Smith, In Interest of, No. 21598

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HARWELL; LEWIS
• Citation: 277 S.C. 187,284 S.E.2d 586
• Parties: In the Interest of Jessie SMITH, Appellant.
• Docket Number: No. 21598
• Decision Date: 23 November 1981

Page 586

284 S.E.2d 586 277 S.C. 187 In the Interest of Jessie SMITH, Appellant. No. 21598. Supreme Court of South Carolina. Nov. 23, 1981.

Page 587

[277 S.C. 188] Appellate Defender John L. Sweeny and Asst. Appellate Defender Kathy D. Lindsay, of S. C. Commission of Appellate Defense, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Lindy P. Funkhouser, Martha L. McElveen and Nan L. Black, Columbia, and Asst. Sol. Cliff Welsh, Lexington, for respondent.

HARWELL, Justice:

Appellant Jessie Smith, a minor, was charged with criminal sexual conduct in the first degree on a three (3) year old child. He was found delinquent and was committed to the custody of the Department of Youth Services. Appellant alleges the Family Court erred in admitting certain testimony of the victim's mother. We disagree and affirm the Family Court's decision.

On the day in question, the young victim, who had been playing outside, ran to her mother crying and disheveled. The young girl then described to her mother the actions of the appellant. At trial, the mother was allowed to testify to what her daughter had said immediately after the incident. Although present at trial, the young victim did not testify. Appellant contends that the statement was hearsay and therefore improperly admitted. We disagree and find the testimony admissible under the res gestae exception.

Accusatory utterances are admissible as part of the res gestae when they spring spontaneously and instinctively from the stress of pain or excitement and are made soon enough after the act to preclude deliberation. In [277 S.C. 189] determining whether the statements are within the res gestae exception, the trial court is vested with wide discretion. State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978); Marshall v. Thomason, 241 S.C. 84, 127 S.E.2d 177 (1962).

In this case there was no lapse from the time the young victim left her assailant to the time when she first had an opportunity to speak to her mother. She was obviously upset and showing signs of pain. Therefore, the spontaneity requirement for res gestae is met. State v. Cox, 274 S.C. 624, 266 S.E.2d 784 (1980).

Appellant erroneously reads our cases, State v. Sudduth, 52 S.C. 488, 30 S.E. 408 (1898); and State v. Dawson, 88 S.C. 225, 70 S.E. 721 (1911), to require that the prosecutrix testify before her spontaneous statements are admissible under the res gestae exception. Appellant confuses two separate grounds of...