
    Orlando Burt v. The State of Ohio.
    1. "Where the testimony of the prosecutrix, in a rape case, charges the crime upon the defendant, it is competent, in giving in evidence her declarations made immediately after the alleged transaction, in corroboration of her testimony, to show that in and by said declarations-she charged the crime upon the defendant.
    2. The rule, that unless the party propounding a question to a witness discloses at the time what he expects to prove, the erroneous rejection of the question by the court will not he regarded as prejudicial to the party, does not apply where a witness, on cross-examination, is asked, if he has not made statements inconsistent with his testimony in chief, the purpose and object of the inquiry being sufficiently manifest without such disclosure.
    Error to the Common Pleas of Huron county.
    This was an indictment for rape. The prosecuting witness, Susan Hale, testified to the commission of the crime by the prisoner in the public highway, about dusk in the evening of the 6th of March, 1873. After her examination, the prosecuting attorney called several witnesses for the-purpose of corroborating Mrs. Hale, and proved by them fier declarations made the same evening, immediately or soon after the alleged transaction, in which she gave an account of the same, charging the defendant with being the guilty party. This corroborating testimony was not objected to by the prisoner’s counsel, who cross-examined the witnesses in relation thereto. The prosecuting attorney then called another witness, Mrs. Parker, and offered to prove by her similar declarations, made by Mrs. Hale to the witnesses about the same time. To this the counsel of Burt objected, but without assigning any ground of objection. The court remarked that such evidence could only be used to corroborate the testimony of Mrs. Hale, and that if defendant’s counsel admitted that sufficient evidence had already been introduced for that purpose, the evidence-so offered would be rejected. The defendant’s counsel declined to make the admission, and the evidence was received, the counsel taking exception to the order of the court.
    The state then called as a witness Charles L. Hurlburt,. the constable who arrested the defendant upon a warrant. He testified that after the arrest of the defendant, he took him to the house of Mrs. Hale, .to see whether she would identify him as the guilty party, and that she did so identify him, and declared in his presence that he was the man who had perpetrated the outrage. On cross-examination, the counsel of the defendant asked the witness if he did not say to Mrs. Hale, at the close of her examination of the defendant: “Mrs. Hale, as you can not identify him and swear to him positively, there is no use in my holding him and taking him to Norwalk.” This question was objected to by the prosecuting attorney; The objection was-sustained by the court, and the witness was not permitted to answer. Counsel for the prisoner further asked the witness if he did not subsequently, at a time and place named,, make the statement that Mrs. Hale had said, at the time of the said interview and examination of defendant at her house, that “she could not swear to him positively, or words to that amount.” This question also was objected to, and the objection was in like manner sustained. To-which rulings of the court counsel for the prisoner excepted.
    The defendant was convicted, and sentenced to the penitentiary, and he now insists that these several rulings of the court were erroneous, to his prejudice. He also alleges other errors in the proceedings; but the view of the case taken by the court renders it unnecessary to notice them in this report.
    
      Walker & Bailey, for plaintiff in error:
    1. The testimony of Mrs. Elon Parker was incompetent; the declarations of the injured female, that are admissible in corroboration do not extend to proof of what she said as to who did it. Johnson v. The State, 17 Ohio St. 593; Laughlin v. The State, 18 Ohio, 99; McCombs v. The State, 8 Ohio St. 643. We ask the court to examine 3 Greenl. Ev., sec. 213; Roscoe Crim. Ev. 23; 2 Bish. Crim. Pro. 963, sec. 961; 1 Phil. Ev. 184; Regina v. Osborne, 1 Car. & M. 622; Same v. Alexander, 2 Crawf. & Dix. C. C. 126; Same v. Magraw, 9 Car. & Payne, 420; Weldon v. The State, 32 Ind. 81; 2 Whart. Am. Crim. Law, sec. 1150; 11 Georgia, 225; 41 N. Y. 265; Thompson v. The State, 38 Ind. 39.
    2. The question put to Charles L. Hurlburt, on cross-examination, touching what he had said to Mrs. Hale, was competent. It related to the matter on which he had testified in chief, and it sought the remainder of a conversation of which the state had put in evidence a part.
    3. The question to Hurlburt as to what he had said to Eorsyth Arnold is of the same character.
    See 1 Greenl. Ev., sec. 449 and note 7, and cases there cited.
    
      Estep & Burke, on same side:
    Mrs. Elon Parker’s testimony, as to Mrs. Hale’s statements as to “who had done it,” was inadmissible. The sole question was, “ Was the defendant the man ?” and the evidence was offered for the sole parpóse of corroborating the prosecuting witness as to his identity.
    
    
      It is going far enough to admit her complaint as to the-outrage itself, made recently after the offense was committed, and in connection with marks upon her clothing or person, to be offered to show the fact that an outrage had been committed upon her; but to admit her statements, for the purpose of giving additional weight to her testimony, that a particular person committed the act, violates all sense and reason. There is but little harmony in the cases as to the-reason for admitting the female’s statement or complaint made in any case or for any purpose; but the best considered and most reasonable of them seem to proceed upon the idea that a crime or outrage of this nature is specially abhorrent and shocking to the feelings of a female, and that her statement, made immediately after the offense was committed, in connection with her condition in person and apparel at the time, is admissible to corroborate her statement that the act was committed against her will. That the natural modesty of the sex, and their utter dislike to make any statement or admission against their own purity, is a sufficient guaranty for the truth of what they may say in regard to the act immediately after its commission. It shows such evidence rests upon the fact that the complainant is as female, and that the outrage complained of was-against her as a female. The reason of the rule is satisfied,, therefore, when her statement as to the outrage is admitted.
    
    "When a charge of rape is made by the woman, it becomes important to know whether the act was committed against her will or not; and for the purpose of determining-that fact, her complaint, if made immediately, or at the first opportunity, has been admitted to show that she did' not consent to the intercourse, but for no other purpose.
    
    Her statement to others, as to who did it, how he was dressed, his complexion, height, and other means of identification, are not matters in any degree peculiar to her sex,. and are not, therefore, any more admissible to corroborate-her upon the point of identity, than similar statements-made by a man as to who assaulted, beat, or robbed him. No case has fallen under our observation where such evi— dence lias been admitted. We feel confident that no well-considered case to that, effect can be found. The contrary has been expressly decided in Baccio v. The People, 41 N. Y. 265; R. v. Osborne, Car. & M. 622; R. v. Stroner, 1 Car. & K. 650; 2 Arch. Crim. Prac. & Pl., by Waterman, 306-4, 307, and note on 307-3; Rex v. Clarke, 2 Stark. N. P. C. 241; 3 Stark. Ev. 951; Rex v. Magraw, 9 C. & P. 420; Ib. 471; 1 Denio, 21; 10 Gratt. 722; 2 Bishop Crim. Pro. 963, sec. 961; 38 Ind. 39; 3 Greenl. Ev. 176.
    The Common Pleas clearly erred in ruling out the question to Hurlburt on cross-examination.
    All reasonable means should be allowed a party to show, upon cross-examination, that the witness is mistaken or corrupt. And what means could be more effectual to show that a witness was in error, than to compel him to admit, that at the same interview, and immediately after it, he had himself made-statements utterly inconsistent and in conflict with the facts sworn to by him? An admission that he did so state, taken in connection with the confessed fact, that he did not take the defendant to Norwalk after his arrest, but did let him go, would have utterly discredited the statement made by him of the identification by Mrs. Hale.
    
      George W. Knapp, prosecuting attorney, for the state:
    The question to Hurlburt as to what he said to -Mrs. Hale was incompetent. The bill of exceptions does not show what the defendant would have offered to prove if Hurlburt bad answered in the negative.
    The substance and purport of this question is : What did you (Hurlburt) conclude, as to Mrs. Hale’s certainty in identifying him (Burt) as the man who had outraged her, from her statements made at the examination ? We think that the objection was well taken. Opinions are only admissible when the nature of the case involves a question of science, art, or skill. Princeton Ins. Co. v. Harmer, 2 Ohio St. 457.
    Hid the court err in sustaining the objection of counsel for the state to the question put to the witness, Chas. B Hurlburt, relative to what he had said ?
    This testimony was overruled, because it did not tend to impeach Hurlburt. He had not sworn that Mrs. Hale could, swear to Burt positively, and so it would not contradict him to allow this question to be asked.
    
      L. J. Critchfield, on same side:
    I. As to the alleged error in admitting the testimony of Mrs. Parker giving the declarations of Mrs. Hale as to the rape, and as to Burt being the guilty man.
    1. Such declarations are competent, not to prove the main facts, but as corroborative of the testimony of Mrs. Hale as a witness on the stand testifying on the same subject. Johnson v. The State, 17 Ohio, 593; Laughlin v. The State, 18 Ohio, 99; McComb v. The State, 8 Ohio St. 646; 2 Bishop on Crim. Proced. 519, sec. 963, n. 3; Phillips v. The State, 9 Humph. 246; State v. Peter, 14 La. An. 521, 523; Regina v. Walker, 2 Moody & Rob. 212; 2 Starkie on Ev., pt. 2, pp. 950, 951; The People v. McGee, 1 Denio, 22; 4 Bla. Com. 213; The State v. Delboef, 8 Conn. 93, 99.
    It would' be as unnatural for the prosecutrix to fail to name the person who committed the outrage, as to fail to state that an outrage was committed.
    See also the following authorities cited by the other side: Thompson v. The State, 38 Ind. 39; Baccio v. The People, 41 N. Y. 265, 268, 270; Roscoe’s Crim. Ev. 24; Stephen v. Georgia, 11 Ga. 233.
    2. If the court erred in overruling the objection to Mrs. Parker’s evidence stating the particulars of Mrs. Hale’s complaint, it was a harmless error.
    Other witnesses testified to the same declarations without objection. So that the verdict is sustained, and must have been the same, if the objection had been sustained. Hilliard on N. Tr. 61, 413, n.; 2 Gr. & Wat. N. Tr. 671, 672. “ In fact such proof was fully made ” without Mrs. Parker. Gandolfo v. The State, 11 Ohio St. 116.
    II. As to the testimony of Hurlburt, the constable, and the alleged error in sustaining the objection to the two' questions to him on cross-examination.
    In regard to Hurlburt’s testimony :
    1. So far as he details Mrs. Hale’s declarations, they were made in the presence of Burt. She declared in Burt’s presence that he was the guilty man. Competent as in his presence ; not given to corroborate her, but as a substantive fact. Not like Mrs. Parker’s testimony as to declarations.
    2. The defense did not ask the questions to lay the foundation for an impeachment of Hurlburt by persons who-might have heard him make the statement implied in the-questions. Not so shown.
    3. Were the questions asked to discredit Hurlburt by his answers to the questions? The record does not state the purpose of the questions, nor what it was pnqnosed to prove-by the answers sought. It does not appear that it was something material, and the rejection of which as evidence was prejudicial to the defendant. Gandolfo v. The State, 11 Ohio St. 116. The facts sopght to be proved by the questions should have been stated and should be shown by the record. Himrod Furnace Co. v. C. & M. R. R. Co, 22 Ohio St. 451, 461; Scovern v. The State, 6 Ohio St. 288; Hollister & Smith v. Reznor, 9 Ohio St. 1.
    4. If the questions had been answered in the affirmative and had discredited Hurlburt as a witness, and his testimony had been rendered worthless, still the verdict must have been- the same. Therefore the judgment will not be reversed. Hilliard on N. Tr. 61, 413, note; 2 Gr. & Wat. N. Tr. 671, 672; Gandolfo v. The State, 11 Ohio St. 116.
   Welch, J.

In overruling the objection taken to the testimony of Mrs. Parker, we think the court committed no error. It is well-settled law in Ohio, that the declarations of the prosecuting witness, made immediately or soon after the commission of the alleged rape, may be received in evidence. They are to be received, not as evidence of their own truth, not as evidence of the guilt of the defendant, but merely in “corroboration” of the prosecuting witness, in. the sense that they remove from her testimony a cloud of suspicion that might otherwise rest upon it. It was for this, purpose exclusively that the court below admitted the declarations in question. The ground of objection to their-admission was not stated by counsel at the time they were offered. The fact that sufficient evidence had already been given to show that complaint -was made, although suggested by the court as a probable ground of the objection, was disavowed by the counsel. The ground now assumed is, that the court allowed the witness to go too far-into the details of the complaint, and particularly that the witness was allowed to state the fact that the prosecutrix declared the defendant to be the guilty party. Undoubtedly the safer and better "rule, in the generality of cases, is, to limit the prosecution to a general statement of the fact that complaint was made, or the substance of her declarations, and leave to the prisoner to bring out the details,, if he chooses so to do. How far the prosecution shall be-permitted to go into details, in giving the declarations of the female, must, to a great extent at least, be left to the-discretion of the court. "Whether the court might, in any given case, so far abuse that discretion as to render the proceeding erroneous, we need not now decide. It is enough for this case to say, that we are by no means prepared to lay down as law the .rule insisted upon by counsel, namely, that in proving her declarations, the fact that the prosecutrix charged the crime upon the defendant, should be suppressed. If she was acquainted with the party, and recognized him at the time of the outrage, his name would be-almost the first word she would utter in making her outcry or complaint, and the complaint would be unnatural without it. It is because it is natural for a female to make immediate complaint, when so violated, that the law calls, upon her to show the fact of such complaint, and the law will not require her to make a complaint that is unnatural ;and constrained. We think the court did not err in admitting the testimony of Mrs. Parker.

We are of opinion, however, that the court did err, to >the prejudice of the defendant, in ruling out the questions propounded to the witness Hurlburt, on cross-examination. Hurlburt had testified, on his examination-in-chief, that Mrs. Hale, at the interview referred to, unhesitatingly and unqualifiedly recognized and identified the defendant as the guilty man. He was then asked, on cross-examination, whether he did not, at the close of the interview, say to Mrs. Hale, in effect, that she had failed to recognize or identify the defendant, and also whether he (the witness) did not subsequently say that Mrs. Hale, during the interview, admitted that she could not swear positively that he was the man. This was legitimate cross-examination. The plain object of both questions was to discredit the statements of the witness, by impeaching his veracity or his memory. An affirmative answer to either of the two questions propounded would have directly tended to show, both that the witness had failed to give the whole conversation had between him and Mrs. Hale at the time referred to, and also that he did not then understand her as identifying the prisoner, at least not as identifying him with that certainty, or freedom from doubt, indicated by the witness’ testimony in chief. We are clear in the conviction that the defendant was denied the benefit of a full and fair cross-examination of the witness, and that the court were in this respect in error. It is argued, however, that the error is not shown to be prejudicial to the defendant, for the reason that his counsel did not at the time disclose what they expected to prove by the witness. I know of no case where the rule requiring such a disclosure has been applied to a cross-examination. Whether such a case might arise, need not now be decided. We are satisfied it has no just application to this case, where the object and purpose of the inquiry was as manifest without any disclosure as it could possibly be made by an express avowal of counsel. Being an adversary witness, counsel could not be presumed to know what his answer would be. The purpose and object was to impeach the witness. How this object was to be effected, counsel could not tell until they should hear the .answer. If he answered affirmatively, he would stand impeached by the admission; if he answered negatively, then, and not till then, a foundation would have been laid for contradicting his testimony. We are of opinion, therefore, that the court, in ruling out these questions propounded to the witness on cross-examination, erred, to the prejudice of the plaintiff in error.

Judgment reversed, and cause remanded for new trial.  