State v. Whitman ( 1914 )

Mr. Justice Moore

delivered tbe opinion of tbe court.

1. Tbe prosecuting witness on ber direct examination testified in detail as to tbe offense charged, saying it occurred in tbe absence of ber mother, upon whose return, about two hours after tbe crime bad been committed, tbe witness informed ber thereof. Thereupon Nora Whitman, the mother, a deaf mnte, testified by an interpreter: That when she reached home, about 11 o’clock on the night the offense is alleged to have been perpetrated, her daughter looked ill and said she was sick.

“Q. Did Gertrude say anything had been done to her?

“A. Yes.

“Q. Did she name anybody who did it, and, if so, who?”

An objection to this question having been overruled and an exception allowed, the witness answered, “Her father.” It is contended that, in permitting such hearsay testimony to be received, an error was committed. Under the rule prevailing in Oregon as in most other states of the Union, it would have been error if Mrs. Whitman had been allowed to testify as to the particulars of the complaint which her daughter made to her respecting the assault: State v. Tom, 8 Or. 180; State v. Sargent, 32 Or. 110 (49 Pac. 889). When a girl or a woman is ravished or assaulted with an intent to commit rape upon her, and at the trial of the party accused thereof she appears as witness against him, it is material to prove, if she is above the age of legal consent, .that she made complaint of the outrage within a reasonable time after receiving it: 23 Am. & Eng. Ency. Law (2 ed.), 877; Greenleaf, Ev. (16 ed.), § 213; 2 Wigmore, Ev., § 1136. The testimony of persons to whom the complaint was made is admissible as original evidence, in order to corroborate the prosecutrix and to rebut any inference that she consented to the outrage: State v. Birchard, 35 Or. 484 (59 Pac. 468); Johnson v. State, 27 Neb. 687 (43 N. W. 425). In anticipation of such a defense, based upon an inference, it is competent for the prosecutrix, upon her direct examination, to state when she notified anyone of the attack made upon her, and also to name the person who was thus informed: State v. Sargent, 32 Or. 110 (49 Pac. 889); State v. Ogden, 39 Or. 195 (65 Pac. 449); Griffin v. State, 76 Ala. 29; People v. Barney, 114 Cal. 554 (47 Pac. 41). Where, however, as in the case at bar, the girl assaulted is under legal age to yield consent to her degradation, no such inference can arise, and her failure to make complaint is immaterial: 33 Cyc. 1468.

“Under the doctrine which excludes in the first instance the particulars of a complaint, ’ ’ says an author, “the statement of the prosecutrix as to the name of or her description of her assailant is not admissible, though it is permissible to show the fact that the prosecutrix in her complaint named a person as her assailant, providing the name of such person is not brought out”: 23 Am. & Eng. Ency. Law (2 ed.), 876. See, also, Thompson v. State, 38 Ind. 39; State v. Hunter, 18 Wash. 670 (52 Pac. 247).

In a note to the text in 33 Cyc. 1465, it is said:

“Some courts hold that evidence is admissible if the prosecutrix stated that the defendant was the person who assaulted or ravished her, describing him. * * The weight of authority, however, is that this is a detail which cannot be proved.”

The objection to such testimony is based on the ground that the jury may not have understood that the sworn statements were receivable chiefly to rebut an inference of consent upon the part of the prosecutrix, but that they may have regarded the testimony of the witness, who named the person mentioned by her in the complaint, as original evidence respecting the identity of the culprit, whereby an innocent person might possibly have been found guilty thereof. “Some courts,” says a text-writer, “hold that the particulars of a complaint are admissible where the prosecutrix is of tender years, but the weight of authority is to the contrary”: 33 Cyc. 1466.

One of the cases cited in support of the principle thus announced is that of State v. Sargent, 32 Or. 110, 113 (49 Pac. 889, 890), where Mr. Justice Wolverton, speaking for the court in discussing that subject, says: “Nor does the rule seem to be different where the prosecutrix is a child of tender years.” It will thus be seen that, under the rule which obtains in this state, an error was committed in allowing Mrs. Whitman, over objection and exception, to testify that, when her daughter made complaint of the ill treatment received, she named her father as the person who assaulted her.

2. In the trial of criminal actions on appeal, where it appears that an error has been committed, it has been the practice to hold that prejudice would be presumed, unless the record affirmatively showed the contrary, thereby necessitating a reversal of the judgment of conviction: State v. O’Neil, 13 Or. 183 (9 Pac. 284); State v. Ah Lee, 18 Or. 540 (23 Pac. 424); State v. Osborne, 54 Or. 289 (103 Pac. 62, 20 Ann. Cas. 627).

From a transcript of the entire testimony given at the trial, it appears that the defense herein was predicated upon the theory that Mrs. Whitman desired to secure a divorce, and a foundation therefor she induced the prosecutrix to make against her father the criminal charge which culminated in his conviction. The defendant introduced testimony tending to show that, in the community in which he resided, he possessed the reputation of a moral person, and also to prove that no person could have assaulted his daughter as alleged. The testimony of Mrs. Whitman as to the condition of the girl’s clothing after the complaint had been made, and of her physical condition at that time, supplemented, as it is, by the testimony of Dr. O. E. Patterson, who, at the mother’s request, examined the girl, afforded evidence which, if believed by the jury, warranted them in concluding, beyond a reasonable doubt, that an assault with an intent to commit rape had been perpetrated upon the prosecutrix. Whether or not the defendant was the person guilty thereof depended upon the credence given by the jury to her testimony. Without adverting to her sworn statements in this particular, we are satisfied that, if they were believed, the jury were justified in determining that he was guilty of the offense charged. Such being the case, we think it affirmatively appears that the defendant was properly convicted, and that he was not prejudiced by the admission of the testimony complained of, which at most was but a very trivial error.

It follows that the judgment should be affirmed, and it is so ordered.

Affirmed.

Mr. Chief Justice McBride and Mr. Justice Bamset concur.