The verdict favorable to the prosecution permits the assumption of the following facts as testified to by the complaining witness: In the evening, with her mother’s consent, she went to the railroad station with a boy of sixteen to watch the loading of a circus. It was a short distance from her home. While she stood unattended near the railroad tracks the defendant came to her and told her that her father wanted her. She went with him first toward where the circus was, as the defendant had said her father was there; and then they took a short cut across a field where in a somewhat secluded spot the defendant violated her, desisting only when she continued to complain of the pain. When released she ran the remaining distance to her home, which she reached in a state of hysteria, and throwing her arms around her mother’s neck sobbed and shouted “ Dick Countryman; Dick Countryman; ” and told the story of what had happened. An immediate examination by her mother and another the next morning by a physician showed that she was bleeding and had been ravished.
To warrant the conviction of the defendant her testimony must be supported by other evidence connecting the defendant with the crime. (Penal Law, § 2013; People v. Shaw, 158 App. Div. 146; People v. Murray, 183 id. 468; People v. Page, 162 N. Y. 272; People v. Carey, 223 id. 519.) Such corroboration is here and is furnished by certain facts admitted or established by circumstantial evidence. She was seen running along the path, and her exclamations, testified to by others, are part of the res gestee. The defendant was seen in the vicinity of the crime and admits seeing the girl, and that he was absent from his home at about the time in question. The credibility of his explanation of the circumstances was for the jury. Likewise his silence when after hearing the story of the child’s mother and her accusation of him, his wife charged him with guilt, might properly be regarded as an admission. His conduct in remaining dressed or partially dressed in his home and sleeping on the floor all night after his wife had been to see the little girl, and his flight early the next morning when he knew he was charged with the offense, with false statements as to his destination to those who saw him, and other statements apparently false as to the purpose of his journey, and his absence from home for three weeks thereafter, may be regarded as evidence of his guilt. His explanation of the reason for his departure and absence and his voluntary return are merely facts to be considered as to whether his departure was an admission of guilt or otherwise. The weight and sufficiency of the corroborative evidence is for the jury. (33 Cyc. 1498.)
Shortly after the commission of the crime the child’s mother *810came to the defendant’s home and asked him what he had done to her daughter, and he replied that he had done nothing. His wife after hearing the accusation said she knew he was guilty and she had heard of his doing things like that before. The defendant then remained silent. Silence on the part of a man charged with a crime, where it would be proper for him to speak, may, when not excused or explained, be taken as an implied acquiescence in the truth of the charge. (Kelley v. People, 55 N. Y. 565; People v. Ferrara, 199 id. 414; 16 C. J. 631.) People v. Page (162 N. Y. 272), decided by a divided court, with only two members of the court concurring in the opinion, seems to hold a contrary doctrine, but the case is distinguishable. (See People v. Elston, 186 App. Div. 224.) Of course, his silence may be interpreted as a desire to avoid controversy with his wife, but, on the other hand, it may be interpreted as his being overwhelmed with accusations which were true and that further denial was futile. The interpretation of his conduct was for the jury.
The evidence of defendant’s conduct immediately after he was charged with the crime, constituting part of the res gestee or tending to show his guilt, was admissible (33 Cyc. 1458) and his flight and absence are facts from which the jury may infer guilt. (People v. Ogle, 104 N. Y. 511; People v. Mayes, 66 Cal. 597; 16 C. J. 551.)
The admissions of a defendant are corroborative evidence. The facts I have detailed, if found by the jury to be true, constitute admissions. It is for the jury, not for the court, to determine controverted questions of fact where there are two sets of witnesses telling contradictory stories. (People v. Ferrara, supra.)
But we are told that errors occurred on the trial which furnished ground for reversal. The district attorney called a witness and when it appeared that he was reluctant, hostile or unsatisfactory, he was permitted to cross-examine and impeach him by showing he had been convicted of a crime. This was held error in People v. Minsky (227 N. Y. 94). That was a case where the defendant was indicted for murder in the first degree and convicted of murder in the second degree. A much stricter rule is applied in homicide cases than in the case of other crimes.
In the course of the charge the court said: “ Now if you think a witness impressed you as telling the truth and the whole truth, why, you will give that testimony more weight than you would the testimony of another witness who was attempting to cover up something or evading something, in your opinion. You- have a right to take into consideration the character of each witness upon the stand, their previous reputation. Now you know, from your own experience that men of good character are more apt to tell the *811truth than men of bad character; not that they always do, but they are more apt to.” And again, speaking on the subject of the interest of witnesses, the court said: “ Now if you find that they have an interest and you think that they have evaded or covered up something or they are not telling the truth, then you have a right to cast their testimony aside and decide the case upon the other testimony because 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.”
To this a general exception was taken, and it is claimed the charge was error because the court did not say that the witness must intentionally give false testimony and it must relate to a material point. (Hammelmann v. Bernhardt, 140 App. Div. 42.) That, although not expressly stated, could be implied from what the court said, and I cannot believe that the jury was misled. If error at all it was only technical error and harmless under the circumstances.
In view of the atrocious character of the crime committed on this little girl not fourteen years of age, and the strong evidence of guilt of the accused, and his conviction by a jury who saw and heard the witnesses, I decline to search the record for technical errors or defects, for they should be disregarded where the result seems just and where it appears that the substantial rights of the parties are not affected. (Code Grim. Proc. § 542.)
My vote is for affirmance.
Judgment of conviction and order reversed upon question of law and fact and new trial granted.