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01/07/76 PEOPLE v. TAYLOR

January 7, 1976

PEOPLE
v.
TAYLOR



Appeal from Genesee, Harry B. McAra, J.

R. B. Burns, P. J., and D. E. Holbrook and D. F. Walsh, JJ.

SYLLABUS BY THE COURT

1. -- Evidence -- Suppression of Evidence -- Consciousness.

Evidence that a defendant tried to suppress evidence is admissible against him as an indication of his consciousness that his case is weak or unfounded.

2. Witnesses -- -- Rape -- Evidence -- Hearsay Testimony -- Details of Crime -- Res Gestae -- Tender Years.

Witnesses may properly be allowed to testify that a prosecutrix in a rape case complained of the rape but they may not give hearsay testimony of the details of the crime unless the whole of the statement is strictly a part of the res gestae and therefore admissible under the general rules of evidence, or unless the victim is of tender years.

3. -- Evidence -- Hearsay -- Tender Years Exception -- Details of Crime -- Rape -- Fathers -- Formation of Reluctance.

A 13-year-old victim of rape was not removed from the protection of the "tender years" exception to the rule barring hearsay evidence of the details of the rape where the defendant was the victim's father and the evidence indicated that he had been having intercourse with her for at least four years; the victim's reluctance to tell of these events had been fully formed during the period in which she was clearly of tender years.

4. Rape -- Instructions to Jury -- Date of Offense -- Alibi Defense -- On or About Instruction -- Harmless Error.

A charge to a jury that a defendant charged with statutory rape of his 13-year-old daughter must be found to have had sexual relations with his daughter "on or about" the date charged in the complaint in order to be found guilty did not deprive the defendant of his alibi defense for that date and any error was harmless where the record reveals that it was extremely unlikely that the jury misconceived the date of the offense to find the defendant guilty of a combination of prior illicit acts to which the complainant alluded during testimony.

The opinion of the court was delivered by: Burns

George H. Taylor was convicted of statutory rape. Defendant appeals.

Defendant was convicted by a jury of statutory rape, MCLA 750.520; MSA 28.788. Complainant is defendant's daughter. She testified that her father had been having sexual intercourse with her on a regular basis for four years, a period during which she was 9 to 13 years of age. Defendant was charged with and convicted of a specific incident of rape that occurred on October 27, 1973, at which time his daughter was 13 years, 8 months.

Defendant first contends that testimony attempting to link him to a shooting incident on the night before trial was sufficiently prejudicial ...


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