Appeals, Nos. 12, 13, 14, and 15, April T., 1962, from judgments of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, June T., 1959, Nos. 55 and 56, in cases of Commonwealth of Pennsylvania v. Robert Rothlisberger, and Same v. Robert C. Hitchen. Judgment of sentence in each case reversed.
Martin E. Geary, for appellants.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 452]
OPINION BY MONTGOMERY, J.
Appellants Robert C. Hitchen and Robert Rothlisberger were jointly indicted and tried for the crimes of rape, robbery, receiving stolen goods, and aggravated assault and battery; and they were found guilty by a jury of fornication and aggravated assault and battery,
[ 197 Pa. Super. Page 453]
and not guilty of the other crimes. Their motions in arrest of judgment and for a new trial having been refused, these appeals followed.
Of the several matters assigned as error, we deem it necessary to discuss only two of them, since one justifies the granting of a new trial. The other alleged errors will be overcome with the grant of the new trial.
At the conclusion of the Commonwealth's case, it offered into evidence, over defendants' objections, pen and ink sketches of two men which had been prepared by a commercial artist upon the request of the prosecutrix, who testified as to the identity of the defendants, and also that the sketches had been made from the description of the defendants she had given to the artist. The artist did not testify. The jury took the sketched with them for use in their deliberation. Unfortunately the lower court did not discuss this reason for a new trial in its opinion.
This situation appears to be similar to where a witness orally describes someone she wishes later to identify and records her description - whether by tape recorder, written memorandum, by the memory of someone else hearing it, or as in this case, by an artist's sketch. Such descriptions have been accepted as part of the res gestae when made at, or shortly after, the time of the event. In Commonwealth v. Goetz, 129 Pa. Superior Ct. 22, 195 A. 144, wherein there is a partial list of such cases, it is stated that (p. 28): "The test is whether they were made under such circumstances as would raise the reasonable presumption that they were the spontaneous utterances of thoughts created by, or springing out of, the transaction itself, and so soon thereafter as to exclude the presumption that they were the ...