from the case at bar. The court in Page's Case (supra) was avowedly dealing with the omission of the defendant to "deny neighborhood gossip" detailed to him, and held that such omission did not afford evidence of guilty silence. The distinction between Page's case and the case at bar is that in the present case the parents of the girl, her natural protectors, told defendant that their child had made a direct accusation, and asked him what he was going to do about it. And the defendant did not remain silent, or omit or refuse to answer, but took part in the conversation, first by declaration that the girl herself had exonerated him, and then, when informed that there was proof by the accusation from the girl, by making offer to marry her, with the statement that then it would all be over. Here was not mere omission to deny "neighborhood gossip," but participation in the interview, statements and answers under a charge made by the father and mother of the young girl under circumstances of gravity less only to formal accusation of the authorities of the law. Even silence under such circumstances is not the silence considered in Page's case. (See, too, People v. Smith, 172 N. Y. 233, 17 N. Y. Crim. 39.) Indeed, there is strong authority under such conditions that the mere omission to deny affords some circumstantial evidence. (Chamberlayne Modern Law of Ev., § 1395; Commonwealth v. Coughlin, 182 Mass. 558, 565; Hickey v. Campion, 6 Ir. Rep. C. L. 557; Bessela v. Stern, L. R. 2 C. P. Div. 265, 271; Weidemann v. Walpole, L. R. [1891] 2 Q. B. 534, 539.) In Commonwealth v. Trefethen (157 Mass. 198) the court say: "It is obvious that, when a defendant has replied to a statement made to him, which, if true, tends directly or indirectly to show that he is guilty of the crime charged, and the reply is not an unequivocal affirmation or denial of the truth of the statement, difficult questions must often arise in determining whether the reply has any such tendency to show a consciousness of guilt on his part as will warrant its admission as evidence against him.

Perhaps a certain discretion must be left to the presiding judge or judges in view of all the circumstances of the case."

When the jury came to consider the interview of November twenty-eighth, they had the testimony of the denfendant that it had taken place, and that the parents' version of their words was substantially correct. Thus they had before them words of direct accusation of the defendant, and an inquiry as to the defendant's intentions, and they had the omission of the defendant to testify that he then denied any sexual relations with the girl, his testimony that at least marriage was mentioned, and the circumstance that his version of the interview did not involve a direct denial of his fatherhood, although, of course, it was implied in his statement that if he was the father he would marry her, not followed by any promise that he would do so.

Defendant's denial of the sexual intercourse was not supported save as he established his alibi.

As to the alibi, he testifies that he had to pay his taxes on Monday or Tuesday, January twenty-ninth or thirtieth, and that he told Mr. Edgar that he had to go to his farm to collect some more money in order to pay his taxes Monday or Tuesday; that he would leave his office open, and that he asked Mr. Edgar to look after it. Defendant testifies that he went to the farm to see if he could get something, as his tenant, Mrs. Leach, owed him $100 for hay and rental; that he went to Bloomingburg to his upper farm to collect money; that the train left at ten-forty-seven A. M., and he came home a little after four o'clock. He testifies that he went to see Mrs. Leach, and when asked whether he met anyone else" he answers that he met Mr. Matthew Davidson at the station and had quite a conversation with him. Mrs. Leach was not called as a witness, although the defendant testified to her present whereabouts, nor was her absence accounted for. The same is true of Mr. Davidson so far as the omission to call him or to ex

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plain his absence. Neither the tax bills nor any check or receipt is produced, although the defendant did attempt to read in evidence a stub in his check book of January thirtieth. Mr. Edgar testifies that he had an office on the side of the hall opposite to the office of the defendant, with a stairway coming up between them, and he details the conversation with the defendant as to his proposed absence on January twenty-seventh. He testifies that it must have been the twenty-seventh, as the taxes had to be paid. He "thought" - he was "positive that was the day. Mr. Edgar cannot state positively when defendant left defendant's office, but it was some time between nine and ten o'clock a. m. The witness did not see the defendant again on that day, although the witness remained in his office until "probably half-past five or six o'clock." And he testifies that defendant was not in defendant's office during any portion of the afternoon, and that he "didn't see anything" of the complaining witness on that day. On cross-examination he says that he did not stay in defendant's office at all on that day, the door was open part of the time, "passing in and out," and that the only way he could see into defendant's office was by going out into the hall. Yet the defendant himself testifies that he was in his office up to ten A. M., that the train left Bloomingburg about four P. M., and states that he must have been in his office on that day "by half-past four or a quarter to five, anyway, in the afternoon" for the balance of the day. The prosecutor was not asked the time of the occurrence of January twenty-seventh. Thus, even if defendant's story of the alibi was credited, he, according to his own story, was in his office up to ten A. M. and after four-thirty P. M. or four-forty-five P. M. for "the balance of the day."

Under the plea of inpotency the defendant testified that he was born in 1854, had been impotent since March, 1916; that his vital powers began to decline rapidly when he was fiftyseven years old, and continued in this course until an illness in

June and July, 1915; that an illness that came in March, 1916, left him entirely impotent; that some one sent him circulars, whereupon he wrote to different houses and to a doctor (naming him) of Fort Wayne, Ind., recommended as a specialist on impotency, who gave him a treatment. a treatment. He attempted to introduce a letter from that physician. Defendant testified that he had no vital power, no "erection power." On cross-examination he testified that when his wife who afterwards divorced him was "dissatisfied," a doctor (naming him) of Newark, N. J., who examined her, told her that the fault was not hers; that he had not been examined since that time; that his own. physician, Dr. Douglass of Middletown, never treated him for impotence and that he had never called that physician's attention to it that up to 1916 he was "at least partially potent," and that the district attorney might have his own interpretation to the question, that he had some erective power but not as he would like. He testifies that he had no power "except in the morning." The witness did not "propose " to answer the question whether he had ever tried to perform the sexual act, and stated that his knowledge of non-erective power came from the fact that he had no erections in the afternoon or night that came of themselves, that he never had treatment from any reputable physician in his county, as he wished to conceal his weakness, but that he himself endeavored to correct it as he desired full manhood, as would any man. His testimony at least indicates an earnest desire on the part of an unmarried man of advanced years, not for restoration, but invigoration.

If the defendant had been innocent of sexual relations with the girl, it would seem natural that after the birth of her child the defendant, who had bestowed upon her almost the attentions of a parent, who had been for years in supervision of her daily living, who had made her the beneficiary of his will, who had been the intimate friend and trusted adviser of her parents, would have shown sorrow over her plight, or, being also a

lawyer, might have offered advise or have shown some interest or activity in hunting down the wrongdoer. So far as the record shows, he did nothing, he said nothing. Even his own testimony is bare of a statement made at any time, of sorrow or sympathy for the girl or her parents, much less of counsel or advice. It could be asked whether the mere misfortune of this girl could have changed the ardent affection of this old man, if innocent of any improper relations with the girl, into apparent absolute indifference. Such constant aloofness can hardly be explained as that of an innocent man unjustly accused. If any one had suggested he was the father of the child, the evidence is that the girl herself had declared at first he was not, and did not accuse him until some weeks after the birth of her child. As BARTLETT, J., says for the court in People v. Poulin (207 N. Y. 78): The case resolved itself into a question of credibility, and there is nothing in the record to indicate that the jury passed upon that question incorrectly. The fact that a jury in a criminal case has chosen to believe one set of witnesses rather than another set, upon an issue where the conflict between them is irreconcilable, affords no ground in and of itself for interfering with the verdict. (See People v. Ferrara, 199 N. Y. 414, 25 N. Y. Crim. 121.) To justify a reversal on the facts under such circumstances, the appellate court must be able to detect some reason why the version which has been adopted by the jury should have been rejected. We can find no such reason here.”

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I advise that the judgment of conviction of the County Court of Orange county be affirmed.

MILLS, RICH, PUTNAM and KELLY, JJ., concurred.

Judgment of conviction of the County Court of Orange county affirmed.