People v. Baker

• Decision Date: 03 October 1930
• Docket Number: No. 149.,149.
• Citation: 251 Mich. 322,232 N.W. 381
• Parties: PEOPLE v. BAKER.
• Court: Michigan Supreme Court

251 Mich. 322

232 N.W. 381

PEOPLE

v.BAKER.

No. 149.

Supreme Court of Michigan.

Oct. 3, 1930.

Error to Circuit Court, Genesee County; Fred W. Brennan, Judge.

Jesse Baker was convicted of taking indecent liberties with the person of a female child of the age of seven years, and he brings error.

Affirmed.

Argued before the Entire Bench.

Frank Stipes, of Flint, for respondent.

Charles D. Beagle, Pros. Atty., and Philip Elliott, Asst. Pros. Atty., both of Flint, for the People.

FEAD, J.

Charged with statutory rape and taking indecent liberties with the person of his seven-year old daughter, Dorothy, at his home at Flint at about 6:00 o'clock p. m. on Saturday, June 29, 1929, defendant was convicted of the latter offense. Medical testimony indicated some tampering with the child, but slight, if any, penetration.

Defendant was divorced and had a housekeeper, Mrs. Ruth Schmidt. The latter testified that Dorothy voluntarily told her of the assault about 8:30 to 9:00 o'clock the same evening, and she was permitted to relate the details of the complaint. Mrs. Schmidt went away soon after, leaving Dorothy with a neighbor, Mrs. Ethel Alarie. Mrs. Alarie testified that Dorothy soon told her of the affair and she was allowed to state the details. Mrs. Schmidt further testified that Dorothy told her the story, with additions, the next day, but she was not permitted to tell the details. It developed on her cross-examination that some of her statements as of Saturday were really made to her on Sunday, but no motion to strike was made on that account. Dorothy also testified that she told Mr. Alarie the story on Sunday. She further testified, ‘He (defendant) told me not to tell anyone, to say that he was shaving.’ All of this testimony of complaints was taken under objection, and, except the fact of the first statement to Mrs. Schmidt, is charged as error.

In People v. Corder, 244 Mich. 274, 221 N. W. 309, this court divided evenly upon the admissibility of the details of a complaint of statutory rape.

It was an ancient rule of the common law that the fact of complaint by a victim of rape could be shown in corroboration of the prosecutrix, but the details could not. Wigmore speaks of the exclusion of the details as originally a rule of thumb afterward repudiated by the British courts. 3 Wigmore on Evidence (2d Ed.) § 1760. The basis of the admission of the fact of complaint is that an assaulted woman will tell about it at the first opportunity; failure to make complaint impeaches her claim of assault; so complaint may be shown to corroborate her claim. The American courts sought a logical principle upon which to admit or exclude the details of complaint and their reasoning has produced diverse results. A majority, including this court, adhere to the ancient ruling, upon precedent. Others permit the details of complaint to be shown upon a rather liberal extension of the res gestae doctrine. Others receive the testimony upon the argument that, if the fact of the complaint is competent in corroboration of the prosecutrix, there is no good reason for excluding the rest of the statement. Still others permit the details in corroboration of the prosecutrix if and after her testimony has been impeached. Wigmore on Evidence, vol. 2, § 1134 et seq., vol. 3, § 1760; 2 Ann. Cas. 234, note; 11 Ann. Cas. 99, note.

To the general rule there is, of course, the exception that the whole of a statement which is strictly a part of the res gestae, is admissible under the general rules of evidence. Another exception to the rule excluding the details exists in Wisconsin, Hannon v. State, 70 Wis. 448, 36 N. W. 1, and in this state, People v. Gage, 62 Mich. 271, 28 N. W. 835,4 Am. St. Rep. 854, where the victim is of tender years. The Gage Case has never been overruled by this court. The exception there announced was approved and applied in People v. Glover, 71 Mich. 303, 38 N. W. 874, and People v. Bernor, 115 Mich. 692, 74 N. W. 184. It has been stated and recognized in force, although the cases were distinguished, in People v. Hicks, 98 Mich. 86, 56 N. W. 1102;People v. Duncan, 104 Mich. 460, 62 N. W. 556;People v. Marrs, 125 Mich. 376, 84 N. W. 284. It was quoted as late as People v. Tobin, 230 Mich. 214, 202 N. W. 999, in which, although not expressly discussed, it was not applicable because of the age of the girl. It was also cited as authority in People v. Werner, 221 Mich. 123, 190 N. W. 652.

The admissibility of details of complaint, in the case of very young girls, has been permitted on a liberal extension of the res gestae doctrine, People v. Gage, supra, People v. Brown, 53 Mich. 531, 19 N. W. 172. The rule in this state is that, where the victim is of tender years, the testimony of the details of her complaint may be introduced in corroboration of her evidence, if her statement is shown to have been spontaneous and without indication of manufacture; and delay in making the complaint is excusable so far as it is caused by fear or other equally effective circumstance. An assault made by the father of the victim and his admonition to her not to tell what had happened are as effective to promote delay as threats by a stranger would have been. A child would ordinarily have no sense of outrage at such acts by her own father, and complaining of them would not occur to her. Her telling of the affair would more naturally arise as the relation of an unusual occurrence and might be delayed until something arose to suggest it. The complaint to Mrs....