State v. Twyford , 85 S.D. 522 ( 1971 )

WOLLMAN, Judge,,

(special concurrence).

I concur in the result reached by the majority and in so much of the opinon as deals with the proof that the young girl was not the wife of the defendant at the time of the offenses. I do not believe, however, that the conversation delayed complaints by children in cases involving sexual offenses. I do not believe, however, that the converscation which occurred between the young girl and her mother on January 6, 1969 was admissible on the theory that it constituted a delayed complaint of the offense. The record does not indicate that the statement by the young girl was in the nature of a voluntary utterance or that it was made under circumstances which would suggest that it was the result of some long pent-up desire to speak the truth.

Although I believe the trial court erred in permitting the mother to testify about the conversation of January 6, 1969, this error, when viewed in the light of the entire record, was not so prejudicial to the defendant as to require a reversal. This court has said that “Prejudicial error is such error as in all probability must have produced some effect upon the final result of the trial, namely the verdict of the jury.” State v. Ptrkey, 1910, 24 S.D. 533, 124 N.W. 713. See also State v. Kingston, 1970, 84 S.D. 578, 174 N.W.2d 636.

The mother did not testify as to any specific details of the offense as did the witnesses in the Thorpe case cited in the majority opinion. Thus her testimony did not have the tendency to overemphasize the victim’s testimony to the jury and did not have the effect of allowing eyewitness testimony when there was none. The cases cited in the Thorpe decision involved such egregious errors in admitting testimony that the court had no choice but to reverse. In the instant case the only direct reference in the mother’s testimony regarding the sexual offense was the answer, “Well, about the sexual intercourse, we had talked about that.” Following this answer, the mother was permitted to testify that her daughter told her that the act of sexual intercourse had been with the defendant, whereupon the state ended the mother’s direct examination. Any error in admitting this testimony would appear to be clearly innocuous.