The defendant was convicted in.the criminal court of Marion county June 18, 1925, and sentenced to serve a term *362 of eighteen years' in the penitentiary, upon an indictment Charging him with the rape of а ten year old child.
The crime is alleged to hаve been committed at the home of defendant in the town of Mannington. The case of the Stаte was established by the testimony of the prosecuting witness and two physicians who examined her on the evening of the occurrence. The dеfendant denied any improper relations with the child, but admitted that she was in his house at the time the оffens'e is alleged to have been committed.
As one of the numerous grounds of error complained of, it is charged that the trial court imprоperly permitted certain witnesses to relаte statements made by the prosecutrix to them several hours after the attack, involving the dеtails of the offense. It appears that one witness was permitted so to testify. According tо the weight of authority, including the holdings of this Court, it is reversible error to admit in a trial for rape the extra-judicial statement of the prosecuting witness nаming the accused and detailing the particulars of the crime; unless made under sHch circumstances as to constitute part of the
res gestae,
or offеred for the purpose of corroborаting the prosecuting witness when her testimony has been impeached. Neither of these excеptions applies to this case. It is proрer to show, as corroborative testimony, the fact that prosecutrix made complaint of the outrage soon after its commission, but the particulars and the name of the person alleged to have committed the act should be excluded.
State
v.
Harrison,
It is with extreme reluctance thаt we have decided to re-leerse the judgment complained of, and do so only under constraint of a salutary rule of evidence invokеd by the defendant. It is1 exceedingly unfortunate that thе prosecuting attorney and the trial court failed to observe the recent decisions оf this Court, as well as the general law defining the rule оf evidence under consideration.
*363 Many of thе other errors assigned are based upon аlleged rulings of the court not disclosed by the record. The remaining ones are without basis' in law.
The judgment is reversed, the verdict of the jury set aside, and a new trial awarded the defendant.
Reversed and remanded.