State v. Huggins

The opinion of the court ivas delivered by Swayke, J.

The defendant was convicted of rape of a child under sixteen years of age. The cas" is presented tons under the one hundred and thirty-sixth section of the (trim *44 inal Procedure act. The substantial reasons urged for reversal ¡are that the evidence failed to show penetration, that it was not proved that the girl was under sixteen years of age, that her story was not corroborated, and that the court-erred in admitting evidence of a declaration of the mother as to the child’s age without proof that the mother was dead or out of the jurisdiction, and evidence that in her complaint she mentioned the name of the defendant. As to the evidence of penetration, it is enough to say that if the jury believed the girl’s ■testimony the fact- was proved. Further details than .she gave were unnecessary. The medical evidence tended .to ■corroborate her.

The girl herself testified to her own age and, although at ■one t-ime on her cross-examination she said that all she knew ¡about it was what Mr. Williams told her, she also said on her recross, when asked whether that was all she knew, that her mother told her. . It is well settled that one may testify to his own age (Wigm. Ev., § 667); even the prosecutrix in án action for "rape may do so when it is essential 'to prove that she is under the age of consent. Com. v. Phillips, 162 Mass. 504 ; State v. Bowser, 21 Mont. 133 ; People v. Colbath, 141 Mich. 189 . The reasons for permitting testimony of this character have been nowhere better stated than by Mr. Justice Dixon, speaking for the Court of Errors and Appeals, in Hancock v. Catholic Benevolent Legion, 40 Vroom 308 . Testimony as to the exact birthday must, as he says, rest- on hearsay, but testimony as to the •approximate age rests on one’s own recollection; by counting the years of memory-and adding the short period that ante-d'ates memory' — a period which all normal persons can from -observation and experience approximate with much accuracy, .-a person can form a sufficiently accurate estimate of his age. It has even been held that a witness in & criminal case may testify as to the date of his birth. Com. v. Stevenson, 142 Mass. 466 . As Professor Wigmore says: “Practical^ a person’s "belief on this point has a satisfactory basis. Courts have commonly preferred to accept this practical certainty rather than 'to insist on academic nicety.” In a doubtful' case where the *45 precise ago to a day becomes important, it would be the duty of the court to warn the jury that the testimony of a person as to his birthday must be considered with caution, but that is,not the present case. The testimony of the prosecutrix, and of the physician was enough to prove that she was under sixteen. The evidence of Williams as to the 'records of his institution showing the age given by the mother when the child was entrusted to his societjq was incompetent, but as-there was competent proof of the fact and it was not contradicted as it might have been by testimony that the development of the girl indicated a greater age than fourteen, we-think there was no manifest wrong -or injury done the defendant by admitting the testimonjo

The objection to the complaint made by the girl is that details were permitted contrary to tire rule of State v. Ivins, 7 Vroom 233 . We cannot in this court consider whether that rule goes too far, as has been held in more recent cases elsewhere. Wigm. Ev., § 1134ff, § 1760; Reg. v. Lillyman, 65 L. J. M. C. 195. The trial judge followed the rule of the Ivins- case, as we understand it, and excluded all details except that he permitted ihc- prosecutor of the pleas to ask if the girl made a complaint against the defendant. There is nothing in the opinion in the Ivins case which makes it improper io put the question whether the prosecutrix complained of the prisoner, and a consideration of the history of' the rule and the practical effect of evidence of the complaint, leads us to think it permissible. The custom of excluding the details of the complaint, the history of which is traced by Professor Wigmore, was referred to by Baron Parke in Reg. v. Walker, 2 M. & Rob. 212. He there said: “The usage has obtained that the prosecutrix’s counsel should only inquire generally whether a complaint was made by the prosecutrix of the prisoner’s conduct towards her, leaving the counsel of" the latter to bring before the jury the particulars of the complaint by cross-examination.” In Reg. v. Osborne, C. & M. 622, however, Creswell, J., held that it was improper to ask the name of the person of whom the prosecutrix complained.. He expressed, however, his difficulty, since it would be com *46 petent to prove .that in consequence of the complaint, the prisoner was apprehended. This practical difficulty must ■exist whatever the°or}r" we adopt as to the philosophical basis .for evidence of such declarations. Unless it relates to the prisoner on trial, the evidence is of no' value, and whether his name is mentioned or not, the jury cannot avoid the inference that the complaint made by the prosecutrix was a complaint of the prisoner. The Court for Crown Cases Reserved, in Reg. v. Lillyman (1896), 65 L. J. M. C. 195, in an elaborate judgment by Hawkins, J'., in which' Lord Russell of Killowen, Baron Pollock, Cave, J., • and Wills, J., concurred, explained Justice CreswelPs ruling in Reg. v. ‘Osborne, upon the ground that he held only 'that the statement of the prosecutrix was not part of the res gesta; and they held that it was not even an authority against admitting ■the details of the complaint. We are not required to go as far as that. It is enough for us that since the jury could not but have inferred that the complaint was of the prisoner, no manifest wrong and injury was done him by permitting the '■witness to say so.

The judgment is affirmed.