¶1dissenting.
¶2The crux of this case is that a neighbor of the victim was an eyewitness to a sexual assault upon a six-year-old child by the defendant. He saw the child being molested and ran out of his home to prevent the child from being harmed. The perpetrator drove away in a blue Ford automobile. Another neighbor and this witness followed in hot pursuit and although they lost the car from view on one occasion they later located the blue Ford and informed a law officer who arrested the driver. In the meantime, the father had been advised of the assault by his sister-in-law and he, too, pursued the perpetrator but was unable to locate the driver. He then returned and attempted to find out from his six-year-old son, who was scared and crying, what had occurred. In the meantime, the neighbor eyewitness returned and told him the offender had been caught. Thereupon, the father went into the house, got his father-in-law and the boy and began to drive to the jail. During this ride the son again broke down and cried but finally, after regaining his composure, gave his father an account of the incident which shows a prima facie case of aggravated sodomy.
¶3The majority, in reversing this case, held that the testimony given by the father as to the six-year-old son’s declaration to him as to what occurred, and which was the *855first utterance by him, amounted to hearsay, that it was essential to the state’s proof of aggravated sodomy, and without it the evidence did not support the verdict. The majority has reversed, holding that the lower court erred in refusing to direct a verdict of acquittal on the aggravated sodomy charge. To this I cannot agree.
¶4The court allowed this testimony of the victim’s statement as to what his son had told him on the way to the jail, approximately 30 to 40 minutes after the alleged criminal act had occurred, as a part of the res gestae. The law clearly states that declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae. "The ultimate test of res gestae is spontaniety and logical relation to the main event (Lampkin v. State, 87 Ga. 516 (13 SE 523)), contemporaneous with the main fact but not necessarily precisely concurrent in point of time.” Terrell v. State, 138 Ga. App. 74 (225 SE2d 470). The majority hold the time lapse of 30 to 40 minutes and the boy’s exposure during that period to persons who were aware of what had transpired left him open to many opportunities for the formulation of an untrustworthy declaration. I do not find this to be true and I cannot agree that the father’s recollection of the child’s declaration to him was inadmissible as hearsay. The neighbor only saw child molestation and could not testify as to the aggravated sodomy, although it could have occurred since he left his point of observation to rush to protect the child. However, his testimony is consistent with the father’s testimony (child’s declaration) as to the occurrence of sodomy.
¶5The general rule as laid down by the Supreme Court is that where the complaint constitutes a part of the res gestae not only is the fact that a complaint was made, "but the complaint made, is admissible; and the details of the complaint may be given” in evidence as well. Hooks v. State, 215 Ga. 869 (7) (114 SE2d 6). See also Code § 38-305; Conoway v. State, 171 Ga. 782, 784 (156 SE 664); Epps v. State, 216 Ga. 606, 611 (2f) (118 SE2d 574); Robinson v. State, 232 Ga. 123, 129 (205 SE2d 210); Ruff v. State, 132 Ga. App. 568 (2) (208 SE2d 581).
¶6Since I would affirm the judgment, I therefore *856dissent.
¶7I am authorized to state that Presiding Judge Been and Judge Marshall join in this dissent.