Kenney v. State
| Decision Date | 02 December 1903 |
| Citation | 79 S.W. 817 |
| Parties | KENNEY v. STATE.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Anderson County; Jno. Gooch Young, Judge.
George Kenney was convicted of rape, and appeals. Affirmed.
S. A. McMeans and N. B. Morris, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of rape, and his punishment assessed at death; hence this appeal.
Appellant assigns as error the action of the court permitting Mrs. Hawkins, the mother of the alleged injured party, to testify to the declarations of the child concerning the alleged injury. It was shown that the child was 3½ years old, and not of sufficient intelligence to testify as a witness in the case. The bill does not disclose at what particular time the alleged rape occurred, with reference to the statement or declarations of the child. It states: Appellant objected to this testimony on the ground that the same was hearsay, and did not appear to be res gestæ, and for the further reason that the child making the statements was not a competent witness, and they were not such statements as could bind defendant. The court overruled said objections and admitted the testimony, and defendant excepted. A bill of this character, to be complete, in order to make time an element to reject the testimony, should show that, as to the actual rape, the time of the declaration was so far removed or remote therefrom as to exclude the idea that it was res gestæ Here the child was absent from the presence of the mother 25 or 30 minutes, but it is not shown that the rape alleged was committed immediately after the child left its mother. For aught that appears, the assault complained of had just been committed, and the child released by appellant, when she appeared before her mother and made said declarations. So that, so far as the time is concerned, while it was not exactly contemporaneous with the main fact (i. e., the outrage), yet it was so proximate to that event, and at least the first portion of the declaration apparently so spontaneous, as to make it come within the rule of res gestæ, as laid down by this court. We are aware that our authorities on this subject show we have made a departure from the common law, and from the rule adopted in a number of states, which requires the declaration to be exactly contemporaneous with the main fact in order to authorize its introduction as res gestæ. As was said by this court in Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720, which has been followed: "In order to constitute declarations a part of the res gestæ, it is not necessary that they were precisely coincident in point of time with the principal fact; but, if they spring out of the principal fact, were voluntary and spontaneous, and made at a time so near as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence." In that case the statements received in evidence as res gestæ were made from a half hour to an hour after the principal transaction. In Fulcher's Case, 28 Tex. App. 465, 13 S. W. 750, a declaration was admitted which was made 15 minutes after the shooting. And see Stagner v. State, 9 Tex. App. 440; Lindsey v. State, 35 Tex. Cr. R. 164, 32 S. W. 768; Ingram v. State (Tex. Cr. App.) 43 S. W. 518; Craig v. State, 30 Tex. App. 619, 18 S. W. 297; Freeman v. State, 40 Tex. Cr. R. 545, 46 S. W. 641, 51 S. W. 230. Under these authorities, as stated above, the evidence complained of comes within the rule of res gestæ
However, appellant asserts another proposition, which is of vital importance in the consideration of the admissibility of this testimony. He insists that the declarant was a child only 3½ years old, and, thus being incompetent to give evidence as a witness, the declarations of said child could not be introduced as evidence against appellant. This exact question was before this court in Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882; and it was there held that, wherever the testimony of an infant is a part of the res gestæ, it is introduceable, notwithstanding the fact that the witness was incompetent to take an oath. But it is urged that this case is not supported by the authorities cited, and that it is in direct conflict with Smith v. State, 41 Tex. 352. An examination of that case discloses that the child was in her fourth year at the time of the offense, but at the time of the trial was in her seventh year. She was held by the court below to be too young to testify; but her parents were permitted to prove her statements made to them immediately after the occurrences, charging defendant with the act, and giving some of its details. While it is not stated that the testimony was admitted as res gestæ, yet we may concede, from the decision, that the court was prepared to hold that any statement made by such a child, though a part of the res gestæ, would not be admissible in evidence if the child could not be sworn, as the court says "that, where a child is unfit to be sworn, it follows as a necessary consequence that any account of the transaction which it may have given to others ought not to be admitted," and then cites a number of authorities in support of the proposition. The authorities cited are common-law authorities, and they appear to support, in general terms, the doctrine announced. And to the same effect, see Best on Ev. vol. 1, §§ 151 to 158, inclusive; Russell on Crimes, vol. 1, p. 931; Jones on Ev. vol. 2, § 336; Underhill on Ev. § 414. These authors cite Rex v. Nicholas, 2 Car. & Kirwin, 246; Rex v. Williams, 7 Car. & Pay. 320; Rex v. Brazier, 1 Leach, C. L. 199; 1 East, P. C. 443. Mr. Best says: "Through all the decisions, two principles are found working their way: First, that, if the testimony of an infant of tender years is to be received at all, it ought to be received from the infant itself, and not through a statement presented obstetricante manu; second, that the witness is an infant of tender years is no ground for relaxing the rule." However, we do not find in any of the decisions referred to, supporting the doctrine, where the question of res gestæ was presented, but the cases seem to be predicated on the proposition that the statement of an infant not competent to be a witness cannot be proven. As was said in Rex v. Nicholas, supra, "A child's statement, who was not capable of taking an oath, is not receivable on the ground that she was not a competent witness." In that case the child appeared to be six years of age, but the facts show that the testimony offered was a statement made two days after the alleged abuse, which clearly shows the case is not authority upon the question of res gestæ. The distinction between res gestæ and statements made subsequent to the transaction, and no part thereof, is manifest. The one is introduceable as a part of the transaction itself, while the other is introduceable as a subsequent statement made by the alleged injured party recently thereafter, and is used to corroborate and support the evidence of the alleged injured party. Nowhere is this distinction more clearly drawn than in Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892, 37 Am. St. Rep 794. So we take it that the English textbooks and cases, even if they were authority for us upon this question, are not decisive of the issue as here presented, especially as we must bear in mind that in England res gestæ is confined to what occurs contemporaneously with the main transaction; that is, exactly coincident therewith. See Wharton on Ev. §§ 262 to 264, inc.; Underhill, Cr. Ev. §§ 95 to 98, inc. Accordingly the authorities say the statement of an incompetent witness will not be received. We do not believe that any English case can be found where a declaration which was made immediately coincident with the main transaction, and was unquestionably a part of the res gestæ, was rejected. On the contrary, we do find in the text (3 Russell on Crimes, p. 248) that it had been considered, allowable on an indictment for an assault on an infant five years old with intent to ravish her, to give evidence of the child having complained of the injury recently thereafter; citing East's Pleas to the Crown, c. 10, § 5, p. 444.
We are therefore driven to the reason of the rule, and to our own authorities on analogous questions. We are aware that the general doctrine is that dying declarations of a witness who is incompetent as a witness, from infancy or other cause, cannot be proven. And the principle announced by these authorities has been cited in support of the view that res gestæ coming from an incompetent witness cannot be shown. But it should not be forgotten that the principle with regard to dying declarations and their admission is predicated on the idea that the declarant makes the statement under the sense of approaching death, and with the recognition of the obligations of an oath. In other words, the solemnity of the situation is considered to be, so far as the declarant is concerned, tantamount to the oath. As was said in ...
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