Wallace v. State, 58237

• Citation: 259 S.E.2d 172,151 Ga.App. 171
• Decision Date: 04 September 1979
• Docket Number: No. 58237,58237
• Parties: WALLACE v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 172

259 S.E.2d 172

151 Ga.App. 171

WALLACE v. The STATE.

No. 58237.

Court of Appeals of Georgia.

Submitted July 3, 1979.

Decided Sept. 4, 1979.

John Knight, Albany, for appellant.

William S. Lee, Dist. Atty., Hobart Hind, Asst. Dist. Atty., for appellee.

DEEN, Chief Judge.

Appellant was tried by a jury and convicted of child molestation. He brings this appeal contending that the trial court erred in permitting his wife to give hearsay testimony.

Appellant's daughter, a child about nine years of age, testified to defendant's acts in molesting her and was extensively cross examined. The state then called Mrs. Wallace who testified that on the date of the alleged crime she was taken to work by her husband and about 3:55 that afternoon appellant, accompanied by their three children, picked her up at work. When she got in the car she observed that their daughter ". . . was looking real wild with . . . big eyes and her hair sticking out, and I said 'what is wrong with your hair,' and Butler didn't give her a chance to answer; he said, 'She's just been playing rough, you know how she is.' " She further testified that while on the way home her husband decided to stop at a friend's house for a drink and left her with the children in the car. After about 10 minutes, she went inside the house to get her husband. They finally arrived home about 4:20 and he left about 4:45 to go to a friend's house. After her father left, the child sought out her mother, gave her an account of the incident which occurred between one and two hours earlier, and repeated her father's threat to kill her if she told her mother.

Appellant objected to the child's statement to her mother as hearsay, but the trial court ruled that it was part of the res gestae, and the mother was allowed to repeat the statement at trial. Held :

Code Ann. § 38-305 defines res gestae testimony as follows: " Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of res gestae." However, "(n)o precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed." Turner v. State, 212 Ga. 199, 200, 91 S.E.2d 501, 502 (1956). It is not afterspeech that the law distrusts but afterthought. Bunn v. State, 144 Ga.App. 879, 243 S.E.2d 105 (1978). In the present case, the statement was in narrative form rather than an outburst. "Where a statement is narrative rather than exclamatory, 'the circumstances must be closely scrutinized, because narrative is generally the result of afterthought.' Southern R. Co. v. Brown, 126 Ga. 1, 4, 54 S.E. 911, 912. Other cases have more generally condemned narrative statements: 'The real test is, were the declarations a part of the occurrence to which they relate or were they a mere narrative concerning something which had fully taken place and had therefore become a thing of the past?' Western & A. R. Co. v. Beason, 112 Ga. 553, 557, 37 S.E. 863, 865; Peebles v. State,236 Ga. 93(2), 222 S.E.2d 376. Much of the case law on res gestae declarations is founded upon Justice Nisbet's interpretation in Mitchum v. State, 11 Ga. 615, 627: 'If the declarations appear to spring out of the transaction if they elucidate it if they are voluntary and spontaneous, and if they are made At a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous.' " Clark v. State, 142 Ga.App. 851, 852, 237 S.E.2d 459, 460-461 (1977). In Clark v. State, supra, the court applied the standards spontaneity, voluntariness, closeness in time, freedom from suspicion of device or afterthought and after closely scrutinizing the declaration's narrative character, found that the statement made by a boy to his father about forty minutes after a sexual assault by a third party did not come within the res gestae exception. The child had been brought home scared and crying to his parents and the father went looking for the perpetrator. The child calmed down while he was at home with his mother, but did not make any statement. Only after intense questioning by his father en route to the police station did the child give an account of the incident. The court recognized that "(t)he conclusion might very well be different had the child told what had happened in an immediate outcry or even shortly after being calmed down." Id. at 853, 237 S.E.2d at 461.

In the present case, the crime was...