Third Department, July, 1913. [Vol. 158. leged ice, and the plaintiff, under the statute, acquired no property in it or jurisdiction over it. The question then arises, did the plaintiff by virtue of any other law acquire any rights to the ice? All ice in navigable streams not included within the provisions of the statute is sometimes called "free" ice. This ice does not belong to the adjacent riparian owners but to the person who first peacefully appropriates it. "It may be regarded as the law of this State that the riparian owners upon navigable streams have no title to the ice which forms on such streams, as an incident to their ownership of the bank, but that the ice belongs to the first appropriator." (Briggs v. Knickerbocker Ice Co., 11 Misc. Rep. 198.) "The State owns the Hudson river in trust for the use of the public. Apart from the statute about to be considered, the ice formed upon it, like the fish within it, becomes the property of the captor who first peacefully seizes it." (Slingerland v. International Contracting Co., 43 App. Div. 224.) "The Hudson river being a navigable stream, the ice formed therein belongs to the first appropriator, and the right to take it is one owned in common with the public." (Slingerland v. International Contracting Co., 169 N. Y. 72.) In the case before us, did the plaintiff appropriate the ice? In this State there seems to have been no adjudication on the subject, no court having defined what constitutes an appropriation of free ice. There have been some expressions of opinion in other States. In Becker v. Hall (116 Iowa, 589; 56 L. R. A. 573, 574) the court said: "It is apparent from an examination of the authorities that no rule can be adopted that will exactly fit all cases, but we think there may be deduced from them a rule that will do substantial justice to all. We believe the true rule to be that there can be an appropriation of ice formed upon public waters only when the ice is fairly merchantable, and when he who seeks to appropriate it has the present intention and ability to proceed at once to the harvest thereof, and does so proceed with reasonable diligence. No rights can be acquired by staking the banks of a stream before it has frozen, as was done in this case by both parties; for if such a rule were established the public could be forever excluded from participation in such public benefits. Nor can the mark App. Div.] Third Department, July, 1913. * ing, staking or cleaning ice not yet of sufficient thickness for harvesting amount to a legal appropriation thereof." In People's Ice Co. v. Davenport (149 Mass. 322) the court said: "It is too well settled to be disputed that the property in the great ponds is in the Commonwealth; that the public have the right to use them for fishing, fowling, boating, skating, cutting ice for use or sale, and other lawful purposes; and that the owners of the shores have no exclusive rights in them except by a grant of the Legislature. * *The right to cut ice is common to all the public. The plaintiff has this right in common with the rest of the public, but it cannot by its own act appropriate a part of the pond by scraping it, or setting up stakes, and exclude the public from it." It seems entirely clear if we are to follow the opinions quoted, and it seems clear as we view the subject ourselves, that the acts described in this case cannot be held to constitute an appropriation. The plaintiff entered upon the ice in front of the lands of other persons; it had no icehouse upon the stream where the ice froze; it does not allege that it needed the ice to fill any icehouse which it owned; the ice was not merchantable; the plaintiff had done no work whatever upon it, no cultivating, no scraping, no marking, no ploughing —nothing. To hold that a person may acquire property in free ice, under such circumstances, would be to permit an appropriation of all free ice wherever found by merely sticking stakes around to indicate the field selected. Such a rule would enable a person to appropriate large fields of ice which he might not ever harvest; such a rule would exclude the general public from gathering free ice frequently at times when it might be much needed; such a rule would be wholly repugnant to the idea of a common right and a common ownership in free ice. Such a rule, of course, can never be the law. The order should be affirmed, with costs. All concurred. Order affirmed, with ten dollars costs and disbursements. APP. DIV.- VOL. CLVIII. 10 Third Department, July, 1913. [Vol. 158. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM SHAW, Appellant. 66 Third Department, July 8, 1913. Crime - rape - evidence - lack of corroboration — disclosures by complainant - 'other evidence" within meaning of section 2013 of Penal Law. Evidence upon the prosecution of a defendant for the crime of rape in the second degree, committed upon a girl eight years of age, examined, and held, that a conviction should be reversed because of lack of corroboration of the complainant connecting the defendant with the crime. Disclosures made by a female within a reasonable time after an assault are admissible, but are not "other evidence" within tl ing of section 2013 of the Penal Law. KELLOGG, J., dissented. APPEAL by the defendant, William Shaw, from a judgment of the County Court of Chemung county, rendered against him on the 3d day of June, 1912, convicting him of the crime of rape in the second degree upon the verdict of a jury, and also from an order made on the same day denying the defendant's motion for a new trial. Lewis E. Mosher, for the appellant. Harry L. Bogart, for the respondent. HOWARD, J.: The defendant by the indictment herein is accused of rape in the second degree committed March 24, 1912, upon the person of Carrie Snyder, a girl eight years of age. The child testified that the defendant committed the assault upon her in his garage, which is immediately back of his house in the city of Elmira. It was on Sunday morning just after eleven o'clock. The complainant was walking down a lane, so she says, in the rear of the defendant's garage when the defendant caught her, took her into his garage and perpetrated the act. The lane and the garage are in plain view from several houses. The defendant was twenty-four years old at the date mentioned in the indictment; he is a cripple having one wooden leg; he was a groceryman. The girl also testified that on the twenty-first of February, more than a month previous, the App. Div.] Third Department, July, 1913. defendant had sexual intercourse with her in his store. She did not tell her parents about either of these occurrences until a week after the last one and then not until after long persuasion and some intimation that she might be sent to a boarding school if she persisted in her silence. After the girl had told of the alleged outrage an examination showed that her hymen was slightly torn. Within a few days after the date of the alleged crime she developed gonorrhea. An examination of the defendant after his arrest disclosed no outward symptoms of gonorrhea, although gonococci were obtained from his person. The mother of the child saw the defendant, so she testified, standing near his garage between half-past ten and eleven o'clock on the morning in question. The girl's clothes and hair were noticed to be somewhat disordered when she came to the house soon after the alleged rape. Upon this evidence the defendant was convicted. The testimony of the complainant was contradictory of her previous statements, was unsatisfactory, and was somewhat improbable. It bore those indications, which the testimony of children of that age do so frequently bear, of being, to a considerable extent, the thoughts of others- thoughts developed after repeated conversations and much pressure. Her testimony was, however, sufficient, had it been well corroborated, to support the verdict. But it was not well corroborated; it was barren of corroboration. There must be corroboration of the essential elements of the crime. (People v. Page, 162 N. Y. 272; People v. Farina, 134 App. Div. 110; People v. Green, 103 id. 79; People v. Seaman, 152 id. 495.) The testimony of the mother that she saw the defendant standing near his garage just before the time of the alleged outrage, if it be taken as true, is at most only evidence of opportunity. It in no manner proves the defendant's perpetration of the crime. If he was standing there at all he might have been standing there innocently. The gonorrhea and the ruptured hymen were evidence pointing towards intercourse with somebody, but pointing no more in the direction of this defendant than in any other direction. The evidence that the defendant was at the time of the examination, or had been just previously, suffering with gonorrhea Third Department, July, 1913. [Vol. 158. was weak and doubtful; but if it be assumed that he had the disease on the twenty-fourth day of March, yet no corroborating evidence that he had sexual intercourse with the complainant is furnished. Pregnancy has been held to be only evidence of intercourse; not intercourse with any particular man. (People v. Cole, 134 App. Div. 759.) It must be held, likewise, that, while gonorrhea is some evidence of intercourse, it is not evidence of intercourse with any particular man. Gonorrhea may be contracted without intercourse; therefore, it is of less value, if such be possible, than pregnancy as corroborative evidence. After much urging the girl disclosed the occurrence to her parents. Disclosures made by the female within a reasonable time after the outrage are admissible, but such disclosures are not "other evidence," within the meaning of section 2013 of the Penal Law. They weigh not at all as corroborative evidence. (People v. Seaman, 152 App. Div. 495; People v. Page, 162 N. Y. 272; People v. Green, 103 App. Div. 79.) There was considerable corroborative evidence that this girl had been ravished by someone; but there was no corroborative evidence connecting this defendant with the crime. Strike out the evidence of the complainant and what is left? Nothing, absolutely, implicating this defendant. The corroborative evidence must be not only corroborative of the existence of a crime, but corroborative of the defendant's perpetration of the crime. (People v. O'Farrell, 175 N. Y. 323.) Rape upon a child eight years old is one of the most heinous of crimes, but this is no excuse for punishing the innocent; no excuse for abolishing the rules of evidence. "Due process of law "must be observed as well in trials for rape as in trials for any other offense. There were other errors to which our attention has been called but we have not thought it necessary to refer to them, for this conviction should be reversed because of lack of evidence corroborating the testimony of the female defiled. The judgment of conviction should be reversed and a new trial granted. All concurred, except KELLOGG, J., dissenting. Judgment of conviction reversed and new trial ordered. |