Territory of Arizona v. Kirby , 3 Ariz. 288 ( 1891 )

SLOAN, J.

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 that she did what would naturally have been done by a chaste woman under like circumstances,—viz., made known the fact of the injury done her. Greenleaf, in his work on Evidence (vol. 3, sec. 2131), says: “Though the prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited in cross-examination, or by way of confirming her testimony after it has been impeached. ’ ’ To the same effect, see Roscoe on Criminal Evidence, sec. 23; 2 Bishop on Criminal Procedure, 963; 1 Phillips on Evidence, 184, and cases therein cited. In Ohio, followed by Michigan and a few other states, the rule is that it is in the sound discretion of the trial court, in allowing testimony as to the fact of complaint made by the prosecutrix, to permit particulars as to her statement; but, as we have before stated, the great weight of authority is in favor of the rule restricting such testimony upon the direct examination of the witness to the simple fact that she made complaint. We think the testimony of Mrs. Wilson as to details of the statement made to her by the prosecutrix relative to the alleged assault should have been excluded, and that its admission was prejudicial to the defendant. The appellant raises in this court for the first time the objection that the indictment was found by a grand jury composed of fifteen grand jurors, and not of the statutory number of not less than seventeen nor more than twenty-three. Our statute does not make the organization of the grand jury a part of the record, but, on the contrary, limits the record, so far as the grand jury is concerned, to challenges to the panel or to individual grand jurors. The question raised is not, therefore, before us upon this appeal.

For the error in the admission of evidence before mentioned judgment is reversed, and the cause remanded for a new trial.