97 Wash. 593 | Wash. | 1917
The defendant in this case was charged by information with the crime of rape, committed upon a female child under the age of fifteen years. The trial resulted in a verdict of guilty. From the judgment entered upon this verdict, the defendant appeals.
The facts, briefly stated, are these: The appellant, on the 23d day of July, 1916, was living at the home of the father of the prosecuting witness, and had been making his home there for a few months previous to that time. On the evening of the day mentioned, in the dining room of the home, at about the hour of 9:30 o’clock,, the offense is claimed to have been committed. The father of the prosecuting witness was employed in a restaurant, and worked from seven o’clock in the evening until seven o’clock in the morning. An uncle of the prosecuting witness was in the house at the time in an upstairs room. Immediately after the occurrence, the appellant was arrested by two police officers, who had observed the commission of the offense through a window of the house, the dining room at the time being lighted.
Shortly after the occurrence, the uncle took the child to the restaurant where her father was at work, but no conversation took place between the child and the father at that time, the latter directing the uncle to take her home and saying that he would see her the next morning. The police officers, or one of them, previous to this visit, and the uncle at the time, informed the father what had taken place. On the following morning, at about 7:30 o’clock, the father re
“After a pretty thorough examination of the cases we think the better rule is to restrict the evidence to the fact of complaint, and that anything beyond that is hearsay of the most dangerous character.”
In State v. Griffin, 43 Wash. 591, 86 Pac. 951, the holding in that case is referred to with approval. It follows, therefore, that it was error for the trial court, in the case now under consideration, to permit the father to relate upon the witness stand the facts as his daughter had detailed them to him on the morning following the occurrence.
The state argues that this conversation between the father and the daughter was a part of the res gestae, and therefore admissible, but the rule permitting the fact of complaint to be shown is not based upon the theory that it is a part of the
“Res gestae are events speaking for themselves, through the instinctive words and acts of participants, but are not the words and acts of participants when narrating the events. What is said or done by participants under the immediate spur of a transaction becomes thus part of the transaction, because it is then the transaction that thus speaks. . In such cases it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted. What they did or said is res gestae; it is part of the transaction itself.”
It is said, however, that, even though it was error to permit the father to detail what his daughter had told him, it was not prejudicial, because the evidence overwhelmingly established the appellant’s guilt. Even though the other evidence offered was very conclusive as establishing the guilt of the accused, this would not justify a holding that illegal evidence upon the vital issue in the case was not prejudicial to him. The appellant, testifying in his own behalf, denied his guilt. The question of fact was for the jury. This is not one of those cases where it can be said that the error was only technical, or was not prejudicial to the rights of the accused. The evidence offered and received was not admissible under the previous declaration of this court in the Hunter case, supra, and the Griffin case which followed it. For this error, the case must be reversed.
The appellant makes three other assignments of error, all of which relate either to the ruling of the trial court in rejecting offered testimony or limiting the scope of the cross-examination of the state’s witnesses. While these objections are argued briefly, we think they do not present questions for detailed discussion. In the rulings challenged by these
The judgment will be reversed, and the cause remanded for a new trial.
Ellis, C. J., Chadwick, and Morris, JJ., concur.