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JOHNSON v. THE STATE.
53926.
BELL, Chief Judge.
Child molestation. Fulton Superior Court. Before Judge Holt.
The defendant was convicted of child molestation and appeals. Held:
1. The mother of a six-year-old daughter, and a police officer were allowed to testify as to the particulars of the alleged crime of child molestation as told to them by the victim during separate interviews with her. Both interviews occurred within fifteen to twenty minutes of the offense. This evidence was objected to on grounds that it was hearsay. Considering the time factor when made, these declarations were admissible as they were part of the res gestae. Code 38-305. Hooks v. State, 215 Ga. 869 (114 SE2d 6).
2. The evidence authorized the conviction.
3. The other enumerations of error are without merit.
SMITH, Judge, concurring specially.
615, 627.
Under the circumstances of this case, I agree that the young child's statements to the mother soon alter the mother had recovered the child from the defendant's custody were sufficiently within the realm of res gestae. However, statements made in a subsequent interview with a police officer no longer maintain that purity of impulsive reaction, since by that time the child had already been subjected to questioning and had detailed a full narrative about the incident. I cannot accept the conclusion that these latter statements were part of the res gestae.
Nevertheless, I feel the admission of this hearsay testimony was harmless error. The record is replete with evidence concerning the appellant's commission of child molestation. Even without the mother's account of the child's res gestae declaration, there was testimony from two witnesses who observed the appellant committing acts of child molestation. This evidence taken together renders the police officer's hearsay testimony cumulative and, I believe, harmless. Accordingly, I concur in the judgment only.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, H. Allen Moye, Assistant District Attorneys, for appellee.
Robert C. Ray, for appellant.
SUBMITTED MAY 3, 1977 -- DECIDED JUNE 15, 1977.
Friday May 22 07:10 EDT


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