Brown v. United States

• Decision Date: 03 December 1945
• Docket Number: No. 8936.,8936.
• Citation: 152 F.2d 138
• Parties: BROWN v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

152 F.2d 138 (1945)

BROWN v.UNITED STATES.

No. 8936.

United States Court of Appeals District of Columbia.

Argued October 15, 1945.

Decided December 3, 1945.

Mr. Saul G. Lichtenberg, of Washington, D. C., for appellant.

Mr. John P. Burke, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Charles B. Murray and Joseph F. Lawless, Assistant United States Attorneys, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, ALBERT LEE STEPHENS, Circuit Judge sitting by designation, and EDGERTON, Associate Justice.

EDGERTON, Associate Justice.

This appeal is from a judgment of the Municipal Court of Appeals¹ which affirmed a conviction of assault upon a girl three years and eight months old.Appellant was an assistant janitor in a day school which she attended.On the afternoon of the alleged assault she was put in a nursery room alone.Appellant was somewhere in the building.Several persons looked into the room at different times and saw nothing unusual.A teacher took the child from the room at 4:15 p. m. and watched her play with other children until 6:15.During this time she made no complaint and mentioned nothing that had happened in the nursery.At 6:15 her mother called for her and took her home.While she was having dinner she told of seeing rabbits and of other events of the day.At about 7:15 she told of appellant's alleged act and said that it occurred in the afternoon.It was of an indecent character.The child "did not complain" to her mother and was not physically marked or injured.

The trial judge found, after talking with the child, that she was incompetent to testify.But he permitted her mother, over appellant's objection, to repeat the child's story.Without objection, police officers told the jury what the child had said a day or two after the alleged assault and one of the officers expressed a belief as to what appellant had done.As the Municipal Court of Appeals said, the officers' testimony was plainly inadmissible.The admission of such testimony in so serious a case might be enough to require reversal despite the fact that counsel did not object.But that question is unimportant because we think the mother's report of the child's story, to which counsel did object, should have been excluded.

This report was of course hearsay.It was not within the principle of spontaneous exclamations or of any other exception to the hearsay rule."Under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.Since this utterance is made under the immediate and uncontrolled domination of the senses * * * the utterance may be taken as particularly trustworthy * * *."²Reports of exclamations and statements spontaneously made under the influence of shock are therefore admitted in evidence as proof of the facts which they assert.But if the Municipal Court of Appeals was right in its belief that the child was "too immature * * * to suffer mental disturbance from acts of the described character",³ the principle can have no application here.Even if the court was mistaken in thinking that the child's immaturity precluded possible mental disturbance, there is no evidence, in the child's story or otherwise, that she actually suffered mental disturbance.And it is plain that even if she did so at the time of the alleged assault she had ceased to do so during the peaceful hours which elapsed between that time and the time when she included a story of an assault in an account of the day's events.There is no suggestion to the contrary.

The Municipal Court of Appeals apparently thought that the doctrine of spontaneous exclamations should be extended to cover a very young child's completely calm narrative.We cannot agree.Very young children often fail to distinguish between subjective and objective experiences, between events which they dream or imagine and events which happen in the external world.They often fail to realize the importance which adults attach to this distinction and the consequences which innocent failure to draw it may produce.They know little or nothing of the effects which their recitals may have upon the liberty and reputation of others.This child is not shown to have been unusually advanced.On the contrary, the trial court found that she was incompetent to testify.It follows from all this that her story was not more but less trustworthy than it would have been if she had been an adult.If she had been an adult it would not have been received, as it was received, in the reflected form of hearsay.The several exceptions to the hearsay rule are due either to the special trustworthiness of a special sort of hearsay or to a necessity for admitting it because equivalent direct testimony is lacking.⁴Neither consideration applies here.If the child was worthy of belief she was available as a witness.We do not minimize the importance of a young chid's spontaneous exclamations.They may be much more valuable than her testimony on the witness stand.We are dealing with a young child's calm narrative.It is a curious paradox which would exclude such a narrative when the child herself is offered as a witness and would admit it when it has all the added infirmities of hearsay.

Our conclusion agrees with that of other courts.⁵...