People v. Gage

• Decision Date: 01 July 1886
• Court: Michigan Supreme Court
• Parties: PEOPLE v. GAGE.

28 N.W. 835

62 Mich. 271

PEOPLE v. GAGE.

Supreme Court of Michigan

July 1, 1886

Error to Oakland.

The Attorney General, for the People.

Thos J. Davis, for defendant and appellant.

CHAMPLIN J.

The respondent was convicted of an assault with intent to commit rape upon a female of the age of 10 years or more. The evidence showed that the little girl was 10 years and 4 months old at the time the offense was committed.

There was no error in the ruling of the court upon the qualification of the juror John P. Terry. His examination did not show him to be disqualified, within the statute and previous rulings of this court.

The crime is charged to have been committed on the twenty-first day of May, 1884; and upon the trial the mother of the girl was permitted to testify to what her girl told her relative to the offense, in the month of August following. This is the main error alleged. It appeared from the testimony of the girl that the respondent, at the time he committed the alleged offense, told the girl that she must not tell her father about it; that, if she did, he would give her an awful whipping; and that she did not tell her parents of it for fear her father would whip her. It appears, also that, a few days after the transaction, she told of it to a cousin, and that her parents only found it out in August, a short time before respondent was arrested, and thereupon her mother questioned her in regard to it; and this conversation was received in evidence, against the respondent's objection, in which the mother was permitted to detail all the circumstances of the transaction constituting the alleged offense.

Prof Greenleaf says: "Though the prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence except when elicited on cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination the practice has been merely to ask her whether she made complaint that such an outrage had been perpetrated upon her, and to receive only a simple "yes" or "no." Indeed, the complaint constitutes no part of the res gestae,--it is only a fact corroborative of the testimony of the complainant,--and where she is not a witness in the case, it is wholly inadmissible." 3 Greenl.Ev � 213.

The rule stated above is supported by abundant authority, (1 Phil.Ev. 233; Baccio v. People, 41 N.Y. 265; 1 Russ.Cr. 689; Roscoe, Crim.Ev. 26, note 1; Rex v. Clarke 2 Starkie, 241; Reg. v. Walker, 2 Moody & R. 212; Reg. v. Meyson, 9 Car. & P. 418; People v. McGee, 1 Denio, 19; Phillips v. State, 9 Humph. 246; Pefferling v. State, 40 Tex. 486; People v. Hulse, 3 Hill, 316;) but we think the rule not an inflexible one, and ought to yield where the particular circumstances of the case make it inapplicable; as, where the party outraged is of tender years, and her silence is the direct consequence of fears of chastisement induced by threats of the perpetrator of the wrong. The reason of the rule admitting the fact that complaint was made, and excluding the complaint itself, is founded, aside from its being hearsay, by those courts which do not treat it as part of the res gestae, upon the danger of allowing a designing female to corroborate her testimony by statements made by herself to third persons, and the difficulty of disproving the principal fact by the accused. But some courts hold that the evidence that complaint was made is not received merely as corroborative of the statement of the prosecutrix, but as part of the res gestae, where they are made immediately after the outrage complained of, and this is...