Weldon v. StateWeldon v. State
- Reporters:
- Before:
- Gregory
The appellant was prosecuted in the court *82below for an assault an battery on the body of а female child under the age of twelve years, with intent to commit a rape. Plea, not guilty; trial by jury; vеrdict as follows: “We the jury find defendant guilty of committing assault and battery with intent to commit a rape, and that he bo confined in the state prison for two years.” Motion for a new trial overruled, and judgmеnt on the verdict, over the objection and exception of the defendant.
The main question in the case arises on the introduction in evidence of the declarations of the injured рarty. The evidence objected to tended to prove the crime charged, by statemеnts made, not in the presence of the defendant, ■elicited by questions put to the child by her pаrents soon rafter the transaction. The injured party was offered by the ‘State as a witness, but was not allowed to testify for want .•of sufficient understanding, she being about six years of age.
Mr. Greenleaf stаtes the rule thus: “Though the prosecutrix may be asked whether she made complaint of the injury, and when and to whom; and the person to whom, nshe complained is usually called to prove that fact; yet the particular facts which she stated are not admissible in ■evidence, exceрt when elicited in cioss-examination, or by way of confirming her testimony after it has been impeached. fin the direct ‘examination, the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to rеceive only a simple yes or no. Indeed, the complaint constitutes no part of the res gеstas,.; it is only a fact corroborative of the testimony of the complainant; and where she is not a witness •in the ease, it is wholly inadmissible.” 3 Greenl. Ev. § 213.
In The People v. McGee, 1 Denio, 19, it was held, that upon the trial of an indictment .for rape, the declarations of the injured female, made “immediately ¡after .the -alleged offense, care not admissible evidenee.for the prosecution, to prove the •offense committеd; and the ruleiis the «ame though it appear that she is incompetent to testify on .accоunt of immature age, idiocy,- or other mental defect. Jewett, J., in speak*83ing for the court, said: “It is insisted on the part of the people, that when persons are excluded from being witnesses for want of understanding, whether it arises from immaturity or defect of intellect, evidence may be given of their declarations as to the offense charged. It is said (1 Chit. Or. Law, 590), ‘it was once thought, that when the party immediately injured was an infant of tender years, the parents of the child might be admitted to state the account he had given of the transaction immediately after it had taken placе, and that the infant might be examined, though not sworn (and so is the authority of- 2 Hale, 278, 9; Bul. N. P. 293); but both these ideas are now rejеcted, and it is fully established, that if the infant is of competent‘discretion, he may be sworn, however yоung; and if not-, no evidence whatever can be given respecting his assertions.’ That being the true rulе in case of a person immature in intellect, I cannot see why the reason of the rule does not apply with as much force to exclude all evidence of the declaratiоns, assertions, or signs made, supposed to communicate ideas, by a person who is incomрetent to be sworn as a witness by reason of idiocy, or weakness of intellect for any cаuse, as evidence of the commission of the offense, or to affect the credit of any other witness.”
In Regina v. Guttridges, 9 C. & P. 471, Parke, B., said: “At the time of Brazier’s Case, it seems to have been considered, that, as the child was incompetent to take аn oath, what she said was receivable in evidence. The laio was not so xccll settled then as it is noto.”
In Regina v. Megson, 9 C. & P. 418, on the trial of an indictment for a rape, it appeared that the person alleged to have been ravished (but who was sincе dead) had come home evidently suffering from i’ecent violence. It was proved that on hеr return home she made a statement as to the injury she had received, and named the persons who had committed it; it was held, that the particulars of this statement could not be given in evidence as independent evidence, to show who were the persons who committed the *84offense, and that statements of this kind were only admissible to confirm the evidence, of the prosecutrix, by showing that she made a recent complaint off the injury she had received.
The court below erred in allowing the statements made by the child to her parents,.not in the presence of the аccused, to go to the jury.
What was said and domy in- the” presence of the defendant, including his disclаimer of any wrong, wa-s properly admitted in evidence.
As there ought to have-been a mew trial awarded, we have not examined the question’ as to the sufficiency of the verdict to warrаnt the rendition?‘of judgment thereon.
It should be remarked, however, that the verdict is very indefinite. It does not find the defendant guilty as charged.
Judgment reversed, and the cause remanded, with directions to grant a new trial, and for further proceedings.