43 A.2d 545 | Pa. Super. Ct. | 1945
Argued April 26, 1945. Appellant was convicted of indecent assault upon a seven-year old girl. His appeal does not challenge the sufficiency of the evidence to sustain the conviction. The sole question for decision is whether the trial court committed harmful error by permitting the girl's mother to testify to the details of the child's complaint.
Appellant called at the mother's home to collect a bill. She was at a nearby neighbor's house, and two girl companions, who were on the front porch with the girl victim, left to summon the mother. In their absence the attack took place. The mother arrived home within five minutes after the assault. After appellant stated the purpose of his call to the mother, he left; the two girls, who had returned with the mother, departed at the same time; and immediately thereafter the girl told her mother what had occurred.
The girl was permitted to testify, the trial court having found her a "very intelligent" child, who understood the sanctity of an oath. The mother testified to the details of the occurrence as the child had recounted them to her, and the trial judge reports that "the details of her complaint were in accordance with the testimony given by the child at the time of trial." The court admitted the mother's testimony under the res gestae rule.
Appellant, conceding that the mother's testimony would have been admissible in a prosecution for rape or assault and battery with intent to ravish, argues that *343
it was not receivable in this case because indecent assault, according to Com. v. DeGrange,
The primary qualification is that the declarations be made under circumstances supporting the conclusion that they were the spontaneous utterance of thought created by, or emanating from, the litigated act, and so soon thereafter as to exclude the possibility that they may be the product of premeditation and design. Com. v. Werntz,
This appeal has been submitted to us under an agreed statement of facts by the district attorney and defendant *344
purusant to our Rule 56. This does not preclude us from examining the original record and the evidence if they are deemed helpful in the decision of the case. Bryant v. McGowan,
The ultimate test is whether the res gestae declaration bears the impress of truth. That the girl's testimony and her statement to her mother were not wholly fabricated is best indicated by defendant's own corroborative admission that he had brushed away a large insect which was crawling up the petticoat of the young girl.
All assignments of error are overruled; the judgment *345 is affirmed; and it is ordered that appellant appear in the court below at such time as he may be there called and that he be committed by that court until he shall have complied with his sentence, which had not been served at the time his appeal was made a supersedeas.