State v. Dillon

• Decision Date: 12 December 1968
• Docket Number: No. 1849,1849
• Citation: 448 P.2d 89,104 Ariz. 33
• Parties: STATE of Arizona and County of Yavapai, bodies politic, Appellees, v. Samuel DILLON, Appellant.
• Court: Arizona Supreme Court

Page 89

448 P.2d 89

104 Ariz. 33

STATE of Arizona and County of Yavapai, bodies politic, Appellees, v. Samuel DILLON, Appellant.

No. 1849.

Supreme Court of Arizona, In Banc.

Dec. 12, 1968.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, Then Atty. Gen., by Carl Waag, Asst. Atty. Gen., Eino M. Jacobson, Yavapai County Atty., for Appellees.

Head, Cline & Head, by Donald R. Head, Prescott, for appellant.

McFARLAND, Chief Justice:

Samuel Dillon, hereinafter referred to as defendant, was convicted of rape in the first degree under authority of A.R.S. § 13--611, and sentenced to serve a term not less than five nor more than six years in the Arizona State Penitentiary. From his conviction and sentence he appeals.

Defendant met the prosecutrix in Prescott, Arizona. At the time she was searching for her son who she believed had become drunk and wandered off. Dillon promised he could lead her to him. The prosecutrix believed defendant, and went with him in his car searching for her son. He later drove out to a deserted road and raped her. At the trial the substance of defendant's argument was that it was another man who was the perpetrator, and not Dillon.

The first contention raised by defendant is that the testimony by a police officer who reported on the story which was related to him by the prosecutrix shortly after the alleged rape was prejudicial. This evidence was not objected to by defendant at the time of the trial. On appeal he contends it is hearsay and for that reason inadmissible. This Court has set forth the rule governing the admissibility of such evidence in State v. McLain, 74 Ariz. 132, 245 P.2d 278:

'* * * In this assignment of error we have what is commonly called an excited utterance, or a spontaneous exclamation to which the term of 'res gestae' is sometimes applied. An excited utterance to come within the exception of the hearsay rule must have three requisites:

1. There must be a startling event.

2. The words spoken must be spoken soon after the event so as not to give the person speaking the words a time to fabricate.

3. The words spoken must relate to the startling event.

Wigmore, Sec. 1750, Vol. 6, p. 142. In this case, all the elements are present and therefore its admissibility (sic) is unquestioned. * * *'

This case also follows the rule laid down in the early Arizona case of Trimble v. Territory 8 Ariz. 273, 71 P. 932, in which the following language was used:

'* * * The natural instinct of a female thus outraged and injured prompts her to disclose the occurrence at the earliest opportunity to some relative or friend who has interest in her welfare; and the absence of such a disclosure tends to discredit her as a witness, and may raise an inference against the truth of the charge. To avoid such discredit and inference, it is always competent for the prosecution to show, as a part of its case, that complaint was made recently after the commission of the outrage, and this fact is treated as a circumstance corroborative of the complainant's testimony. * * *'

In State v. Owen, 94 Ariz. 404, 385 P.2d 700, the prosecution put two witnesses on the stand, both of whom related the story of the rape as told to them by the prosecutrix. This Court stated:

'Appellant strongly urges that the court erred in allowing the witnesses Ostaff and Officer Charles Hall to testify to statements concerning details of the alleged rape related to them by the prosecuting witness about an hour and a half after the incident, since these statements were hearsay. No objection was raised by any of the defendants to the testimony of Officer Hall and therefore its admission may not be urged as error on appeal. The trial court, in overruling objections to allowing the witness Ostaff to relate statements made to her by the prosecuting witness on the ground of hearsay, apparently considered such statements a part of res gestae. * * *'

In the instant case, there being no objection made to the testimony at the trial, as in State v....