Ruling of this kind will not be disturbed unless on review it appears from the voir dire examination of the child or by its testimony, that the trial court abused its discretion. In Pillod v. People, 119 Colo. 116 200 P.2d 919 we affirmed a conviction for taking indecent liberties. There, the complaining witness was a girl six years of age.
[9] The defendant not only did not make any contemporaneous objection to the introduction of her testimony, but insisted that it was not necessary for the district attorney to "lead" her because "Seena Gay seems aware of circumstances about her, and if she is simply asked to describe events which she saw, she could do this." There was no error, but if there had been, defendant by his tactics waived it. Pillod v. People, 119 Colo. 116, 200 P.2d 919; Faden v. Estate of Midcap, 112 Colo. 573, 152 P.2d 682. III.
In such circumstances, we cannot find that the trial court abused its discretion in finding that the witness was competent. Hood v. People, 130 Colo. 531, 277 P.2d 223; Wesner v. People, 126 Colo. 400, 250 P.2d 124; Pillod v. People, 119 Colo. 116, 200 P.2d 919; Brasher v. People, 81 Colo. 113, 253 Pac. 827; City of Victor v. Smilanich, 54 Colo. 479, 131 Pac. 392. IV.
"* * * The purpose for which evidence that complaint was made by the victim of the alleged offense is admissible is merely to corroborate or confirm her testimony by showing consistent conduct on her part.* * *." In the case of Pillod v. People, 119 Colo. 116, 200 P.2d 919, a prosecution for indecent liberties, the court adopted the rules applicable in rape cases. As contended by the People in their brief, if the primary purpose for receiving the testimony to the effect that a complaint was made to corroborate or confirm the testimony of the prosecuting witness, such testimony should be admissible for the same purpose in the prosecution for sex offenses other than rape, where there are analogous reasons for such admission.
" Objections similar to the one here interposed to Robert's testimony have been made and overruled in City of Victor v. Smilanich, 54 Colo. 479, 131 Pac. 392; Holm v. People, 72 Colo. 257, 210 Pac. 698; Brasher v. People, 81 Colo. 113, 253 Pac. 827; Pillod v. People, 119 Colo. 116, 200 P.2d 919; Warren v. People, 121 Colo. 118, 213 P.2d 381. We conclude that no error was committed in permitting Robert to testify; that his evidence was direct, and upon it the jury might properly base its verdict, with the death penalty attached.
In the instant case defendant did not object at the trial to the competency of either the prosecuting witness or the other children who testified. In the recent case of Pillod v. People, 119 Colo. 116, 200 P.2d 919, we affirmed a conviction under the same statute here involved. There a girl six years of age, who was the prosecuting witness, was allowed to testify.
Other jurisdictions have held fresh complaint testimony admissible in prosecutions for indecent assault and battery. See Rex v. Osborne, 1 K.B. 551, 558-559; People v. Burton, 55 Cal.2d 328, 351 (1961); Pillod v. People, 119 Colo. 116, 119-120 (1948); People v. Bonneau, 323 Mich. 237, 240 (1948); State v. Balles, 47 N.J. 331 (1966), appeal dismissed, 388 U.S. 461 (1967); State v. Murley, 35 Wn.2d 233, 236-237 (1949). The defendant relies on People v. Scattura, 238 Ill. 313, 316 (1909), for a contrary rule (see also People v. Romano, 306 Ill. 502, 504); but, as explained in People v. Hernandez, 88 Ill. App.3d 698, 704-705 (1980), Illinois's rationale is that such testimony is admissible solely for its bearing on consent, lack of which is not an element of the Illinois crime.
This view has been taken in cases similar to the present one. The complaint of an 11-year-old child was received where the charge was commission of a lewd and lascivious act ( People v. Huston, 21 Cal.2d 690, 134 P.2d 758 ( Sup. Ct. 1943)); of six- and seven-year old children in a prosecution for taking indecent liberties with their persons ( Pillod v. People, 119 Colo. 116, 200 P.2d 919 ( Sup. Ct. 1948); People v. Bonneau, 323 Mich. 237, 35 N.W.2d 161 ( Sup. Ct. 1948); Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 ( Sup. Ct. 1945)). Of course, the basic principle of inadmissibility of prior consistent statements of a witness to bolster his credibility is opposed to the rape case rule.