The defendant, a married man having a wife and three children, was indicted for the crime of rape in the first degree committed upon a girl about fourteen years of age, and was convicted of rape in the second degree.
One evening in June, two years ago, the girl left home with a young man about seventeen years of age to watch the loading of a circus at the railroad, a short distance from her home in the village of Carthage. She left her home about nine or nine-thirty o’clock with the young man and returned alone about ten or ten-thirty o’clock in a nervous and excited condition, claiming that the defendant had defiled her. It is reasonably certain that some one had perpetrated this act upon her, but there is grave doubt that the defendant did it.
The girl tells a strange story. She says that she went with the young man to the railroad, watched the loading for about half an hour and he left her. The defendant, whom she knew by sight only, and had never spoken to, came along and told her that her father was at the circus and wanted to see her; that they went up the street; thence along a path across the lot towards the circus grounds; that when they got near some willows he threw her down and assaulted her. After complaining twice of being hurt he let her up and she ran home and told her mother what had happened. Her mother asked her what had become of the young man she went away with and she told her. The same evening and the next day she also made substantially the same disclosure to others of what had happened.
The boy companion of the girl says that after watching the circus loading for a time his people (who lived a little ways out of town) came along and he rode home with them. He says he did not hear the defendant speak to the girl. The girl says the boy companion had gone home or was not near enough to hear.
The willows were about seventy-five feet from the street and near the path used as a short cut between the two streets, and was being used in going to and from the circus. There were electric lights in the vicinity, but it is claimed that the place where the alleged assault occurred was not lighted. Nothing was said or done by the girl by way or protest or resistance, according to her testimony, except the complaint before stated.
After making these disclosures to her mother, the mother went to the defendant’s home. He was sitting at a table eating. She *807accused him of wronging her daughter, which he denied. Then, according to the testimony of the mother, the defendant’s wife spoke up and told him that he was guilty; that she knew he was guilty; that she heard of him doing things like that before; that the defendant did not say anything; that the defendant’s wife went with the mother to her home, where the girl was, and that she told her the same thing there.
Both the defendant and his wife deny that any such statements were made by the wife, but on the contrary say that the mother of the girl threatened to have the defendant arrested unless he settled. He denied the accusation.
Complaint was made the next day to a magistrate and the warrant issued. The defendant left early the next day and was gone for about three weeks, then returned voluntarily and gave bail.
The defendant denies that he was with the girl at all. He says that he saw her with the young man where they were loading the circus. He says he did not speak to her. He is corroborated by a messenger boy, who says that he saw the girl and her boy companion come from behind the cemetery on the opposite side of the railroad from where they were loading where it was dark; that the defendant walked on toward his home. Aside from the testimony of the girl there is no evidence that defendant was with her at any time during the evening.
I am of opinion that the evidence is insufficient to show that defendant committed the crime. (People v. Page, 162 N. Y. 272; People v. Haischer, 81 App. Div. 559; People v. Kline, 152 id. 438; People v. Carey, 223 N. Y. 519.)
It has long been the law that no conviction can be had for rape or defilement on the testimony of the female defiled, unsupported by other evidence. (Penal Law, § 2013.)
And the corroboration must extend to every material fact essential to constitute a crime. (People v. Page, supra.)
While the supporting evidence need not be positive and direct, it must be sufficient to afford proof of the circumstances legitimately tending to show the existence of the material facts. (People v. Elston, 186 App. Div. 224.)
While the disclosures by the girl to her mother and to others, made soon after the crime was perpetrated, were competent (People v. O’Sullivan, 104 N. Y. 481), they were not “other evidence” in support of her testimony. (People v. Page, supra; People v. Murray, 183 App. Div. 468.)
Nor were the statements claimed to have been made by the wife, nor his silence, of any probative force to establish the guilt of her husband. (People v. Page, supra.) He had already denied the *808accusation. He was not called upon to get into a controversy with his wife. She did not claim to know anything about this matter or his intimacy with other women. Indeed, I think the evidence was improper and prejudicial.
Two other matters deserve attention. As before stated, the prosecution called a witness whose testimony upon cross-examination corroborated the defendant. ■ The witness was sharply cross-examined by the district attorney and was asked whether he had not been convicted of stealing. He said he had. This evidence was received over the objection and exception of defendant. The evident purpose of making this inquiry was to impeach the witness. This the prosecution could not do. (People v. Minsky, 227 N. Y. 94.) The exception was well taken. And for the same reason it was improper to permit the assistant district attorney to testify that the messenger boy had not made certain statements to him tending to contradict his testimony. (Berkowsky v. New York City R. Co., 127 App. Div. 544.)
In the course of his charge the trial judge stated that if any of the witnesses had evaded or covered up something, or they were not telling the truth, then the jury had the right to cast their testimony aside and decide the case upon the other testimony, because, as the judge stated, “if a person tells a falsehood in one thing, he is apt to tell it in another, and you have a right to so decide, if you desire, and you should apply that test to each and every witness in the case.”
This was incorrect. The rule which the judge attempted to apply requires, not only that the testimony be false, but the witness must intentionally give false testimony and it must relate to a material point. (Hammelmann v. Bernhardt, 140 App. Div. 42.) This charge was excepted to by defendant's counsel. That the jury fully appreciated the effect of the charge as made is apparent from an inquiry made by one of them about the testimony of the messenger boy. The juror seems to have thought that the witness had testified incorrectly about a road behind the cemetery. The juror asked whether they ought to disregard the testimony and throw it out if there was no road there. This inquiry was not answered directly, but the testimony was called to their attention, which seems to indicate that the juror had not quite understood the testimony. I think this charge was erroneous and prejudicial.
Other questions are raised, but they require no discussion.
For the reasons stated, the judgment of conviction and order should be reversed upon the law and facts, and a new trial ordered.
All concur, except Davis, J., who dissents in an opinion.