People v. Hicks

• Decision Date: 08 December 1893
• Citation: 56 N.W. 1102,98 Mich. 86
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HICKS.

56 N.W. 1102

98 Mich. 86

PEOPLE v. HICKS.

Supreme Court of Michigan

December 8, 1893

Error to superior court of Grand Rapids; Edwin A. Burlingame Judge.

Benjamin H. Hicks was convicted of assaulting, and taking indecent and improper liberties with, a female child, and brings error. Reversed.

A. A. Ellis, Atty. Gen., and Alfred Wolcott, Pros. Atty., for the People. Myron H. Walker, for appellant.

LONG J.

Respondent was convicted on an information charging him with having made an assault on one Elsie Hoertz, a female child of the age of eight years, and taking indecent and improper liberties with her person. The prosecution was brought under section 9314b 3 How. St., which provides: "If any male person or persons over the age of fourteen years shall assault a female child under the age of fourteen years, and shall take indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape upon such child, he shall be deemed a felonious assaulter, and on conviction thereof shall be punished by imprisonment in the state prison not more than ten years, or by fine not exceeding one thousand dollars, or both such fine and imprisonment in the discretion of the court." The respondent was a man 62 years of age. On the day in question he went to the rear of the house of the child's father, ostensibly to see him; but was told by the mother that her husband was not at home, but would return in about 20 minutes. Back of the house was a shed, in which was the child cracking some nuts. The respondent entered the shed, and what took place there is in dispute between the respondent and the child. It becomes necessary to state the claims of the parties, in view of the charge of the court: The child says that, when he entered the shed, he said, "What pretty legs you have!" She said, "Can you see my legs there?" He then put his hands under her clothes,-as she expresses it, "under my pants," (illustrating where he put his hand by putting her hand to her side.) She told him she would tell her mother, and at once went into the house. The mother of the girl was called as a witness. She stated that her daughter came in, and told her that the man picked up her dress, and reached way up under her clothing, to her private parts. The witness was permitted, under objection, to detail the whole conversation with her daughter. The respondent testified in his own behalf that he found the girl cracking nuts. She was sitting on a block. He bent down on one knee in front of her, and took the hammer, and cracked some. That he got to fooling with her about them,-taking some from her. That she commenced to crack one, and he was going to get it, or reached to get it, when she, sitting straddle of the block, put up her knee to hold him off, and that he took hold of her leg, and moved it away, to get the nut. That he put his hands upon her in no other way. She said she would tell her ma, and went into the house. He left immediately after that, and did not wait to see her father.

The general rule excludes all hearsay testimony, but there are cases when the exclamations and statements of the injured party are made so near upon the point of time when the injury is inflicted that such exclamations and statements are admissible as a part of the res gestae. Such was the case in Lambert v. People, 29 Mich. 71. In cases of rape however, the rule is somewhat extended, and is given by Greenleaf as follows: "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 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 when she is not a witness in a case it is wholly inadmissible." 3 Greenl. Ev. � 213. But exceptional cases have arisen, when rape is charged, where third parties have been allowed to detail conversations with the prosecutrix. In People v. Gage, 62 Mich. 274, 28 N.W. 835, this was allowed. It was not permitted upon the ground that the...