State v. Hutchison

• Decision Date: 29 June 1960
• Citation: 353 P.2d 1047,83 A.L.R.2d 1361,222 Or. 533
• Parties: , 83 A.L.R.2d 1361 STATE of Oregon, Respondent, v. William Roy HUTCHISON, Appellant.
• Court: Oregon Supreme Court

Page 1047

353 P.2d 1047

222 Or. 533, 83 A.L.R.2d 1361

STATE of Oregon, Respondent, v. William Roy HUTCHISON, Appellant.

Supreme Court of Oregon, In Banc.

Submitted on Briefs June 1, 1960.

Decided June 29, 1960.

Glenn D. Ramirez and Robert M. Redding, Klamath Falls, for appellant.

Arthur A. Beddoe, Dist. Atty., for Klamath County, Klamath Falls, and O. W. Goakey and Ernest F. Gordon, Deputy Dist. Attys. for Klamath County, Klamath Falls, for respondent.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, William Roy Hutchison, from a judgment of the circuit court, based upon the verdict of a jury, which found him guilty of the crime of Contributing To The Delinquency Of a Minor and which sentenced him to a term in the penitentiary. The minor was a boy 5 years of age. The purported wrong is said to have been committed in a trailer house belonging to the defendant which stood a short distance from a trailer house occupied by the boy's parents. The trailer park was near the city of Klamath Falls.

Only three witnesses testified: they were the parents of the minor and a member of the Oregon State Police. The defendant did not testify and did not call a witness. Neither the police officer nor the parents saw the alleged wrongful act occur. The little boy was not offered as a witness. The police officer related a confession which he swore the defendant made to him in the evening of the alleged wrongful act, October 30, 1959, and produced a four-page typewritten document, signed by the defendant, which appears to be questions and answers propounded to and answered by the defendant on the morning of October 31, 1959. The questioning was done by the district attorney and the material was typed by a stenographer. The parents of the boy testified that in less than four minutes of the time that they found their child near the defendant's trailer he told them of the defendant's wrongful action. The father believed that the boy made his statement within two minutes of that time. The defendant makes no contention that his confession was wrongfully obtained, and none that its typewritten form does not correctly record what he said. The veracity of the parents was not attacked.

The defendant submits three assignments of error. The first of them challenges a ruling of the trial judge which permitted the mother of the boy to state what the latter told her the defendant had done to him. The sole objection which the defendant voiced was, 'That is hearsay.'

The mother's testimony and similar testimony given by the father was presented by the state to meet the demands of ORS 136.540 which says:

'* * * nor is a confession only sufficient to warrant his conviction without some other proof that the crime has been committed.'

According to the state, the criminal conduct occurred October 30, 1959, about 4 p. m. At that time the mother, while attending to her infant daughter, thought the little boy was in the trailer house next door and, upon discovering her mistake, went in search for him. As she started forth the father came home from his work and joined her. The mother swore that she 'yelled' the boy's name so loud that it could be heard inside the trailers. Presently the parents saw the boy a few feet from the defendant's trailer. They did not, however, see him come out of the defendant's trailer and the door to the latter was closed when they saw him. At that moment the boy was putting on his jacket which may indicate that he had just returned to the outdoors.

The mother testified that the boy had been away for three quarters of an hour when she went forth upon the search. When she found him she was provoked to realize that he had gone to a strange place without first telling her, and was starting to reprimand him when the latter said, 'That man was a bad man, Mommy.' Thereupon, the boy divulged what had occurred. The account, as repeated by the parents, was short. The mother, referring to the boy, testified:

'He seemed to be, oh, flushed and kind of emotionally, I thought. He was different than he usually is, is the only way that I can describe it.'

She swore that the boy gave his description of the defendant's wrongful conduct within 'about three or four minutes' of the time that the parents found the boy near the defendant's trailer. The father thought the boy related the incident within two minutes of the time he was found.

The mother testified that the parents had not mentioned the incident to their son since October 30 'because we didn't want him to remember it, or you know, think it was a big issue or anything.'

The admissibility of the boy's account of what the defendant had done, as repeated by the mother and the father, is challenged solely by the objection, 'That is hearsay.'

There may occur suddenly in the presence of one who becomes its victim a startling event which draws from the individual a spontaneous declaration before he has had time for reflection or opportunity to contrive a statement which will serve his interest. The sudden occurrence in one's presence of an affray, a bad accident or an episode of gunplay may benumb the reflective powers of the observer and cause the exciting event to seize his tongue and speak through it. In instances of that kind the powers of reflection are stilled for the time being, but the tongue responds impulsively or instinctively to the excitement of the event. The utterance is really an effusion. Being spontaneous in nature, the declaration is free from the elements of design, contrivance and self-service which at times color testimony given from the witness stand. The credibility of a declaration of that kind is not dependent solely upon the veracity of the declarant. The pain, excitement or horror of the event had stilled the powers of reflection and had enabled the event itself to speak through the tongue of the declarant. It is the startling event rather than the will of the declarant that propelled his tongue. If one who sought the truth were required to make a choice between the spontaneous declaration and the testimony under oath of the declarant he possibly would choose the former. The circumstances under which the spontaneous declaration was made commend it as a reliable index to the truth.

Wigmore on Evidence, 3rd ed., § 1747, says:

'* * * Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. * * *'

McCormick on Evidence, § 272, says:

'* * * The factor of special reliability is throught to be furnished by the excitement which supends the powers of reflection and fabrication. Again, as in the other cases of 'spontaneous' statements in this chapter, this factor of special reliability serves to dispense also with any requirement that the declarant be unavailable as a witness, on the view that even his testimony on the stand would be less reliable than the statements made under the excitement of the event. Psychologists would probably concede that excitement stills the voice of reflective self-interest but they might question whether this factor of reliability is not over-borne by the distorting effect which shock and excitement have upon observation and judgment. But they might well conclude that contemporaneous statements both excited and unexicted are so valuable for the accurate reconstruction of the facts that the need is not to narrow the use of excited statements but to widen the exception to embrace as well unexcited declarations of observers near the time of the happening.

'At any rate, excitement flowing from a startling event is the key requirement now. * * *'

The rules of evidence that have found codification in Oregon make provision for the receipt in evidence of a declaration of the kind just mentioned. ORS 41.870 says:

'Where the declaration, act or omission forms part of a transcation which is itself the fact in dispute, or evidence of that fact, such declaration, act or omission is evidence as part of the transaction.'

State v. McCarthy, 160 Or. 196, 83 P.2d 801, 803, gave effect to the rule of evidence which we have under consideration. In that case this court said:

'* * * The statement of the decedent that he was robbed, which was admitted as a part of the res gestae, was proof tending to show that fact. * * *'

And in prosecutions for rape the state may show that shortly after the alleged act the woman made complaint: State v. Tom, 8 Or. 177; State v. Sargent, 32 Or. 110, 49 P. 889; State v. Matson, 120 Or. 666, 253 P. 527; and State v. Haworth, 143 Or. 495, 21 P.2d 1091. The Matson decision says [120 Or. 666, 253 P. 529]:

'* * * Of course, when the declaration is contemporaneous with the offense, it is a part of the res gestae and then the particulars of the statement are admissible. * * *'

Wigmore on Evidence, 3rd ed, § 1750 gives extensive consideration to the time interval that may occur between the exciting event and the declaration. It says:

'The utterance must have been before there has been time to contrive and misrepresent, i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings.

'It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated.

The fallacy, formerly entertained by a few Courts,...