Creswell v. State

• Decision Date: 05 March 1940
• Docket Number: 27852.
• Citation: 7 S.E.2d 788,61 Ga.App. 828
• Parties: CRESWELL v. STATE.
• Court: Georgia Court of Appeals

7 S.E.2d 788

61 Ga.App. 828

CRESWELL v. STATE.

No. 27852.

Court of Appeals of Georgia, Division No. 1.

March 5, 1940

R. Carter Pittman and Jack B. Ray, both of Dalton, for plaintiff in error.

J. H. Paschall, Sol. Gen., of Calhoun, for defendant in error.

BROYLES, Chief Judge.

1. On a trial for assault with intent to rape, the particulars of a complaint made by the female are not admissible in behalf of the prosecution, in the first instance, unless they are a part of the res gestae. The true rule is, to admit the evidence of the fact of the complaint in such cases, and in no case to admit more. Stephen v. State, 11 Ga. 225 (8); Lowe v. State, 97 Ga. 792 (1), 25 S.E. 676; Huey v. State, 7 Ga.App. 398 (1), 66 S.E. 1023.

2. In the instant case, the defendant was indicted for an assault with intent to rape; and, upon the trial, the court, over the defendant's objections, allowed the mother of the alleged victim to testify, on her direct examination, that her daughter, on the afternoon following the night of the alleged offense, "told me what happened that night. She told me that Virgil Creswell [the accused] tried to rape her. She told me where it happened, she said in a hollow yonderside of Mr. Fain's house. She told me that there was nobody there except him and her on the bus. That is what she told me. That was the next day after she claimed this happened the night before." The evidence shows that the daughter's complaint was made some 15 or 20 hours after the commission of the alleged offense, and no reason appears why she remained silent for so long a time. Therefore, her complaint to her mother was not a part of the res gestae; and, under the ruling made in the preceding headnote, the court erred in admitting the testimony of the mother, which set forth not only the fact of the complaint, but also certain particulars of the alleged offense as stated to her by her daughter. While the defendant was convicted only of an assault and battery, the principle of the above-cited decisions is here applicable, for this court cannot hold as a matter of law that the defendant would have been convicted of that offense if said illegal evidence had not been admitted. The judgment is reversed, solely because of the admission of that evidence.

Judgment reversed.

MacINTYRE and GUERRY, JJ., concur.