Opinion
No. 3573.
Decided February 21, 1946.
In a rape case the admission of testimony by the complainant's mother, that four days after the alleged assault and after the arrest of the defendant the complainant related certain facts to her concerning the assault, constituted reversible error since the complainant's statements were not so spontaneous as to be part of the res gestae. In such case, the mother's testimony was hearsay and was inadmissible to prove the defendant's guilt.
INDICTMENT, for rape upon a woman child nine years old. Trial by jury. Verdict of guilty of assault with attempt to commit rape. The defendant excepted to the admission of testimony by the child's mother that four days after the alleged assault the child told her about it and related some of the details, to which the mother was permitted to testify before the child took the stand. Later the child testified in general terms that the defendant did "something naughty," but without relating to the jury any of the details. Transferred by Wheeler, J., upon the defendant's bill of exceptions.
Arthur Olson, County Solicitor (by brief), for the State.
Howard B. Lane (by brief), for the defendant.
Whether or not the testimony concerning the fact of the complaint by the child could be received before she testified need not be decided. The mere fact that she made a seasonable complaint is admissible, though hearsay, for either of two purposes: (1) to contradict the inference of the incredibility of the complainant's testimony that might be drawn from her failure to complain seasonably of the assault, or (2) as bearing on the complainant's state of mind with reference to consent to the assault. In the case of a child below the age of consent, the latter is immaterial. But even a prompt complaint is no evidence at all of the truth of the facts therein stated, and we have held it error to permit an argument to the jury to that effect. "The complaint was no more than hearsay and its early making did not improve its quality as such or serve to show that its averments were true." State v. Wargo, 83 N.H. 532, 535. Insofar as the mother's testimony was hearsay, it was inadmissible to prove the defendant's guilt. State v. Knapp, 45 N.H. 148, 155; Wig. Ev. (3d ed.), s. 1136. The evidence is undisputed that the defendant was arrested four days after the alleged crime, that the sheriff talked with the child that day, and that thereafter the child made the declaration to her mother. This does not permit a finding that the declaration to the mother was so spontaneous as to be admissible as a part of the res gestae. Bennett v. Bennett, 92 N.H. 379.
New trial.