28 P. 1134 | Ariz. | 1891
The appellant was convicted at the special September term, A. D. 1890, of the district court of Cochise County, of the crime of assault with intent to commit rape. The principal assignment of error, and the one upon which appellant chiefly relies, relates to the admission in evidence of certain statements made by the prosecutrix as to the alleged assault made upon her by appellant, and the particulars thereof, soon after the offense, to one Mrs. Wilson. The record discloses that Mrs. Wilson was permitted, over objection, to testify somewhat in detail as to the statements made to her by the prosecutrix soon after the alleged assault as to what oceurrred between her and the appellant. Although there is some conflict of authority as to the admissibility of such evidence in eases of rape or assault to commit rape, the great weight of authority, both in this country and in England, is against the admission of anything more than the fact that complaint was made of the injury by the prosecuting witness. The evidence of the complaint is not admitted as a part of the res gestee, nor as evidence of the guilt of the defendant, but merely in corroboration of the prosecuting witness in the sense that it removes from her testimony a suspicion that might otherwise rest upon it, unless it were shown
For the error in the admission of evidence before mentioned judgment is reversed, and the cause remanded for a new trial.