#### The State of Ohio, Appellee, *v.*Treat, Appellant.

(Nos. 6973 and 6999

Decided October 11, 1948.)

*Mr. Carson Hoy,*prosecuting attorney, and *Mr. Thomas Stueve,*for appellee.

*Mr. Harry M. Wasserman*and *Mr. JoJm L. Daley,*for appellant.

*185I-Iildebrant, J.

In the Court of Common Pleas, without a jury, defendant, appellant herein, was convicted of taking indecent liberties with a six-year-old girl and acquitted on a second count of indecent exposure.

On being offered as a witness, the child was by the court determined not'qualified to be a witness.

Over objection, the girl’s mother was permitted to testify that on Tuesday night, which was two days after the date of the alleged offense as charged in the indictment, the little girl told her that she was afraid of the defendant because he had hurt her on Sunday,, and, in substance, that the defendant had exposed his person in her presence.

Also, over objection, a fourteen-year-old girl was permitted to testify, without fixing the time, that the little girl had told her the defendant was a nasty person.

The principal error claimed is that the above testimony was incompetent as hearsay and not a part of the *res gestae.*

From the meagre narrative bill of exceptions, it appears that on Sunday, the date of the alleged offense,, on being returned to her home from an automobile excursion into the country with defendant and her younger brother, the little girl made no complaint,, nor was there anything about her actions or demeanor to indicate that anything unusual had happened to her on that day. The same was true on the next night when defendant was present with the whole family for a considerable time. It was not until the next night that the statement, which was admitted in evidence through the mother’s testimony, was made, which resulted in an examination of the child at a hospital and subsequent prosecution of the defendant.

*186The doctor who examined the child found a superficial condition of her anatomy to exist and stated that he was unable to give the cause thereof, and that the •condition could be the result of various causes, including a propensity for a child of that age to create the -condition herself.

So from this record there is no evidence of the corpus delicti or to connect the defendant therewith, except the inexplicit statement of the child admitted through the testimony of the mother.

Since there were two earlier opportunities to speak, dhe statement of Tuesday night cannot be considered ■competent as part of the *res gestae,*as was the situation in the case of *State*v. *Lasecki,*90 Ohio St., 10, 106 N. E., 660, L. R. A. 1915E, 202, Ann. Cas. 1916C, 1182. In the comment on the Ohio statute followed by the court in the instant case in its determination that the child here was not competent to testify, it is stated in •42 Ohio Jurisprudence, 118, Section 107:

‘ ‘ The statute cannot be circumvented by permitting .another witness to testify to declarations made to him by a child who was too young, under the statute, to be .a witness, although the utterance or exclamation of a •child too young to be competent as a witness, which was made immediately after the transaction, is competent as a part of the *res*gestae.”

The statement, being offered through the mother •as evidence in chief, falls within the rule set forth in *Dunn*v. *State,*45 Ohio St., 249, 12 N. E., 826, wherein It is stated in the second paragraph of the syllabus:

“Such declarations are not admissible as evidence in chief to prove the commission of the offense, but -only to corroborate the testimony of the injured person given in court.”

It was held in *Hornbeck*v. *State,*35 Ohio St., 277, 35 Am. Rep., 608, in the first paragraph of the syllabus:

*187“On the trial of an indictment for assault, with intent to commit a rape, on the person of a female,, who, by reason of being an imbecile, was incompetent to be sworn as a witness, the declarations of such female, made shortly after the assault, are incompetent to prove the commission of'the offense.”

In *State*v. *Segerberg,*131 Conn., 546, 41 A. (2d),. 101, 157 A. L. R., 1355, it is stated, as reported in A. L. R.:

“On the trial of a charge of indecent assaults upon an eight-year-old child deemed too immature to testify, the rule of ‘constancy of accusation’ does not warrant the reception of the testimony of others as to conversations with the child, not a part of the *res gestae,.*in which she recited the details of the alleged assaults,, such rule being applicable only when the complainant has testified.”

We, therefore, conclude that the admission of the’ testimony in the manner here was error, prejudicial to the defendant, and, there being no evidence of the corpus delicti or of defendant’s connection therewith otherwise appearing, the court should have dismissed the defendant at the conclusion of the state’s case.

The judgment is reversed with instructions to dismiss the defendant.

*Judgment reversed.*

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.