People v. Black

The defendant was convicted on an information charging him with rape on his 20-year old daughter, Vera Black. At the time when the offense is alleged to have been committed the defendant lived with his wife and two children, a son and the daughter, Vera, in the township of Watertown, in the county of Clinton. When arraigned he pleaded not guilty and on the trial, as a witness in his own behalf, he insisted that he was innocent. His case is here on exceptions before sentence. The facts necessary to a discussion of the errors assigned will be stated in the opinion.

The principal question presented by the record relates to the admission of testimony.

"Did the court err in receiving over defendant's objection testimony as to a complaint made by the prosecutrix to a neighbor woman in regard to previous acts of rape?"

On direct-examination she testified:

"Q. When did you first make complaint to any one other than your mother about these assaults?

"A. February 4, 1924.

"Q. February 4th, last?

"A. Yes, sir.

"Q. And to whom did you make complaint?

"A. Mrs. L.S. Grisson, the woman I stayed all night with on the 4th."

The rape for which the defendant was being tried is alleged to have been committed on the 9th day of February, 1924. The prosecutrix testified to a great many earlier acts of the same character beginning in December, 1919, when she was 16 years of age and continuing at frequent intervals until the time of the act in question. The last assault prior to the one for which he was tried took place the latter part of January, 1924, and the complaint to Mrs. Grisson was on February 4, 1924. When the prosecuting attorney asked the question, "When did you first make complaint to any one other than your mother about these assaults?" he referred to the numerous assaults of which she had testified as having been committed prior to and including that in the latter part of January, 1924. It is a well established rule that in prosecutions for rape and kindred offenses against women the prosecutrix may be asked whether she made complaint of the assault and when and to whom. This rule applies to complaint of previous assaults by the same defendant of the character of that for which he is being tried. Counsel for the defendant do not here question the general rule, but claim that the testimony in this case is not admissible in the absence of some explanation of the delay in making the complaint; that it should be excluded because of the lapse of time between the previous assault in the latter part of January, 1924, and the making of the complaint on the 4th day of February. On this question the courts are not altogether in agreement. Some have held that mere lapse of time is not the test of the admissibility of evidence of this character, that delay in making the complaint goes only to the weight of the evidence and is for the jury; others have inclined to the view that whether the time intervening should exclude the testimony is a question of law for the court. Professor Wigmore suggests that under the theory that the purpose of the testimony is merely to negative the supposed silence of the woman, the fact of complaint at any time should be received. The reason of the rule which permits such testimony would seem to exclude its use unless the complaint is immediately or recently made, or some reasonable explanation given for the delay. It has been said that it is so natural as to be almost inevitable that a woman, upon whom such a crime has been committed, will make an immediate complaint to some of her relatives or other close friends. Justice GRANT said in People v. Marrs, 125 Mich. 379, "It is a strong circumstance against a woman that she made no immediate complaint." We think the rule that excludes this testimony unless the complaint is immediate, or there is some explanation for the delay in making it, rests on reason and justice, and should be adhered to by the courts of this State. If the delay is explained it becomes a question for the jury. If not explained it is for the court. In People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854), the court said:

"The lapse of time occurring after the injury, and before complaint made, is not the test of admissibility of the evidence, but it may be considered as affecting its weight; and when complaint is not made promptly, the delay calls for explanation before the court will admit it."

It would seem that the first part of the above quotation is inconsistent with the latter part. But we take it that what the court meant in the first statement was that lapse of time alone is not the test because it may be explained and when explained it is for the jury to say what weight shall be given to it as evidence. It is the test unless the delay is excused or explained. Depending on the facts and circumstances of the case there may be a departure from this rule where the female is of tender years or under the age of consent. It should in no other case be extended. In the instant case the prosecutrix clerked in the Grisson store from September, 1923, to February. Some of the assaults were committed during that period. She had an opportunity to complain but did not do so until February 4th. No explanation as to why she did not promptly complain was offered. In the absence of some explanation excusing the delay the court should have excluded her testimony as to the fact of complaint to Mrs. Grisson. Because of this error the conviction must be reversed.

Other errors urged by counsel we do not discuss because they are not apt to arise on a new trial. We have examined them, however, and are of the opinion that they do not constitute reversible error.

The conviction is reversed and a new trial granted.

BIRD, MOORE, STEERE, and WIEST, JJ., concurred with McDONALD, C.J.