State v. Segerberg.

• Citation: 131 Conn. 546,41 A.2d 101
• Court: Supreme Court of Connecticut
• Decision Date: 25 January 1945
• Parties: STATE v. SEGERBERG.

131 Conn. 546

41 A.2d 101

STATE

v.SEGERBERG.

Supreme Court of Errors of Connecticut.

Jan. 25, 1945.

Appeal from Superior Court, Middlesex County; McLaughlin, Judge.

Oke Segerberg was convicted of indecent assault on a female child on a trial to the superior court after the defendant had pleaded not guilty, and the defendant appeals.

Error and case remanded with a direction.

Thomas R. Robinson, David M. Reilly, and Robert B. Vining, all of New Haven, for appellant (defendant).

Thomas C. Flood, State's Atty., of Portland, for appellee (State).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

The defendant was charged in two counts with committing indecent assaults upon an eight-year-old girl. The state offered the child as a witness, but the trial court refused to allow her to testify because of her immaturity and lack of appreciation of the meaning and sanctity of an oath. Thereupon the state called as witnesses the child's mother, her stepfather, a state policewoman and a state policeman, and they testified, aginst the objection of the defendant, to conversations they had had with the girl, in the absence of the defendant, in which she recited to them the details of the alleged assaults. The evidence was claimed by the state and admitted by the court solely on the ground that the child's complaints to these witnesses showed constancy of accusation. There was no evidence other than this which tended to establish that any of the criminal acts charged had in fact been committed by the defendant or any other person. The defendant was convicted, and in his appeal he has assigned as error the admission of the testimony of these witnesses.

The testimonial capacity of the child was a matter for the court to determine upon inquiry made by it. A sufficient intelligence and a proper appreciation of the obligation of an oath are the tests usually applied. The principle upon which the court's ruling should proceed is that the child shall be sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently and to appreciate the moral duty to tell the truth. Kuczon v. Tomkievicz, 100 Conn. 560, 570, 124 A. 226. Under the most liberal tests, the obligation of the oath and an intelligent comprehension of the facts sought to be developed remain a necessary part of the qualifications of a competent witness. Ruocco v. Logiocco, 104 Conn. 585, 590, 134 A. 73. The trial court's finding states that one of the reasons for the disqualification of the witness was her immaturity. This must be taken to mean that she did not have an intelligent comprehension of the facts sought to be developed and was not competent to recollect and narrate them intelligently. She was held not to be competent to tell her story in court, yet legal effect was given to it as told out of court. She could not be cross-examined. Her disqualification prevented the use by the trier of tests vital in determining the truth or falsity of the charges made. The court had no opportunity to observe her as she told her story, to pass on her credibility and to determine whether her story was her own and not a rehearsed statement. In cases of this character, the court itself often finds it necessary to take part in the examination in order to satisfy itself on certain essential points. This could not be done here.

It is manifest that, in attempting to support the admissibility of the testimony of these witnesses when the complainant had been held not competent to testify, the state carries a heavy burden, unless it be true that there is some applicable rule of law not yet enunciated in this state. The evidence in question was offered and admitted solely as tending to show constancy of accusation. Such testimony is admitted in certain types of cases, including indecent assault upon children, when the complainant first has testified, in court, to the facts of the alleged occurrence in order to corroborate her testimony. State v. Orlando, 115 Conn. 672, 677, 163 A. 256. She is then permitted to state that she made complaint to some other person. Thereupon, the person to whom she complained, out of court and in the absence of the defendant, is permitted to testify not only to the fact that a complaint was made but also to its details. State v. Wolf, 8 Conn. 93, 99, 20 Am.Dec. 90; State v. Kinney, 44 Conn. 153, 155, 26 Am.Rep. 436; State v. Byrne, 47 Conn. 465, 466; State v. Orlando, supra, 715 Conn. at page 677, 163 A. 256. The reason for this rule is stated in the first case cited, State v. De Wolf: ‘If a female testifies, that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her female friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it, and that testimony should be received to confirm her story.’ In State v. Kinney, supra, 44 Conn. at page 156, 26 Am.Rep. 436, we said: ‘Why has the rule been adopted that in prosecutions for rape * * * the public prosecutor may show that the woman on whom the assault was made complained of it to her friends? It is simply because such a course would be natural if the crime had been committed, but very unnatural if it had not been. But her natural impulses would prompt her to tell all the details of the transaction. Why, on the same principle, ought not her statement of the details to be evidence?’ In State v. De Wolf, supra, 8 Conn. at page 99, 20 Am.Dec. 90, we said that ‘such evidence is received to shew constancy in the declarations of the witness.’ This statement was based upon declarations of the witness made in her testimony in court, and we went on to say that the testimony of witnesses to whom she complained was ‘received to confirm her story.’ In the later...