State v. Sargent

• Decision Date: 31 July 1897
• Citation: 49 P. 889,32 Or. 110
• Parties: STATE v. SARGENT.
• Court: Oregon Supreme Court

49 P. 889

32 Or. 110

STATE v. SARGENT.

Supreme Court of Oregon

July 31, 1897

Appeal from circuit court, Morrow county; Stephen A. Lowell, Judge.

Chet Sargent appeals from a conviction of assault with intent to rape. Reversed.

G.W. Rea and H.S. Wilson, for appellant.

H.J Bean, for the State.

WOLVERTON J.

The defendant was indicted and convicted of an assault upon Bessie Robbins, a female child of the age of eight years with intent to commit a rape. The child testified as a witness for the state, in substance, that one Grace Casey was with her at the time of the alleged assault; that they went directly from the place of the assault to where the Casey girl's mother lived, in the same block, and that Grace related to her mother what had transpired; that they went from there to where Mrs. Robbins, the mother of Bessie lived also in the same block, and that Grace told Mrs. Robbins what had happened. Grace Casey corroborated Bessie, and thereupon Mrs. Robbins was called and testified, over the objection of the defendant, that Grace told her what had happened while Bessie was standing by; that Bessie, when asked if what Grace said was true, ran out of doors, and hid behind the house, and then into the bedroom, and hid under the bed, and, upon being persuaded to come out, that she then told the same story as had been just related by the two girls. She further testified that she immediately made an examination of the child, and found her all right. Error is predicated upon the action of the court below in permitting Mrs. Robbins' testimony to go to the jury. What Bessie Robbins and Grace Casey told her touching the acts and demeanor of the defendant towards Bessie cannot be considered as part of the res gestae constituting the alleged assault. True, the disclosure was made soon after the alleged assault, but what she learned from the girls was simply hearsay, a narration of the past event, and not the language of emotion caused by the supposed occurrence. The rule, however, is well established that hearsay evidence in such instances is permissible, but the authorities are divided as to its limits. Without undertaking at length the reasoning upon which they diverge and are controlled, we think the better rule to be that which confines such testimony in the first instance or in chief for the state to the fact that the injured party made recent complaint of the act charged, to evidence of her state and appearance, marks of violence, and the condition of her apparel shortly after the alleged occurrence. Such authorities justify the admission of the testimony of third parties to the fact that the prosecutrix made recent complaint upon the ground that it is the natural instinct of an outraged female to make immediate disclosure thereof to a near relative or confidential friend; and, inasmuch as her failure to do so would tend to discredit her as a witness, the prosecution is permitted to anticipate such a claim by affirmative proof that complaint was made. So it is that evidence of the fact that she made such complaint, as well as of her manner and appearance when made, is admitted as corroborative of her testimony touching the crime charged. Baccio v. People, 41 N.Y. 265; Parker v. State, 67 Md. 329, 10 A. 219; Pefferling v. State, 40 Tex. 486; Proper v. State (Wis.) 55 N.W. 1035; Thompson v. State, 38 Ind. 39; State v. Shettleworth, 18 Minn. 208 (Gil. 191); State v. Richards, 33 Iowa, 420; Stephen v. State, 11 Ga. 225; People v. Mayes, 66 Cal. 597, 6 P. 691; 3 Rice, Ev. 834, 835; Oleson v. State, 38 Am.Rep. 366. Nor does the rule seem to be different where the prosecutrix is a child of tender years. State v. Tom, 8 Or. 180, and People v. McGee, 1 Denio, 19. In the case at bar, Mrs. Robbins, by a sweeping sentence, in effect testified to all that the two girls had told her concerning the alleged assault upon Bessie by the defendant, and under the rule it was error to permit it. This could not be deemed less than a repetition of the children's narrative of the occurrence, and therefore subject to the very pertinent objection that it was hearsay. It was proper for the mother to testify to the fact that Bessie had made the disclosure, and to describe her manner and appearance at the time, and the condition in which she found her person upon the examination made, but not to relate what the girls had told her touching the particulars of what transpired relative to the alleged assault. For this error the case must be reversed.

We will notice but one other assignment, as the case must go back, and the other questions urged here are not likely to arise upon a retrial. It is strenuously urged by the counsel for the defendant that there can be no assault with intent to commit a rape where the female consents, even though she be under the age of 16 years. The statutory crime of rape is thus defined: "If any person over the age of sixteen years shall carnally know any female child under the age of sixteen years, or any person shall forcibly ravish any female such person shall be deemed guilty of rape." Section 1733, Hill's Ann.Laws Or., as amended (see Sess.Laws 1895, p. 67). Section 1740, Hill's Ann.Laws Or., provides for...