Soto v. Territory of Arizona

• Citation: 94 P. 1104,12 Ariz. 36
• Decision Date: 27 March 1908
• Docket Number: Criminal 258
• Parties: PABLO SOTO, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Supreme Court of Arizona

94 P. 1104

12 Ariz. 36

PABLO SOTO, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 258

Supreme Court of Arizona

March 27, 1908

APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan Judge. Affirmed.

The facts are stated in the opinion.

Allen R. English, for Appellant.

The testimony of the woman Mary Sherman, mother of the boy Amilio, was inadmissible, because such testimony cannot be admitted as res gestae. It can only be admitted in corroboration, and never to prove the substantive offense. It cannot be admitted under any circumstances where the party alleged to have been injured has not testified to the same matters; furthermore, the details of the complaint alleged to have been made, or the name of the alleged assailant, cannot be given. These propositions are supported by an unbroken line of American authority, which followed the English rule. Territory v. Kirby, 3 Ariz. 288, 28 P. 1134; People v. McGee, 1 Denio, 21; Baccio v People, 41 N.Y. 265; Reddick v. State, 35 Tex Cr. App. 463, 60 Am. St. Rep. 56, 34 S.W. 274; Hornbeck v. State, 35 Ohio St. 277, 35 Am. Rep. 608; State v Meyers, 46 Neb. 152, 64 N.W. 697, 37 L.R.A. 423; Luttrell v. State, 40 Tex. Cr. 651, 51 S.W. 930, and other cases cited in 42 Cent. Dig., col. 69, and 2 Am. & Eng. Ann. Cas. 235. In Ohio, the court says: "In sodomy cases, where the injured party has not testified, it is error to admit his declarations or complaint made to another." Foster v. State, 1 Ohio C.C. 467. See, also, People v. Graham, 21 Cal. 261; Lee v. State, 74 Wis. 45, 41 N.W. 960.

E. S. Clark, Attorney General, and P. Tillinghast, for Respondent.

OPINION

SLOAN, J.

-- The appellant, Soto, was charged and convicted in the court below with having committed the infamous crime against nature with one Amilio Sherman, a Mexican boy of about the age of four years. Upon the trial the mother of the boy testified that about 11 o'clock on the morning of the 2d of March, 1907, she sent her son to a store, situated about the distance of six city blocks from her home, to purchase some red chili and candy; that at about half-past 12 o'clock her son returned crying and very pale; that she examined him, and found his rectum lacerated and bleeding. She was then asked by the district attorney to state what, if anything, was said by the boy then as to the cause of his injuries. The question was objected to by counsel for the defendant, but the objection was overruled, and the witness was then permitted to state in full what was said by the boy as to what had transpired between himself and the defendant. Other witnesses testified to having seen the boy soon after his return to his mother's house, and that he was then in a state of excitement, and was crying and complaining of his injuries. These witnesses described the injuries as did the mother. The admission of the testimony of the latter as to the statement of her son as to the details of the alleged assault is complained of by counsel for appellant, and is the only question raised on this appeal.

We have held in the case of rape that the prosecution may prove that the prosecutrix made complaint soon after the alleged rape, but that the details of her statement are not admissible, unless such statement should be shown to be a part of the res gestae. Territory v. Kirby, 3 Ariz. 288, 28 P. 1134. As this is not a case of rape, we express some doubt as to whether the rule admitting the fact of complaint as evidence in corroboration of the testimony of the prosecuting witness applies at all; at any rate, the question of the admissibility of the statements made by the Sherman boy to his mother, at the time when made, and under the circumstances as made, must turn upon whether they come within the exception to the general rule relating to hearsay evidence, which is included within the res gestae rule.

Upon no branch of the law of evidence is there such confusion and seeming conflict as in the application of the rule admitting statements as a part of the res gestae. As expressed by Chief Justice Blakely of Georgia: "The difficulty of formulating a description of the res gestae which will serve for all cases seems insurmountable. To make the attempt is something like trying to execute a portrait which shall enable the possessor to recognize every member of a numerous family."

In its application to statements made by injured persons after their injuries as to the circumstances of such injuries Mr Wigmore, in his work on Evidence, has well pointed out that the verbal act or res gestae rule is inadequate to account for their admission. Their admission is rather based upon the theory that human experience shows that under circumstances of physical shock or great nervous excitement a person will give utterance to the truth as to their knowledge of the event which produced such shock or nervous excitement, and their experience in relation thereto. As the learned author points out, the verbal act rule is distinct from this, which may be denominated the rule of "spontaneous utterance," in that the former is based upon the...