State v. Gorman, 35001
| Decision Date | 16 December 1949 |
| Docket Number | No. 35001,35001 |
| Citation | 229 Minn. 524,40 N.W.2d 347 |
| Parties | STATE v. GORMAN. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. In a prosecution for the crime of indecent assault on a boy less than four years of age, Held that the fact that a child may be incompetent to testify as a witness does not make a res gestae utterance or statement by the child inadmissible if it otherwise qualifies under the res gestae rule.
2. Under facts and circumstances of case, statement made by boy was admissible under res gestae rule.
3. The fact that the utterance or statement was made in response to a question does not affect its admissibility, but it may be less indicative of spontaneity than an uninvited one.
4. In determining whether an utterance or statement made is part of the res gestae, trial court has a wide range of discretion, but, of course, it is not absolute.
5. Under facts of case, it was not error to permit a child five years of age to testify.
6. Evidence does not sustain claim of defendant that he was subjected to threats and beatings and that a confession received in evidence was produced thereby.
Stetson & Jacobson, Minneapolis, for appellant.
J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., Michael J. Dillon, County Atty., Howard T. Van Lear, Asst. County Atty., Minneapolis, for respondent.
Defendant was found guilty of the crime of indecent assault. He had been tried before the court without a jury. The appeal is from an order denying his motion for a new trial.
It is the claim of the prosecution that defendant picked up a boy not quite four years old, gave him a ride in his car, and during the ride took indecent liberties with the boy. Defendant admits that he gave the boy a ride. He denies taking indecent liberties with him.
After the ride, the car stopped on a corner half a block from the boy's home. His mother was standing in front of their home. When the door of the car opened the boy ran directly to his mother. She testified: 'Well, I seen him running from the car and I noticed he was quite flushed when he came to me, so I took him in the house because there were quite a few people around the house. I set him on a table and asked him where he had been, and I said to him, 'did the man tell you not to tell me?' I said to him, 'don't be scared, tell Mama,' and I said 'did the man play with your wisser,' and I said, 'what did he do,' and he said, 'well, he put it in his mouth and he bit it, and it hurt."
Objection was made to this testimony. Defendant claims error in the court's ruling admitting it. It is the state's position that the testimony was competent and admissible under and within the rules of res gestae.
1. The court did not permit the boy to testify, holding that he was incompetent. However, the fact that a child may be incompetent to testify as a witness does not make a res gestae utterance or statement by him inadmissible if it otherwise qualifies under the res gestae rule. Ball v. Gessner, 185 Minn. 105, 240 N.W. 100. In the late case of Ammundson v. Tinholt, 228 Minn. 115, 36 N.W.2d 521, we stated that it is not necessary that the declarant be competent as a witness in order to make a res gestae utterance by such person admissible. It is not an open question in this state. See, also, 6 Wigmore, Evidence, 3d Ed., § 1751; State v. Findling, 123 Minn. 413, 144 N.W. 142, 49 L.R.A., N.S., 449.
2. The question then arises whether the statement made by the boy to his mother can qualify as a res gestae statement. Admissibility of such utterances or statements depends upon the circumstances under which they were made; therefore, the facts in each particular case must be considered. An important fact to be considered is the time when such statement was made. The general rule is that the statement must be contemporaneous with the act or transaction of which it is a part. It is sufficient if it is substantially contemporaneous--if it was made so soon after the act or transaction that it may fairly be regarded as a part or incident thereof. 2 Dunnell, Dig. & Supp. § 3301. In this case the boy ran directly from the car to his mother. She was the person to whom it would be natural for him to run. She immediately took him into the house and placed him on a table. The statement was made immediately thereafter. It is fair to assume, judging by the length of time it would ordinarily take to do the things that were done here, that the time which elapsed from the moment he ran from the car to the time the statement was made was not more than two or three minutes. Obviously, it was made so soon after the incident that it must be considered substantially contemporaneous with it and made so soon after the incident that it may fairly be regard as a part of the incident. The circumstances here satisfy the time element.
The mother was the first person the boy spoke to after the commission of the alleged offense. It was natural that she would be the one to whom he would make a statement relative to the offense. When he came to his mother he was flushed, and, inferentially from the mother's testimony, he was frightened. The evidence does not indicate any opportunity or...
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