I can not feel that the language used by Mr. Justice CHAMPLIN in People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854), quoted by my Brother McDONALD in his opinion in this case, committed this court to a hard and fast rule that if the complaint of the prosecutrix in this character of cases was delayed, evidence of the fact that the complaint was made is inadmissible unless the delay is excused. If so, the cases cited by Justice CHAMPLIN are unfortunate. He cites State v. Niles, 47 Vt. 82; Higgins v. People, 58 N.Y. 377, and People v. Brown, *Page 53 53 Mich. 531. The Vermont case holds to the contrary. I quote from it what was said on this subject:
"The State called Mrs. Ladd as a witness, and she was permitted to testify against the respondent's objection that Lillian, in response to her inquiries about two months after the alleged commission of the crime, complained to her of the respondent's usage of her as above testified to; by which we understand that Mrs. Ladd testified that Lillian told her the same story that she had testified to in court. Two objections have been urged against the admissibility of Mrs. Ladd's evidence: the first is, that the complaint was not made to her within such a period of time as to make it admissible. Evidence of this character is only admissible as confirmatory of the evidence given by the party upon whom the rape is alleged to have been committed. It was ruled by Holroyd, J., inClarke's Case, 2 Stark. 241, that in a prosecution for rape, the fact of a woman's having made a complaint soon after the assault took place, is evidence. This rule has been embodied into all the text books upon evidence; but it has never been understood that mere lapse of time could be made the test upon which the admissibility of such evidence depended. The time that intervenes between the commission of the crime and the making of the complaint, is a subject for the jury to consider in passing upon the question of the weight that should be given to the evidence; so that this objection was not well taken."
The New York case did not deal with the admissibility of proof but arose on a requested instruction as to the credit to be given the testimony of prosecutrix who had delayed in making complaint. Considering this request it was said:
"Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape, is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can *Page 54 be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. Such is the natural impulse of an honest female. But if instead of doing this she conceal the injury for any considerable time, it naturally excites suspicion of fraud, and tends to discredit her."
In the Michigan case, it was said by Mr. Justice CAMPBELL, speaking for the court:
"Objection was made to the testimony of the mother in showing that on the next day but one after the occurrences the appearance and behavior of the girl were such that she insisted on knowing what was the matter, and the daughter told her what had occurred. We think this was admissible under the previous rulings of this court, referred to on the argument. In all such cases it is desirable to know how soon or in what way the outraged person complains. Its force is for the jury."
I can not feel that as careful a Justice as we know Justice CHAMPLIN to have been would have cited these cases had he intended to go as far as my Brother thinks he did. Nor do I think this court has so construed the Gage Case. In People v.Marrs, 125 Mich. 376, it was cited to sustain the following holding:
"It is a strong circumstance against a woman that she made no immediate complaint. It was competent for the people to show when she did make complaint, and the reason why she had not made it before. It was for the jury to consider this evidence in determining what credit they would give to her story."
In People v. Row, 135 Mich. 505, it was said by Chief Justice MOORE, speaking for the court:
"Mrs. Baxter, a half-sister, was allowed to testify to a conversation with the girl three months after it was claimed the offense was committed, and this is said to be error. Justice LONG, in People v. Duncan, 104 Mich. 464, collates the law applicable to such a *Page 55 case. It was competent to show by Mrs. Baxter the girl had complained of the outrage to her, but it was not competent for her to narrate in detail a long conversation she had with her in relation to the transaction."
Going back to cases preceding the Gage Case and quoting from the syllabi, we find it has been held:
"Delay in making complaint is not a fact belonging to theres gestæ, but is only material as bearing upon the credibility of the prosecutrix; and the credibility of her testimony, like that of other witnesses, is a matter for the consideration only of the jury." Turner v. People, 33 Mich. 363.
"In a prosecution for rape, a question to the complaining witness as to whether she had told the priest or any one else of the outrage, is not objectionable." Maillet v. People,42 Mich. 262.
Section 273, 1 Wharton's Criminal Evidence (10th Ed.), says:
"In prosecutions for rape where the injured woman is a witness, it was formerly material to show that she made complaint of the injury while it was recent. The rule is now that length of time intervening between the injury and the complaint will not, of itself, exclude proof of it, but that the court will look into all of the circumstances surrounding the fact, and on these he may exercise his discretion as to its admission or rejection."
And a long list of cases is cited to sustain the text, including People v. Marrs, supra.
I am persuaded that we should hold that delay of the prosecutrix in making complaint should be considered by the jury as affecting the credibility of her testimony and the charge she makes but that it does not render testimony of the fact that she made complaint inadmissible even though such delay is not satisfactorily excused.
However, if I am wrong in this I still insist that there was no error upon this record in permitting *Page 56 testimony of a complaint to Mrs. Grisson which is the testimony upon which error is assigned. Without objection the prosecutrix had been permitted to testify to complaints made to her mother on numerous occasions and the conversation she had with her mother on the subject; she was then asked:
"Q. When did you first make complaint to any one other than your mother about these assaults?"
Over objection she was permitted to testify that she made complaint to a neighbor woman February 4th; she had testified that she had been assaulted the latter part of January. Naturally an honest girl would first talk to her mother and would not go outside the family with her shame unless the exigencies so required. If the complaints of prosecutrix to her mother had been without result, I do not think it improper to show that she then made complaint to a neighbor even though the complaint was delayed. People v. Werner, 221 Mich. 123.
I think the conviction should be affirmed.
CLARK and SHARPE, JJ., concurred with FELLOWS, J.