Brooks v. State, 4 Div. 420
| Decision Date | 16 March 1976 |
| Docket Number | 4 Div. 420 |
| Citation | 57 Ala.App. 478,329 So.2d 167 |
| Parties | Otis Dean BROOKS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
P. Richard Hartley, Greenville, for appellant.
William J. Baxley, Atty. Gen., and William A. Davis III, Asst. Atty. Gen., for the State.
Appellant was convicted of an assault with the intent to commit the crime against nature and sentenced to imprisonment in the penitentiary for five years.
The alleged victim was a four-year-old boy. Defendant, twenty or twenty-one years of age at the time of the alleged incident, had been boarding about six months at the home of the boy's mother. On the day of the incident, he left the home driving a truck to take the boy's sixteen-year-old sister, who was married, to her home about three miles away. The boy went with them. In about an hour and a half thereafter, having presumably left the sister at her home, he drove the truck back to the boy's home. Promptly upon arrival, the boy left the truck and, according to the testimony of his mother and another sister, went into the house crying. The mother described him as 'jerking all over' and the sister said he was 'all nervous.' The sister said he had blood 'over his little undershorts,' and the mother testified that he was bloody in 'his little old tail.' The boy was examined by a physician soon thereafter, the same afternoon of the alleged incident. The physician testified that the boy 'was irritated in his rectum.'
Without much, if anything, being said by defendant when he returned in the truck, he gathered up his clothing and left the boarding house and did not return.
According to the testimony of defendant, he was not guilty of any assault upon the boy. He said that as he returned to the place he boarded, the home of the boy, and as he drove into the yard, the boy fell out of a door of the truck, that he didn't see 'what portion of his body he fell on,' that the boy went in the house and soon thereafter his mother came out and told defendant to get his clothes and leave.
Appellant contends that the trial court committed error in admitting some of the statements made by the boy upon entering the house and that the trial court should have granted defendant's motion for a mistrial.
Included in the evidence admitted as to complaints made by the boy upon arrival at his home after the truck ride was testimony of the mother as shown by the following:
'BY MR. LIGHTFOOT: Objection.
'By Mr. Bryan:
After the quoted testimony, the witness testified further, without objection, to substantially the same facts, in somewhat different language, as those shown by the quoted testimony.
Appellant insists that the admission of the testimony constituted a violation of the rule that although complaints by victims of rape and other related crimes are admissible, 'the details or particulars of a complaint cannot be shown by the prosecution in the first instance.' McElroy, Law of Evidence in Alabama, (2d ed.) § 178.01. We agree, but as stated by Judge McElroy at the conclusion of the same subsection:
Just how long after any assault the complaints were made, we have no way of telling, but they were made almost immediately after the boy had left the truck in which he had been riding with defendant and with whom he had been all of the time he had been away from his home. His complaints were made at the first opportunity he had to complain to his mother. They were made while he was still crying and while he was still in pain from whatever injury he had received. Taking into consideration the boy's age, the nature and place of the injury received by him, the time factors and all of the circumstances, we feel that his complaints come well within the category of spontaneous exclamations. We recently had a case in which we came to a different conclusion by reason of a marked difference in the circumstances. We refer to Langford v. State, 54 Ala.App. 659, 312 So.2d 65. Therein we said:
In this case, as distinguished from Langford, spontaniety is the only conclusion that can be reached from all the circumstances upon taking into consideration Judge McElroy's delineation of the circumstances to be considered:
'Obviously the trial court in determining whether the statement was made spontaneously, ought to consider the degree of startlingness of the occurrence; how much time passed after the occurrence but before the statement was made; the effect of intervening events; the nearness, vel non, of the place where the statement was made to the place of the occurrence; the condition of the declarant; the contents of the statement itself; and all other facts relating to whether the declarant was under the stress of a nervous excitement at the time he made the statement.' McElroy, Law of Evidence of Alabama, (2d ed.) Sec....
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Faircloth v. State, 8 Div. 8
...we find that this testimony was properly admitted as a spontaneous exclamation and an exception to the hearsay rule. Brooks v. State, 57 Ala.App. 478, 329 So.2d 167 (1976); Daniell v. State, 37 Ala.App. 559, 73 So.2d 370, cert. denied, 261 Ala. 145, 73 So.2d 375 (1954) (admitted as part of ......
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