Freeman v. State , 40 Tex. Crim. 545 ( 1898 )

This case was affirmed at the last Austin term, 1898, and motion for rehearing was presented and argued at the Tyler term, 1898. The motion and argument of appellant's counsel particularly calls in question the action of this court in holding that the statement of the deceased, made directly after the difficulty which ultimately caused hs death, was erroneous. In the original opinion we did not discuss this matter at length, but stated the question in general terms, citing authorities. We now set forth appellant's bill of exceptions on this subject in full: "Be it remembered, that upon the trial of the above styled and numbered cause the State showed by the witness Newberry that he was standing sixty or seventy yards from defendant and deceased at the time of the difficulty, and that after the difficulty the deceased left defendant, and came toward his (deceased's) saloon, which saloon was sixty or seventy yards from the place of the difficulty; that the witness ran toward deceased, and met him about half way between the saloon and the place of the difficulty, at which time deceased remarked to witness 'that that damned son of a bitch has killed me over that coon.' The deceased then told witness to go after the doctor for him, and witness then told deceased to give him his keys to the saloon door. Deceased then took the keys to the door out of his left pants pocket, with his right hand, and gave the keys to the witness, and witness went on, and opened the saloon door, and turned back, and met deceased about ten steps from the saloon, and assisted deceased to sit down in the saloon door. When deceased sat down in the saloon door, he said, 'I believe I will faint.' Witness then fixed a blanket back in the saloon, and we put deceased upon it, at which time deceased fainted, and remained in a fainting condition for about ten minutes before he recovered; and about fifteen or twenty minutes after he recovered, and after the wounds were dressed, deceased stated to Aunt Nancy Johnson, in my presence, that he was not afraid to die; that 'some people look down on the saloon business, but I have never wronged any person out of a cent, and have tried to live honest;' and then went on to state that 'when the defendant met me he asked me if I had seen anything of his coon, and I told him I had not; and I said, "Why?" and defendant said, "some God damned son of a bitch had turpentined his coon while he had gone to dinner." I said, "I had something to do with that, and I do not want to be called such names." Defendant said, "If you did, you are a damned son of a bitch." I then struck the defendant, and about the same time defendant struck me. I knocked the defendant down, but I did not know I was cut until I tried to reach out my left hand to take hold of defendant, and found that my left arm was paralyzed. After the defendant cut me, I saw the knife in his hand. It was a large knife, with a blade three or four inches long, with a sharp curved point.' The State offered the evidence of the deceased's remarks as detailed by the witness Newberry as res gestae, which statements were made between thirty and sixty minutes from the time of the difficulty. To all of which statements of the deceased, as detailed to Mrs. Johnson, in reference to how the difficulty took place, in the presence of the witness Newberry, the defendant objects, for the reason that such statements so made to Mrs. Johnson, in presence of the witness Newberry, were not admissible as res gestae in the trial of said cause; which objection on the part of defendant the court overruled, and allowed said witness Newberry to detail to the jury the statements of the deceased made to Mrs. Johnson as to how the difficulty occurred. To which ruling of the court the defendant excepts," etc.

It will be seen from the above bill of exceptions that appellant does not object to any particular statement of the deceased, as, to wit, that he said that he was not afraid to die, etc., but the general objection urged is that the detailed statement of the deceased to Mrs. Johnson in reference to how the difficulty occurred was not res gestae. In the very able and exhaustive brief filed by appellant on motion for rehearing he urges that the length of time that elapsed between the time deceased was cut by appellant and the statement made, being about sixty minutes, is a circumstance tending to show that said statement was not res gestae; that, in addition to this, deceased went about other things, to wit, that he sent for the doctor; that he asked the witness Newberry to open his saloon door, and got his keys out of his pocket for that purpose; that he then remarked that he was about to faint, and sat down on the gallery; that after this he did faint, and was removed into the saloon; that he remained unconscious for some time; that, after consciousness returned, his wounds were dressed, and in about fifteen minutes thereafter he made the statement referred to. And as further indicative of the fact that there was a break or let-down in the continuity of his statement to Mrs. Nancy Johnson, he prefaced his statement with the remarks "that he was not afraid to die; that some people look down on the saloon business, but that he had never wronged any person out of a cent, and that he had tried to live honest." It is further insisted that said statement appears to be removed from the domain of res gestae by the fact that it was in a narrative form.

There is no difficulty as to a definition of the term "res gestae." Mr. Wharton defines "res gestae" "as facts speaking for themselves through the instinctive words and acts of participants, and not in the words and acts of participants when narrating facts. What is done or said by participants under the immediate spur of the transactions becomes thus part of the transaction, because it is thus the transaction which speaks." And at common law the res gestae was strictly confined to the transaction itself. See Whart. Ev., secs. 262-264, inclusive; Underh. Cr. Ev., secs. 95-98, inclusive. The doctrine in some of the American States has been extended beyond the very time of the transaction, and the rule in Texas is very liberal in the admission of testimony as res gestae. On this subject we quote from. Lewis v. State, 29 Texas Criminal Appeals, 201, which is the approved doctrine on this subject, as follows: "In order to constitute declarations a part of the res gestae, it is not necessary that they were precisely coincident in point of time with the principal fact, but if they spring out of the principal fact, were voluntary and spontaneous, and made at a time so near as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence." And see Castillo v. State,31 Tex. Crim. 145. "The difficulty has been," as was remarked by Judge Hurt in Lewis v. State, supra, "in the application of the principle." And we confess that, viewing the decisions of our court on this subject, it has been marked with great latitude as to the time testimony has been admitted as res gestae. In Stagner v. State, 9 Texas Criminal Appeals, 440, statements made twenty minutes after the transaction were admitted. And so in Lewis v. State, 29 Texas Criminal Appeals, 201, the statement made from a half hour to an hour and a half after the transaction was held admissible. In Fulcher's Case, 28 Texas Criminal Appeals, 465, a declaration was admitted which was made fifteen minutes after the shooting. In Brown's Case, 44 Southwestern Reporter, 174, a declaration made fifteen minutes after the transaction was excluded. And so in Ford's Case, ante, p. 280, a declaration made some fifteen minutes after the shooting was excluded. Of course, all these cases depend upon their own peculiar facts. In those cases in which the testimony was held admissible the judges appear to have based their decision on the idea that the circumstances indicated a spontaneity, while in the others there were circumstances which indicated deliberation and reflection.

Another test as to what constitutes res gestae is that it is the event speaking for itself at the time. To illustrate, if, during the difficulty, one cry out, "Spare me!" or "Don't stab me again!" But if it is the narration of a past transaction it ought not to be admitted; as if, after a difficulty between A. and B., A. narrates to C. the circumstances of the difficulty in the past tense. So far as the Texas cases are concerned, we appear to have made a complete departure from this rule, for a large portion of the decided cases on this question are in phraseology narratives of a past occurrence. In Craig's Case, 30 Texas Criminal Appeals, 621, this court recognized the difficulty of reconciling the cases, or of stating the application of the rule to any given case. We quote from Judge Hurt's opinion in said case, as follows: "Just when the fact or statement is or is not a part of the res gestae is one of the most difficult questions to solve known to the writer. The old rule was that, to be a part of the res gestae, the fact or statement should be contemporaneous with the transaction; and this rule is approved by many courts of the first ability. On the other hand, the rule has been construed so as to admit acts and declarations occurring not contemporaneous with the transaction which preceded or followed it; and when they are to be admitted or rejected, if not coincident with the act of transaction in question, is a question of judicial discretion of embarrassing nicety," On this same subject we quote from Underhill on Criminal Evidence, as follows: "The spontaneous, unpremeditated character of the declarations, and the fact that they seem to be the natural and necessary concomitants of some relevant transaction in which their author was a participant, constitute the basis for their admission as evidence. If a sufficient period has intervened between the act and the statement for consideration, preparation, or taking advice, the statement may be rejected. The mere likelihood or probability that the statement was the result of advice or consideration may exclude it. Actual preparation need not be shown. * * * On the whole, res gestae can not be arbitrarily confined within any limits of time. The element of time is not always material. If the declarations are narrative and descriptive in their form and character, if they are not the impromptu outpourings of the mind, their should be rejected, though uttered only a few minutes after the main transactions." Underh. Cr. Ev., secs. 96, 97. And again, in order to test the spontaneity of the statement, in addition to the lapse of time, the fact that after the main transaction something else intervened, or the party engaged in some other affair prior to making the statement, would be a circumstance to exclude it. This was the rule adopted in Bradberry v. state, 22 Texas Criminal Appeals, 273. In that case the witness Haselfield lived some 200 yards from the place where the difficulty occurred. He heard the firing, and after it ceased went to the place, saw defendant hobbling around, and asked him what was the matter. Defendant told witness to catch his (defendant's) horse, and bring it to him, and he would tell him all about it. He caught defendant's horse, took it to him, which occupied about three minutes, and defendant then made the statement to him about the difficulty. The lower court excluded this statement on the ground that it was not a part of the res gestae. On appeal the ruling of the lower court was affirmed. The holding of the court was predicated on the fact that the party's mind in the interim became employed about another affair, to wit, catching his horse, and that he had time for reflection, and that this constituted a break or let-down between the main transaction and the subsequent statement, and that, consequently, the declaration was not spontaneous. Reviewing the authorities, it clearly appears to the writer that, having departed from the old rule on the subject, we really have no rule; but the admission of such testimony is predicated solely on the discretion of the judge trying the case as to what statements are or are not the spontaneous outgrowth of the main transaction; subject, of course, to review by this court. And the holding of this court on the subject seems to be somewhat confused, which usually follows when rules are abandoned. What is spontaneous belongs to the discretion of each particular judge, and is well illustrated by the old story of the chancellor's foot as a measure of the judgment of the court. In the original opinion the rule which appears to be in vogue in this State was adopted, and it was held that the statement appeared to be spontaneous, and was res gestae. In the present motion, however, our attention has been called, by the able brief of counsel for appellant, to the violation of several tests with reference to the admission of testimony as res gestae, and the authorities bearing upon this question have been discussed and reviewed. A majority of the court adhere to the view that the testimony here admitted is within the rule laid down by the authorities in this State. I am constrained to admit that some of the cases go very far towards sustaining the admission of the testimony here complained of, but I do not believe that any case goes as far as we are called upon now to extend the doctrine. The statement here was made about an hour after the main transaction, and after the parties had separated. So, in point of time, the testimony here complained of is as far removed from the main transaction as that of any reported case. Besides this, the parties had separated. Both had left the scene of the transaction. Defendant had gone to his hotel, and deceased had gone to his saloon. More than this, the mind of the declarant had in the meantime been diverted by other affairs. He had ordered a doctor; he had given his keys to Newberry, to open the saloon for him; he remarked that he was going to faint, and did faint; he was then carried into the saloon, and remained unconscious for some length of time. After this he revived, and his wounds were then dressed. Some fifteen minutes after consciousness returned, and when a crowd had gathered around he made the statement complained of to Mrs. Johnson, prefacing it by a statement as to other matters in nowise connected with the difficulty. The statement itself as made was in narrative form, the declarant using the past tense. I believe that a number of tests erected by the law as safeguards against the admission of this character of testimony as res gestae have been violated. My brethren, however, as stated before, do not agree with me, but believe that the former opinion should be adhered to, and the motion for rehearing overruled. I deem it proper, however, to express my views on this question. In accordance with the views of the majority of the court, the motion for rehearing is overruled.

Motion overruled.