#### The People of the State of New York, Respondent, *v.*Joseph De Nigris, Appellant.

First Department,

July 10, 1913.

Crime—rape — intercourse with female under age — corroboration of complaining witness — circumstantial evidence as to penetration.

Where, upon the prosecution of a defendant for the crime of rape, it was established that the defendant took the complainant, a young girl, to a furnished rooming house and there cohabited with her on two or three successive nights, and the testimony of the complainant as to her age, was corroborated by her stepmother, who had acted as midwife at her birth, and complainant’s testimony as to the repeated commission of the act of intercourse by the defendant under circumstance satisfying the definition of rape was corroborated in every detail, except as to the actual fact of penetration, a judgment convicting the defendant of rape in the second degree should be affirmed.

Corroborating evidence as to the actual fact of penetration may be circumstantial.

Appeal by the defendant, Joseph De Nigris, from a judgment of the Court of General Sessions of the Peace of the county of New York, rendered against him on the 3d day of September, 1912, convicting him of the crime of rape in the second degree.

*Louis A. Cuvillier,*for the appellant.

*Louis Fabricant,*for the respondent.

Scott, J.:

The evidence establishes quite satisfactorily that the defendant took the complaining witness, a young girl, to what is described as a furnished-room house and there cohabited with her on two or three successive nights.

Apart from the defendant’s denials, which are quite unconvincing and failed to impress the jury, there are but two questions involved, *first,*as to complainant’s age, and *second,*as to whether or not there was sufficient corroboration. Upon the first point the evidence was sufficient. Not only did the girl herself testify to the date of her birth, but she was corrobo*799rated by her stepmother, her mother’s sister, who had acted as midwife at her birth.

We consider also that there was sufficient corroboration. The complainant herself testified positively to the repeated commission of the act of intercourse, and on terms which fully satisfied the definition of rape. Her story was corroborated in every detail except that, naturally enough, no third person testified to the actual fact of penetration.

We do not consider that such minute corroboration was requisite. It is well settled that, in a case like the present, the corroborating evidence need not be direct, but may be circumstantial; and this is necessarily the rule, else few convictions could be secured even in flagrant cases. *(People*v. *Kearney,*110 N. Y. 194; *People*v. *Plath,*100 id. 590; *People*v. *Adams,*72 App. Div. 166; *People*v. *Grauer,*12 id. 464.)

The corroborative evidence tended to prove that defendant took a young, unmarried girl to a furnished room, held her out as his wife, and remained there, occupying the room with her for several nights. Such evidence would be quite sufficient to sustain a finding of adultery, if that were the issue; and, as we think, is equally sufficient to corroborate the complainant’s positive statement that the crime of rape was consummated. No more minute corroboration was necessary. The appellant relies upon two cases recently decided in another department, which as it is claimed hold it to be necessary that there must be direct corroborative evidence of the consummated act of intercourse. *(People*v. *Kline,*152 App. Div. 438; *People*v. *Seaman,*Id. 495.) We do not understand that these cases lay down any such stringent rule. It was found in both these cases that there was in effect no corroboration, and it was upon that complete lack that the decisions turned.

The judgment should be affirmed.

Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment affirmed.