her testimony they could find that it was intelligent, straightforward and consistent even under cross-examination. There was nothing in it that justified the inference that she was immoral with any other man, or depraved or unmoral. There was nothing in it that indicated that her accusation of the defendant. was prompted by her desire to shield another, or by hatred or revenge, or that she was the cat's-paw of a blackmailer, or the tool of any one, or that she was the subject of hallucination or delusion. It is true there was no evidence that she had ever made complaint of the crime until some months thereafter, but it must be remembered that she did not testify to any resistance or violence. Force was not an element of this statutory rape, and the omission of complaint in a rape, the going about as if nothing had happened, was "in effect an assertion that nothing violent had been done." (Wigm. Ev., § 1135.) The omission of complaint was entirely consistent with the method of the crime persuasion, not force- and with her testimony that she told no one of the act until after her child was born. testifies that she did not know that she was pregnant not physically incredible. (Taylor Med. Jur. [7th Am. ed.] 495 et seq.; Witthaus & Becker, Med. Jur. vol. 2, pp. 362, 363.) She testifies that when after three months her menses ceased, she went with her mother to a physician who informed her that such cessation was not unusual in one so young. She a fact The jury could have inferred that one of her age did not realize the character of the act, or its possible consequences, but that she supposed that her secret was safe with her, and that she could obey the repeated injunctions of the defendant that she should conceal his conduct with her. And the jury also had before them her testimony that after the birth of her child she had at first declared that the defendant was not its father; that after she was taken to Monticello by the probation authorities she had repeated that statement; and that only after she had been at Monticello two days did she make the formal written accusation of the defendant. But the jury could consider that she had never named any other person, but had said that the father was a man unknown, and that it was not unnatural that she should attempt to shield the defendant in response to the repeated injunctions of one who was not a mere acquaintance or an advising friend, but her life-long benefactor who had constituted her the principal beneficiary of his will, as she well knew. Such testimony went to the question of her credibilty. I come now to consider the supporting evidence. The material facts are defendant's intercourse with the girl, not his wife, and then under the age of eighteen years. (Penal Law, § 2010.) Her sexual intercourse with some male on January 27, 1917, is supported by the testimony of the attendant physician as to the birth of her child on October 18, 1917, and by the period of gestation. (People v. Farina, 134 App. Div. 110, and cases cited; Rex v. Luffe, 8 East, 202; Chamberlayne Modern Law of Ev., § 770; Elliott Ev., § 68.) Her testimony that she was not the wife of the defendant and that at the time of the alleged crime she was under eighteen years of age is supported even by the testimony of the defendant himself. Her testimony that the defendant was the man is supported by the testimony of her father and mother as to an interview between them and the defendant. But the defendant contends that this testimony last mentioned was not evidence, and for that reason I consider the point at some length. Rosalie had kept her pregnancy secret even from her parents. After her child was born, in October, 1917, she said that the defendant was not its father. When she was taken in November, 1917, to Monticello by the probation authorities, she at first repeated that statement, but after two days she made a formal statement in writing in accusation of the defendant. This accusation was made first on November 26, 1917. The father and mother, who were of a walk in life lower than that of the defendant, but who had been on intimate terms with him for years, went to the defendant's office on November 28, 1917. The mother's version of the interview is: "I said, 'Mr. Elston, Rosalie says you are the father of her child,' and he 6 6 says She says I am not the father of her child.' And then Mr. Jansen said that she told him up to Monticello. He says 'You are the father of the child. What are you going to do about it?' And he said Let me marry the girl.' Q. What, if anything, else was said? A. And Mr. Jansen said No,' and told me to come on. Q. And then you left after he had asked permission to marry her? A. Yes." The father's testimony is: "She (i. e., his wife) say, Rosalie say you are the father of her baby, of her child,' and he says She don't say so.' And then he say 'Please let me marry her,' and I say 'No.' And so he say that to me three times, Please let me marry her then it will all be over.' Then I say 'No.' I say 'She's bad enough off now without marrying her to a man sixty-three or four years old '— the kid is only fourteen, and I pushed my wife out of the door and we went." 6 It is well settled that "the acts and conduct of a party at or about the time when he is charged to have committed a crime, are always received as evidence of a guilty mind, and while in weighing such evidence ordinary caution is required, such inferences are to be drawn from them as experience indicates is warranted." (Greenfield v. People, 85 N. Y. 75.) In People v. Conrow (200 N. Y. 356, 25 N. Y. Crim. 324) the court say, per CHASE, J.:" Declarations or statements made in the presence of a party are not received as evidence in themselves but for the purpose of ascertaining the reply the party to be affected makes to them. They are only competent when the person affected hears and fully comprehends the effect of the words spoken, and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent. (People v. Kennedy, 164 N. Y. 456, 15 N. Y. Crim. 241; People v. Smith, 172 N. Y. 210, 17 N. Y. Crim. 39; People v. Cascone, 185 N. Y. 317, 20 N. Y. Crim. 175.) " (See, too, Elliott Ev., § 2723; People v. Ferrara, 199 N. Y. 414; Donnelly v. State, 26 N. J. Law, 601, 613; Commonwealth v. Trefethen, 157 Mass. 180, 198.) The defendant at this interview did not remain silent or refuse to answer. He did not deny the accusation, but he responded to it, avowedly made upon the authority of Rosalie, by the denial of that authority" She (Rosalie) says I am not the father of her child" - evidently referring to Rosalie's original exculpation of him. But when the father informed. him that Rosalie had accused him at Monticello, and of course at a later time than that of his exculpation, and but two days before the interview, with the inquiry as to what he would do about it, defendant said, "Let me marry the girl," and not only this but added, "then it will all be over." He made no denial of the accusation at any time. Was there not in the reply both to the accusation and to the inquiry as to what he was going to do about it, some evidence that might indicate his guilt? Could not the jury infer that the offer to marry the girl, not at the outset when he naturally could rely upon her exculpation, but only after he was informed of her accusation, was made because he was guilty? Why should he declare that if he married the girl, "then it will all be over," if he was not the guilty man? It might be argued that even if the defendant was innocent he could state that it would all be over if he then married the girl, meaning thereby only all that marriage with a woman under such circumstances could accomplish — make her" an honest woman" in the eyes of the world, give her and her child a protector and afford to them a decent future. But did not the words permit a different inference and one that more satisfies those words? If he was the father of the child, they indicated the readiness to make the highest reparation - possible. Again, if the defendant were guilty, the words might signify that it would be "all over" so far as anything would be done with respect to the defendant. It does not appear that in the two days that intervened the accusation at Monticello and the interview any legal proceedings had been decided upon. But the offense was a crime, it had been made known at Monticello, the defendant was a lawyer and he must have realized that legal proceedings of some kind, criminal or civil, would naturally follow. If he became the husband of the girl, he was legally safe from a charge of seduction. (People ex rel. Scharff v. Frost, 198 N. Y. 112.) He might have the strongest reason to believe that he would not be punished criminally, and that no civil proceeding could or would be instituted. The learned and able counsel for the defendant relies upon People v. Page (162 N. Y. 274, 14 N. Y. Crim. 513). In Page's case the woman with whom the complainant had remained for a few days after the alleged rape testified that she (the witness) told the defendant that the complainant “ claimed he had committed the crime of rape upon her," and defendant did not deny the story. The court states the question: "A man is informed by a third person that a woman is circulating a story that he had committed rape upon her. He does not take the trouble to deny the story, and, according to the ruling in this case, his omission in that regard is evidence against him to prove that he is guilty of the crime charged." The proposition of the court was that it would be an anomaly that when the law permitted the defendant to stand mute in open court without prejudice, there was a penalty if he did not "deny neighborhood gossip." Two of the members of the court concurred in the opinion, two concurred in the result, one dissented and one did not vote. Professor Wigmore thinks that the dicision is "unsound." (Note to § 1072 in Wigmore on Evidence, vol. 2, p. 1256.) I would not go to that extent. If the decision be strictly limited to the facts in that case, it may be discriminated |