State v. Kendrick

• Decision Date: 27 January 1965
• Citation: 239 Or. 512,398 P.2d 471
• Parties: STATE of Oregon, Respondent, v. William Henry KENDRICK, Jr., Appellant.
• Court: Oregon Supreme Court

Page 471

398 P.2d 471

239 Or. 512

STATE of Oregon, Respondent, v. William Henry KENDRICK, Jr., Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 6, 1965.

Decided Jan. 27, 1965.

George A. Haslett, Jr., and John Paul Jones, Portland, argued the cause and submitted the brief for appellant.

Harold C. Hart, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before McALLISTER, C. J., and SLOAN, GOODWIN, HOLMAN and LUSK, JJ.

HOLMAN, Justice.

Defendant has appealed from his conviction of the crime of rape of a four-year-old child. On the evening of May 11, 1963, defendant called at the home of the mother of the child to visit his friend Allen who was residing there temporarily. Both men were members of the United States Army, having been recently stationed together. There were present, in addition to Allen and the defendant, the child's mother, her three children--two boys, aged 5 and 3, and the alleged victim--and three unrelated teenage boys. The defendant appeared to have been drinking and left the front room, where he was talking to his friend Allen, for several trips to the bathroom which was reached by way of the kitchen where the children were eating supper. After his last trip through the kitchen he returned to the front room and announced he had to leave and did so. Immediately thereafter, the victim's five-year-old brother entered the living room from the kitchen, in what appeared to the witness to be a frightened condition, announcing the absence of his sister. Over the objection of the defendant, Allen was permitted to testify as follows concerning the boy's statement:

'He said that man had put Wee wee (referring to the victim) out the back door and locked it.'

There was testimony from which the jury could have found that the defendant was thereafter discovered molesting the girl in a shed at the rear of the house.

The defendant claims that the court's admission of testimony concerning the child's statements was error as it was hearsay. There is no doubt that it was hearsay which is the use in court of an assertion made out of court as testimony to the truth of the fact asserted. The evidence offered was for the purpose of proving that the defendant put the little girl out the back door and locked it behind her. The only question is whether the testimony falls within one of the recognized exceptions to the rule that hearsay testimony is not admissible. We believe that it does and was properly admitted.

The ground for the exclusion of hearsay is that the opposing party has no opportunity to confront in court the person making the statement and test his veracity and accuracy by cross examination. State v. Oppie, 179 Or. 189, 170 P.2d 736. Therefore, in order to come within an exception to the rule such a statement must have been made under circumstances calculated to give some special trustworthiness to it.

Statements known as spontaneous exclamations fall within a generally recognized exception to the rule. In order to qualify under this exception, the following have to exist: (1) there must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must be before there has been time to contrive and misrepresent and while reflective powers are yet in abeyance; (3) the utterance must relate to the circumstances of the startling occurrence preceding it. (See § 1750, Wigmore on Evidence, 3rd ed.)

The reason that courts have felt that an extra aura of truth surrounds such spontaneous exclamations and thus justifies their admissibility, even though cross examination is not available, is best stated in the words of Lockwood, J., in Keefe v. State, 50 Ariz. 293, 72 P.2d 425, as follows:

'A spontaneous exclamation may be defined as a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The admissibility of such exclamation is based on our experience that, under certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing the real belief of the speaker as to the facts just observed by him.'

In the immediate case it is apparent that the trial judge was justified in admitting the statement of the victim's brother as a spontaneous...