People v. Noble , 23 Mich. App. 100 ( 1970 )

23 Mich. App. 100 (1970) 178 N.W.2d 118

PEOPLE
v.
NOBLE

Docket No. 7,234.

Michigan Court of Appeals.

Decided March 31, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

Brian Einhorn, for defendant on appeal.

Before: LESINSKI, C.J., and QUINN and V.J. BRENNAN, JJ.

PER CURIAM.

Defendant Larry Noble was convicted in recorder's court for the city of Detroit of assault with intent to commit rape.^[*] The defendant waived trial by jury.

The prosecutrix, a 70-year-old woman, testified to having rented an apartment where the defendant lived and worked as a janitor. On June 3, 1968, the day she moved in, defendant followed her inside her apartment, demanded sexual intercourse, prevented her escape by holding a knife to her throat, knocked her to the floor, and then left when she screamed. She remained in her apartment the remainder of the evening and through the next morning, when, still in a highly excited state, she related the incident to the caretaker. The caretaker called the police.

Defendant argues that testimony of the caretaker relating her conversation with the prosecutrix 12 hours after the incident was hearsay and that it does not qualify for admission under the res gestae exception. In People v. Dickinson (1966), 2 Mich. App. 646, 650, this Court incorporated language found in People v. Kayne (1934), 268 Mich. 186:

"No inflexible rule has ever been and probably never can be adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances incident thereto * * *."

The record in the present case clearly establishes that the prosecutrix was highly excited and upset when she made the declarations. Further, the possibility of another attack may have caused the delay in the prosecutrix' detailing of the incident. Under such circumstances we cannot say that the statement was so remote in time as not to be a part of the res gestae of the crime. Once this determination is made both the fact and the details of the complaint are admissible in evidence. People v. Woodward (1970), 21 Mich. App. 549.

Since we find no error in the admission of certain statements under the res gestae exception, we need not review the ancient rule of the common law that the fact of complaint by a victim of rape can be shown in corroboration of the prosecutrix but the details can not. See People v. Baker (1930), 251 Mich. 323, 324.

NOTES

[*] MCLA § 750.85 (Stat Ann 1962 Rev § 28.280).