Commonwealth v. DodsonCommonwealth v. Dodson
Opinion by
This is аn appeal by defendant who was convicted of indecent assault upоn an eleven year old girl. He did not testify or produce any evidence on his behalf. After. his conviction his motion for a new trial was refused, sentence was impоsed, and he took this appeal.
The question raised is whether it was error to permit the chief of police to testify, over objection, that *423 the eleven year old girl said, in the police station, in the presence of himself, officer Jellison, the house sergeant, and the defendant: “The man is sitting right back there in the chair.”
Appellant contends the trial judge erred in permitting the chief of police to testify to a statement made by one of the accusing persons in the prеsence of the defendant, which was denied by hiin. Appellant contends that the оnly reason for the admissibility of a statement made in the presence of a dеfendant or any person which is accusatory in nature is the tacit admission of the truth of the charge by silence. In support of his contention appellant rеlies on the principle set forth in
Com. v. Vallone,
In the instant case there was no denial by the defendant of the identification made in his presence and hеaring by the prosecutrix. True, there was testimony that he had denied the charges on which he was accused at the time of his arrest.and later at the policе station, but to make inapplicable the principle in Com. v. Vallone, supra, quoted above, the denial , of an incriminating statement must be made spontaneously and the fаilure to immediately challenge or , contradict an *424 incriminating statement cannot be excused or mitigated on the ground that there had been a previous dеnial of the charges to which the incriminating statement relates. It is obvious there cannot be a spontaneous repulsion of what might be considered a falsе accusation prior to its enunciation. The defendant was informed by the arrеsting officer of the nature of the charges against him. The subsequent statement of the prosecutrix identifying him as the man who had abused her was therefore a most damaging charge of an incriminating character and naturally called for a denial at that time. Under the circumstances, the statement of the prosecutrix and the fact оf defendant’s failure to deny her identification are admissible in evidence. Seе 20 Am. Jur., Evidence, §570.
However, the admission of the testimony of the chief of policе in no way prejudiced the defendant. The question of identification had been gоne into in great detail when the prosecutrix was on the stand prior to the time the chief of police testified. What- she said at the time was brought out upon cross examination by counsel for the defendant as follows: “Q. By the way, when you said, ‘this is the man’, what did he say? A. Sir, he didn’t say anything. Q. Didn’t he say he didn’t do it? A. No, sir, but he told the cops, or my brother, I don’t knоw who he told, but he said, that he never saw us before and that was at the policе station.” The fact of defendant’s denial of the accusation was therefore already in evidence at the time the chief of police testified as to the identification of the defendant by the prosecutrix.
Moreover, the prosecutrix had a right to identify the man who had abused her and those present had the right to testify as to what they saw and heard uttered by the victim and the defendant.
Judgment and sentence affirmed.