing the car in a repair shop without returning it to the place specified in the policy, so as to render the insurer liable for its destruction while in such shop. the first instance by the trial judge, as al-Same State v. Sebastian, 81 Conn. 1, 69 Atl. 1054; The judgment appealed from should be reversed, and the judgment of conviction affirmed. (December 9, 1914.) PPEAL by plaintiff from a judgment of A The removal of the car without the assent or knowledge of the company operated as a suspension of the policy during the period of the violation, and the policy did not ipso facto become void; at the time of the fire, the car being in a place where it had a right to be under the terms of the policy, and therefore being lawfully within the exception of the private garage warranty, the policy revived, or again attached, the moment it was placed in the plant of the Gibbes Machinery Company, and so was in full force and effect at the time of the fire. Ostrander, Fire Ins. 2d ed. p. 410, § 145; 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. Phoenix 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. Rep. 300, 81 N. W. 676; Fireman's Ins. Co. Note. NORTH CAROLINA SUPREME - Insurance: effect of provision permitting temporary removal of property from place of insurance designated in policy, after a permanent removal from that place. As to temporary absence of insured property from location stated in the policy, see notes to Benton v. Farmers' Mut. F. Ins. Co. 26 L.R.A. 237; Lathers v. Mutual F. Ins. Co. 22 L.R.A. (N.S.) 848; and Joplin v. National Live Stock Ins. Asso. 44 L.R.A. (N.S.) 574. As to insurance covering automobiles or indemnifying against injury, or liability for injury, caused thereby, see notes to Harris v. American Casualty Co. 44 L.R.A. (N.S.) in one year; second, that there was a breach "Private garage warranty. v. Cecil, 12 Ky. L. Rep. 259; Obermeyer v., First, that the action was not brought withGlobe Mut. Ins. Co. 43 Mo. 573; Organ v. Hibernia F. Ins. Co. 3 Mo. App. 576; German Mut. F. Ins. Co. v. Fox, 4 Neb. (Unof.) 833, 63 L.R.A. 334, 96 N. W. 652; Home F. Ins. Co. v. Johansen, 59 Neb. 349, 80 N. W. 1047; Omaha F. Ins. Co. v. Dierks, 43 Neb. 473, 61 N. W. 740; State Ins. Co. v. Schreck, 27 Neb. 527, 6 L.R.A. 524, 20 Am. St. Rep. 696, 43 N. W. 340; Insurance Co. of N. A. v. Pitts, 88 Miss. 587, 7 L.R.A. (N.S.) 627, 117 Am. St. Rep. 756, 41 So. 5, 9 Ann. Cas. 54, note; Sumter Tobacco Warehouse Co. v. Phoenix Assur. Co. 76 S. C. 76, 10 L.R.A. (N.S.) 737, 121 Am. St. Rep. 941, 56 S. E. 654, 11 Ann. Cas. 780; Schmidt v. Peoria M. & F. Ins. Co. 41 Ill. 296; Clute v. Clintonville Mut. F. Ins. Co. 144 Wis. 638, 32 L.R.A. (N.S.) 240, 129 N. W. 661; Phoenix Assur. Co. v. Munger Improved Cotton Mach. Mfg. Co. Tex. Civ. App. —, 49 S. W. 271. Messrs. Smith, Hammond, & Smith and Osborne, Cocke, & Robinson for appellee. "In consideration of the reduced rate at which this policy is written, it is understood that the property insured hereunder shall at all times be kept or stored in the private garage or private stable, situate in rear of residence No. 1412 Third avenue, Columbus, Georgia. Privilege, however, to operate car and to house in any other building or buildings for a period of not exceeding fifteen days at any one location at any one time, providing the car is en route visiting, or being cleaned or repaired." It appears from the statement of facts 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: This is an action to recover on a policy of insurance issued by the defendant upon an automobile. The defendant pleads: 70, and Patterson v. Standard Acci. Ins. Co., 51 L.R.A. (N.S.) 583. It will be noticed that the provision involved in LUMMUS V. FIREMEN'S FUND INS. Co. gave the insured permission to house his car in any other building than the private garage named as its permanent place of storage, for a period of fifteen days at any one location at any one time, provided the car was en route visiting, or being cleaned or repaired. A removal of the car not protected by this provision would either have the effect of absolutely avoiding the risk, or of suspending it during the continuance of the breach. The decision under the facts in the LUMMUS CASE would be the same under either of these constructions. It is true that in some cases involving policies providing for the avoidance of the risk in case of a breach of certain warranties or conditions, a recovery has been allowed although a breach of these warranties or conditions has occurred, where the breach had ceased before a loss happened. For example, see National F. Ins. Co. v. Catlin, 163 Ill. 256, 35 L.R.A. 595, 45 N. E. 255; Born v. Home Ins. Co. 110 Iowa, 379, 80 Am. St. Rep. 300, 81 N. W. 676; Ring v. Phoenix Assur. Co. 145 Mass. 426, 14 N. E. 525; German Mut. F. Ins. Co. v. Fox, 4 Neb. (Unof.) 833, 63 L.R.A. 334, 96 N. W. 652; Laselle v. Hoboken F. Ins. Co. 43 N. J. L. 468. These cases, however, are obviously distinguishable from one where the breach of warranty continued up tiff, during the month of June, 1911, removed said automobile from the private garage or private stable in the rear of residence No. 1412 Third avenue, Columbus, to the time of loss, as appears in the LUMMUS CASE. In that case the automobile had been permanently removed from the private garage, and was destroyed while temporarily in a shop for repairs. Under the policy it was insured while at a certain base, i. e., the private garage, with certain incidental privileges so long as it was kept at that base. A permanent change of the base nullified the policy, except as a return to the former base might have revived its operation, but the mere claiming of the incidental privileges (in the instant case the privilege to leave it in a shop for repairs), in connection with the substituted base, would not revive the policy and authorize a recovery for the destruction of the machine while it was undergoing repairs. These privileges were incidental, i. e., privileges which were to be allowed only while the automobile was kept at the private garage, and were not privileges which were allowed while it was kept elsewhere. This being true, and there having been no return to the original base before the fire, it is clear that, although the policy might only have been suspended, and not absolutely avoided, by reason of the breach, yet no recovery could be had, since the breach was not terminated by reason of the car having been in a repair shop at the time of the loss, but actually continued up to the time the loss occurred. No other case dealing with a similar provision has been disclosed. J. T. W. Georgia, to Charlotte, North Carolina, where it remained for a period of five or six months, until it was placed in the machine shop of the Gibbs Machinery Company in Columbia, South Carolina, as hereinafter mentioned. That said automobile, while in Charlotte, North Carolina, for the period above mentioned, was not en route from Columbus, Georgia, nor was it visiting, nor being cleaned or repaired, but, on the contrary, its removal from the location aforesaid in Columbus, Georgia, was permanent. That December, 1911, the plaintiff placed said automobile in the machine shop of the Gibbs Machinery Company of Columbia, South Carolina, to be painted and repaired. That the said automobile remained in the said machine shop of the Gibbs Machinery Company at Columbia, South Carolina, until the 10th of January, 1912, when it was destroyed by fire which originated in said machine shop. on The contention of the defendant is that Clinton County to review a judgment affirming a judgment of the Court of Common Pleas convicting defendants of maliciously and forcibly breaking and entering a certain building, and overruling their RROR to the Court of Appeals for Statement by Newman, J.: the policy became forfeited because of this Nothing is better settled than that the location of the property insured is essentially material in contracts of insurance, and enters largely into the consideration of the company in fixing the rate of premium. The clause of the policy in this case, containing this warranty, expressly declares that a reduced rate of premium is granted because of the insertion of this provision in the contract. The contention of the plaintiff that the policy could remain dormant for six months, and then be revived suddenly because the property was burned up in a repair shop, is utterly untenable. When the owner took the automobile away from the garage in Columbus, it was not for a temporary purpose. There was a removal of the property permanently to another state, which, under the provisions of At the January term, 1913, of the court of common pleas of Clinton county, plaintiffs in error were indicted, under § 12,438, Gen. Code, for maliciously and forcibly breaking and entering in the night season a certain building, namely, a certain chicken house, the property of one Mary Linton, and stealing therefrom chickens of the value of $15, the property of said Mary Linton. A trial to a jury was had, and plaintiffs in error were found guilty as charged in the indictment. A motion for a new trial was overruled, sentence pronounced, and judgment entered. This judgment was affirmed by the court of appeals, and plaintiffs in error here seek a reversal of the judgment below, and ask for their discharge. Messrs. Hayes & Hayes for plaintiffs in error. Mr. Joe T. Doan for the State. Newman, J., delivered the opinion of the court: The only means of ingress to and egress Headnote by the COURT. Note. - As to burglary by pushing open door already partly open, see note to State v. Lapoint, 47 L.R.A. (N.S.) 717; and see references at close of that note for annotation on related subjects. |