State v. Casper

138 A. 633, 33 Del. 432, 3 W.W. Harr. 432, 1926 Del. LEXIS 28

Opinion

Harrington, J.

If the charge were for rape or for assault with intent to commit rape it would be material for the defense to show that no complaint was made by the prosecuting witness shortly after the commission of the alleged act. Chamberlayne on Evidence, vol. 4, § 3037; Wigmore on Ev., vol. 2, § 1135; State v. Daugherty, 63 Kan. 473, 65 P. 695.

This is true because a failure to complain would affect the credit of the witness. State v. Wolf, 118 Iowa 564, 92 N. W. 673; Wigmore on Ev., § 1135; Chamberlayne on Ev., vol. 4, § 3037.

For the same reason, such evidence would, also, be material on charges of that character on cross-examination; but the charge here is for using a female child under the age of consent (Rev. Code 1915, § 4709) and it has appeared that the alleged act was committed with the consent of the prosecuting witness, who was apparently not a mere child either in development or years.

Under such circumstances, it is not reasonable to assume that complaint would ordinarily have been made; a failure to make such complaint would not, therefore, affect the credit of the witness. For that reason, the objection is sustained. Wigmore on Ev., § 1135; Chamberlayne on Ev., vol. 4, §§ 3037, 3041; State v. Griffin, 43 Wash. 591, 86 P. 951, 11 Ann. Cas. 95, 98.

Note. See State v. Grant, 3 W. W. Harr. (33 Del.) 195, 133 Atl. 790; Bove v. State, 3 W. W. Harr. (33 Del.) 229, 134 Atl. 630; Burton v. Natural Gas & Petroleum Corporation, 4 W. W. Harr. (34 Del.) —, 143 Atl. 254.

For admissibility of complaint in an indictment for an assault with intent to commit rape, see State v. Brewer, 1 W. W. Harr. (31 Del.) 363; 114 A. 604.