(dissenting):
I dissent.
Hard cases, like great cases, make bad law. In the language of one of our most distinguished jurists, they “exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which eyen well settled principles of law will bend.” Northern Securities Co. v United States, 193 US 197, 401, 48 L ed 679, 24 S Ct 436 (1904). So it is here, for I am convinced that the influence of the horrible and revolting crime to which accused has voluntarily confessed leads my brothers erroneously to evaluate the proof of the predicate for the admission of the victim’s spontaneous exclamation. In so doing, they ignore both the precedents established in our own cases and those decided in other Federal jurisdictions. While I join in the repugnance which a sexual attack upon a child must evoke in any normal human being, I prefer not to allow my emotions to control my reason *233ánd thereby to deny to this accused the right to have plain hearsay excluded.
As the author of the principal opinion notes, the evidence in this record consists solely of the accused’s confession and testimony of a barmaid to whom the victim, an eight-year-old girl, had recited the details of the assault. Proper objection was made to the use of the little girl’s out-of-court declarations to the witness, but the law officer admitted them as spontaneous exclamations. That ruling was apparently made on the ground that the barmaid had also testified to the following facts. Approximately ten minutes before the incident, the victim appeared to be happy and friendly. She obtained two bottles of beer from the witness and left the service window of the bar over which the maid presided. The witness next observed her leaving the men’s toilet. At that time, the little girl was excited, crying, and had flushed cheeks. The barmaid asked her what the “uncle” had done to her, and the so-called spontaneous exclamation followed. A few minutes later, the accused was seen to leave the restroom. On that basis, it is found that there is sufficient independent evidence of a startling or exciting event to justify the receipt of the hearsay testimony of the barmaid.
An utterance concerning the circumstances of a startling event, made by a person while he was in such a condition of excitement, shock, or surprise, caused in turn by his participation in or observation of the event, so that a reasonable inference is warranted that he made the utterance as a spontaneous and instinctive outcome of the event, and not as a result of deliberation and design, is admissible as an exception to the hearsay rule. Manual for Courts-Martial, United States, 1951, paragraph 1426. In order to admit that spontaneous exclamation, there must be evidence of the event causing the excitement, shock, or surprise, independent of that found in the utterance itself. United States v Mounts, 1 USCMA 114, 2 CMR 20; United States v Anderson, 10 USCMA 200, 27 CMR 274.
The reason for the requirement that independent evidence of the exciting event be adduced was succinctly set forth by the late Judge Brosman in United States v Mounts, supra, at page 119:
“. . . However, the fact remains that regardless of the verbalization used, there must be some independent evidence of the exciting, startling, or surprising event which circumstantially guarantees the offered hearsay utterance before it may be accepted by the Court. It would be faulty and circuitous reasoning with a vengeance to permit the questioned declaration itself to furnish the essential basis for its own guaranty. To allow this would, indeed, be to allow an item of evidence to raise itself to the level of admissibility by its own bootstraps.”
The learned Dean Wigmore reached the same conclusion in his monumental treatise. Wigmore, Evidence, 3d ed, § 1761. See also Special Text 27-132, Evidence, The Judge Advocate General’s School, U. S. Army, 1959, page 1901.
In United States v Mounts, supra, we were confronted with testimony that one of the children alleged to have made the spontaneous utterances there involved appeared “excited” at the time he blurted out his story. Assuming spontaneity to exist, we found no independent proof of the event which led to the excitement. In United States v Anderson, supra, evidence was called to establish that, sometime after the incident but prior to the victim’s relation of its details, the little girl involved was seen to be nervously playing with her fingers. Approximately one-half hour later, she approached her father and patted the front of his trousers, making statements which aroused the suspicion of the parents. Questioning resulted in the revelation of the details of an assault upon her. There was also proof that she thereafter suffered nightmares for some weeks and had to be given sedation to relieve her condition. Specifically refusing to rule upon the effect of the lapse of time between the incident and the victim’s relation of the details, we held that the little girl’s statements to her parents *234were not admissible in evidence, as there was no independent evidence of the exciting event. Over the Chief Judge’s dissent, Judge Latimer stated, at page 204:
. . Here, as in the Brown and Jones cases, supra, the only evidence that any indecent assault took place was the hearsay itself. We have no testimony from the child and no evidence reflecting injury to her. When the mother examined the body of the child after learning of the alleged acts, she found no bruises, scratches, or irritation to indicate that the criminal acts had in fact been performed. Prior to the statements made by the infant to her parents, there was nothing in her appearance or demeanor which aroused suspicion of foul play.” [Emphasis partially supplied.]
Turning to the transcript before us, I am unable to find any circumstances which tend to establish that an exciting event, i.e., the assault upon the child, had occurred. True, she was excited and her cheeks were red. The first circumstance has been expressly rejected as evidence of the event’s occurrence. United States v Mounts, supra. The second is little more than another manifestation of the first, for it indicates only the existence of excitement or, perhaps, a normal degree of shame at having entered a men’s restroom. The last circumstance is her exit from that room followed, after the passage of several minutes, by the accused. Can it seriously be contended that this single additional event serves to establish the independent existence of the conduct to which the declarations of the victim pertained? Without engaging in the sheerest of speculation or considering the contents of the exclamation itself, it seems impossible to infer from these circumstances that the little girl had undergone the harrowing experience involved. And if we are to speculate, it seems more likely to conclude that she, through curiosity or otherwise, had entered the men’s room and, having observed, or been observed by, the accused, became frightened and fled. Of course, we know that is not what happened, but we know it only because of the victim’s statements and the accused’s confession which is otherwise uncorroborated.
As noted above, the law is clear that there must be independent evidence of the exciting event in order to admit a spontaneous exclamation. United States v Mounts, supra; United States v Anderson, supra. It is equally well established that the exciting event must be the one to which the exclamation related. Wigmore, supra, §§ 1750, 1754; Navajo Freight Lines v Mahaffy, 174 F 2d 305 (CA 10th Cir) (1949); Chesapeake & O. Ry. Co. v Mears, 64 F2d 291 (CA 4th Cir) (1933). Thus, in Lampe v United States, 229 F2d 43 (CA DC Cir) (1956), admission of a spontaneously uttered identification by a homicide victim of his assailants was approved because of the separate proof of his severe injuries at the time of the statement. And in Guthrie v United States, 207 F2d 19 (CA DC Cir) (1953), the diabolical injuries visited upon the defendant’s victim were also independently established.
On the other hand, in Jones v United States, 231 F2d 244 (CA DC Cir) (1956), the Court of Appeals reversed for the failure otherwise to establish the exciting event upon which the spontaneous exclamation was allegedly based. There, the evidence demonstrated that the child was seen by her mother running from a laundry room in the basement of the building in which they lived. The child was crying and related the details of a revolting assault upon her body to her mother, In holding this proof insufficient, Circuit Judge Bastían pointed out the lack of any showing that the child was injured or marked. And in Brown v United States, 152 F2d 138 (CA DC Cir) (1945), the same court reversed for lack of independent evidence of the event causing the exclamation, stating, at page 139:
“Even if the child had been mentally disturbed [excited] when she told her story, the present case would not have been within the established doctrine of spontaneous statements. This exception to the hearsay rule *235has commonly been applied only when there has been independent evidence of an exciting event; testimony other than the hearsay statement has proved that a collision occurred, a shot was fired, or the like, and the hearsay has served only to identify the actors or to specify their conduct. ... In Snowden v United States the complaining child, when she made her statement to her grandmother, not only was crying but bore unmistakable marks of an assault. In Beausoliel v United States the child not only ‘had a peculiar expression on her face’ when she made her statement to her mother but also testified directly, at the trial, to the assault. In the present case the hearsay evidence is the only evidence that any assault took place.”
It is significant that we quoted from the Brown ease and cited the Jones case, both with approval, in United States v Anderson. As in those cases, the child here did not testify, and the evidence aliunde her declaration and the accused’s statement cannot serve as the basis for an inference that she was assaulted. As that was the act to which her declarations referred, it must have been separately established to admit her testimony. United States v Mounts, supra; Navajo Freight Lines v Mahaffy, supra. At it was not, the hearsay utterances made to the barmaid were not admissible in evidence. Their elimination leaves only the accused’s confession of guilt in the record and requires reversal. United States v McFerrin, 11 USCMA 31, 28 CMR 255; United States v Isenberg, 2 USCMA 349, 8 CMR 149.
In reaching this conclusion, I am aware of the desirability of avoiding the use of an infant victim as a witness if such is possible. That does not mean, however, that we should transform the rule requiring evidence of a startling event into one merely necessitating proof of excitement. Such a result is simply contrary to the law which we have heretofore laid down and, no matter how repellent his offense, this accused is entitled to the benefit of the safeguard involved in the predication of the receipt of spontaneous exclamations upon independent proof of the event which caused them.
I would reverse the decision of the board of review and, in view of the availability of the prosecutrix as a witness, order a rehearing.