Harnish v. State

Morton, J., delivered the opinion of the Court. The appellant, Charles Burnell Harnish, was convicted in a non-jury trial in the Circuit Court for Baltimore County of committing an unnatural and perverted sex act. He received a sentence of five years under the jurisdiction of the Department of Correction. In this appeal, it is contended, and we agree, that the ⁵⁴⁸ lower court committed reversible error in permitting the mother to relate a conversation she had with the victim of the alleged crime, her five year old son, concerning what occurred between him and the appellant some eleven days earlier.

The record indicates that late in the afternoon of January 3, 1969, the victim and his seven year old foster brother were given permission by their mother to visit the appellant, a 54-year old neighbor, who had invited them to his apartment dwelling to see “his Christmas tree and Christmas lights.” The mother was permitted to testify, over objection, that on January 14, 1969, the appellant came to her home, stated that he had a “swivel holster” which her son, Edward, could have for his toy pistol and, if agreeable with the mother, to “send him over.” According to the mother: “A. * * * I said, okay, and I started to get Eddie ready to go, and Eddie said, ‘Mommy, you are going to get mad at me’, and I said, ‘Why?’ He says, ‘You are going to get mad at me’. And I says, ‘No, I won’t.’ He says, T don’t want to go’. And I says, ‘Why not?’ And he told me, he says that Mister — he says, ‘Charlie makes me suck on his wee-wee’. Q. All right, now, what does Edward’s word wee-wee, mean?

A. Penis of a man. Q. Then, what else did Edward say, if anything? A. He said — and I asked him about it, and I asked him how many times, and he said, ‘Three’. I says, ‘More than this last time’.

I asked him when. He says when he took him over there the last time, and then I went on to ask him some questions about when, how many times, three times, and asked him what happened, details about what happened, and I didn’t let him go. I wouldn’t let him go, ⁵⁴⁹ and I was afraid he would come back, so I left the house with Eddie.” At the conclusion of this testimony, counsel for appellant renewed his objection and moved that it be stricken from the record on the ground that it was inadmissible hearsay testimony and that “the time lapse precluded” its admissibility as a part of the res gestae. It is, of course, well settled that out-of-court declarations or utterances made by the victim of a crime may be related testimonially by a witness to whom they were addressed or overheard, notwithstanding the rule prohibiting hearsay testimony, if the statements come within the scope of the so-called res gestae rule.

Although it has been said that “the term ‘res gestae’ is not susceptible of any definition to satisfy the protean adjudications which ground their conclusions under its name”, Annot., 83 A.L.R.2d 1368 , 1371, the term “may broadly be defined as matter incidental to the main fact and explanatory thereof and may include acts and words which are so closely connected therewith as to constitute a part of the transaction; and such acts and words must be spontaneous and so related to the occurrence in question as reasonably to appear to be evoked and prompted thereby.” Annot., 19 A.L.R.2d 579 , 582. Spontaniety is an essential ingredient since the basis for the admission of declarations under the res gestae rule is the belief that spontaneous and instinctive utterances, made without opportunity or time for reflection or deliberation, are more likely to produce a true and accurate picture of the transaction or event of which they form a part. See Hall v. State, 5 Md. App. 599, 604-605 . This Court, in Reckard v. State, 2 Md. App. 312, 316 , framed the rule in these terms: “* * * [W]hether a declaration is a part of the res gestae depends upon whether the declaration represented the facts talking through the party or whether the party was talking about the facts, since res gestae comprehends a sitúa ⁵⁵⁰ tion which presents an occurrence sufficient to produce a spontaneous and instinctive reaction under such circumstances as to show a lack of forethought or deliberate design on the part of the declarant. “To constitute res gestae an utterance need not in all strictness be