(dissenting.) An appeal from an order denying a motion for a new trial on newly-discovered evidence having been dismissed, and the order affirmed, we are brought to the consideration of the appeal from the judgment of conviction in this case. The appellant insists that the evidence fails to establish the commission of the offense charged, because the circumstances attending the transaction as sworn to by the prosecutrix establish her consent, and that there is no corroboration of a forcible ravishing against her will, as sworn to by her. Section 283 of the Penal Code prescribes, -in definite and concise language, the rule of law upon that subject, as follows:
“No conviction can be had, for abduction, compulsory marriage, rape, or defilement, upon the testimony of the female abducted, compelled or defiled, unsupported by other evidence.”
The question raised upon the first point is as to the sufficiency of the evidence in corroboration of the offense charged, in support of the testimony of the prosecutrix. The principal evidence of the *680offense is the testimony of the prosecutrix. She was in her seventeenth year at the time of the alleged offense. From her evidence it appears that on the evening of the alleged assault she started, at the solicitation of the defendant, to ride with him in a two-wheeled vehicle from the house of her grandfather, where she was living, to the residence of defendant, a distance of about three miles; that, passing along the highway, he turned therefrom into a wood road leading into the woods, and drove 87 paces, and then told the prosecutrix to get out, and she did. Defendant did not inform her what he wanted her to get out for, except to turn around. She testifies that he assisted her to get out of the cart, and that after she got out he choked her, threw her down, and that, against all the resistance she was able to make, he ravished her against her will. This was clearly proof enough, if corroborated as required by the provisions of the Code, to constitute the offense charged. If her story is to be believed, she used all the physical power she possessed, and her voice to cry out, in the defense of her chastity. But, as we have seen, her evidence alone, unless corroborated by evidence bearing upon the crime itself, is not sufficient to convict. The learned district attorney insists that such evidence is found in her appearance and conduct at defendant’s, after she arrived there that evening. Mrs. Upright, who was at defendant’s when she came there, swears that prosecutrix’s “hair was ruffled, and she took down her front hair and rolled it up, and took off her shoes and shook the dirt out of them; that she looked very downhearted, and didn’t have anything to say; kept wiping her eyes occasionally, and witness thought she was crying. She didn’t say anything much only when I talked to her.” The evidence shows that she stayed there all night, and she and this witness sat up with a sick lady. It is also insisted that her statement to her father and mother, about nine days after this occurrence, is also a corroboration, as is the wagon track leading into the wood road, which was discovered some days after the occurrence; the finding of a button, which she swears resembles the one she claims defendant tore off of her drawers, at the place at which she claims the offense was committed; and the testimony of the physician who examined her person about 18 days after the alleged occurrence, found the parts in a healthy condition, not inflamed, no hymen present, and red about the remains of thé hymen, tending to show that its rupture was recent, but by no means fixing the time of the same. In a case of this character it is not enough to show adulterous intercourse between the prosecutrix and the accused. The gravahien of the crime is the forcible ravishing by the defendant against the will, and without the consent, expressed or implied, of the prosecutrix; and however reprehensible voluntary intercourse between a married man and this prosecutrix is, and however deserving of condemnation and execration he may be for planning and creating the opportunity for this act, unless it was committed against the will of the prosecutrix, by overcoming, by force and fear, all the physical and mental power of resistance by the prosecutrix, then the crime for which he was convicted is not established, and the *681burden of proving this rests with the people; for where the_ act complained of is capable of two constructions or interpretations, one criminal and the other not, the law will presume the latter until the former is proved.
We have said that the facts sworn to by the prosecutrix as to the actual commission of this crime, if corroborated by evidence, either direct or circumstantial, so as to establish their truth, are sufficient to convict. But are not all of the circumstances relied upon by the prosecution as corroborations consistent with the innocence of the defendant of the crime of rape? Assuming that the tracks of the wagon leading into the wood road, and returning, corroborate the fact that he drove into the woods, that fact in itself is just as consistent with the idea of illicit intercourse with the consent of the prosecutrix as with the motive and design on the part of the defendant to commit a felony by forcibly ravishing the prosecutrix, and more so when we take into account the fact that he was in hear proximity to a traveled public highway, and was within easy hearing distance of the same. By her own testimony she consented, by her failing to object, to his driving into this wood road, although she swears she knew he was driving into the thicket in a byroad and secluded place, and on her arrival at the point where she alleges this offense was committed she voluntarily, on his invitation, got out of the carriage. The people claim that the finding of the button supposed to have been torn or ripped off from her drawers is evidence in corroboration of the statement that she was out of the carriage, and on the ground; but that circumstance would seem slight evidence of force, and in no way. inconsistent with the mutual effort to remove the obstruction which that garment furnished to a voluntary connection. The cloth does not appear to have been torn in removing the button. The button-hole was not torn out, but there was a tear in the drawers a short finger’s length. Prosecutrix, after the alleged occurrence, as she swears, replaced the drawers on her person, placing a pin in the place of the button, and wore them to defendant’s that night, and for some days thereafter, in the same condition; and it is to be observed that the identity of and injuries to these drawers rest solely in the uncorroborated evidence of the prosecutrix. I do not see how, under such circumstances, the condition of that garment is a corroboration of the criminal charge against the defendant. If they had been exhibited to some other person, and their condition examined before they were removed from the prosecutrix, any rents or marks of violence or force on them might furnish some evidence in corroboration; but I find no evidence that any person saw them until they were presented in court. Again, her appearance at the defendant’s that night, as described by Mrs. Upright, is urged as a corroboration. “Her hair was ruffled, and she took down her front hair and rolled it up. She took off her shoes and shook the dirt out.” But it will be observed that the prosecutrix does not, in her testimony, make any claim that the disordered condition of her hair, or the dirt in her shoes, was the result of the alleged assault of the defendant or of their encounter in the woods, so that this testimony fur*682nishes no corroboration of the evidence of the prosecutrix upon that event, and her downhearted appearance and occasional wiping, of her ejes, sworn to by this witness, might have been from a. sense of injury inflicted against her will, or a consciousness of her-own voluntary acts of impropriety. No reason was given by her at that time for her appearance or conduct, nor does she speak of it in her testimony. Under such unexplained circumstances, this-testimony furnishes no corroboration of the prosecutrix’s charge of rape.
It is also claimed by the learned district attorney that the statement of the prosecutrix to her father and mother, of this offense,, several days after the alleged occurrence, is a corroboration. If this evidence was competent, which we doubt, still, after such a lapse of time after the happening of the alleged event, we think it falls far short of a corroboration of the prosecutrix’s testimony as-to the commission of this crime. The theory upon which the declaration of the injured party is received as evidence is that they were made so nearly contemporaneous with the injury that the person making them is deemed to be smarting under the immediate-consequences of the wrong, and has not had time to manufacture a story, but acts solely upon impressions and impulses born of the injury. It can hardly be successfully maintained that declarations of the party charging the injury, seven days after it occurred, and not made in extremis, can be treated as evidence in corroboration-of the evidence of the prosecutrix of the principal offense.
The only remaining evidence to be considered upon this point is that of the doctor. ■ He made an examination of the complainant the 9th, or 10th, or 16th of October, after the alleged occurrence.. He formed an opinion from that examination, and an examination, made by him on the 20th of October, that the hymen had been, ruptured recently, and, while he cannot state the exact time, he-puts it positively within two months. Does this evidence amount to a corroboration that she was forcibly ravished on the 2d of October, 1892? We think not. The same conditions wouldi have been present if she had submitted to voluntary intercourse^. There was no inflammation of the parts, and no evidence of excessive violence, disclosed by his examination. On the whole evidence on the part of the prosecution we And nothing that corroborates the testimony of the prosecutrix that she was forcibly ravished at the time alleged. Such evidence was indispensable, as-we have seen from the provisions of the Code, to a conviction of the-defendant in this case. Upon this point we have not considered the evidence offered by the defense in opposition to this charge,, for the reason that, if a prima facie case had been made out by the prosecution, the conflict raised by the evidence of the defense would have presented a question of fact which would be solely for the-jury, with whose verdict, on such conflict, this court would not interfere on appeal. In People v. Plath, 100 N. Y. 592, 3 N. E. 790,. the court of appeals laid down the rule which must govern in the-construction of section 283 of the Penal Code. In that case, Huger,. C. J., says:
*683“In cases where corroboration is required, there has been some diversity of opinion in the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed, in order to comply with the rule; but it is now conceded to be the general rule that it should tend to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it.”
Tested by this rule, we fail to see that the prosecutrix is corroborated by any evidence tending to prove that she was forcibly ravished by the defendant. Without that evidence, standing upon her testimony alone, however positive the same may be, the law does not allow a conviction of either of the grave and heinous offenses mentioned in section 283 of the Penal Code. If we are right in our conclusion, this conviction, for the reason above stated, must be reversed, and no examination of the other exceptions taken by the appellant need be considered. The conviction must be - reversed, and a new trial ordered before the Ulster county sessions, under the provisions of section 527 of the Code of Criminal Procedure.