State v. Foley

• Decision Date: 06 June 1904
• Docket Number: 15,220
• Citation: 36 So. 885,113 La. 52
• Court: Louisiana Supreme Court
• Parties: STATE v. FOLEY

36 So. 885

113 La. 52

STATE v. FOLEY

No. 15,220

Supreme Court of Louisiana

June 6, 1904

Rehearing denied June 20, 1904.

Appeal from Criminal District Court, Parish of Orleans; Frank D Chretien, Judge.

Charles Foley was convicted of murder, and appeals. Affirmed.

Joseph Edward Generelly and Warren Doyle, for appellant.

Walter Guion, Atty. Gen., Chandler Clement Luzenberg, Dist. Atty and Samuel A. Montgomery, Asst. Dist. Atty., for the State.

OPINION

BREAUX, C.J.

The defendant was charged with murder by taking the life of Richard Flynn on the 7th day of April, 1902.

He was tried, and found guilty as charged, on the 16th day of December, 1903.

From the verdict of the jury finding him guilty as charged, and from the sentence of the court condemning him to suffer the penalty of death, he appeals to this court.

The learned counsel for defendant having made the question res gestae vel non the ground of defense, and, in consequence the ground to be specially reviewed on appeal, we take up that issue.

Both the prosecuting officer and the counsel for defendant agree in the statement, sustained by the jurisprudence of this court, that the question of res gestae must be determined according to the circumstances of each case.

We gather from the transcript that on the night of the shooting which resulted in the death of Flynn the two police officers who were near the locality of the shooting heard shots and saw them fired, and after the first two shots which were fired -- one immediately following the other -- they ran to the place where the shooting occurred, and to the place where the wounded man lay. To quote from the narrative of the bill of exceptions:

"The witness saw the entire affray from the moment that the first flash was seen, and up to the time that he reached the wounded man no one had reached the scene."

They were 400 feet away when they saw the light of the shots. The testimony is that it took them 10 or 14 seconds to run over the ground -- evidently an exaggeration, as they could not run the distance in so short a time. The statement of the witness regarding this fast running ceases to be absurd only when it is considered, as we infer, that this witness (one of the two officers in question who came up after the shooting) desired to convey the idea that no time was lost in running from where they were standing to the spot of the shooting. They found the deceased in the gutter, alongside of the curb. It was at that time that the witness, one of the officers before referred to, asked him who shot him. The answer of the deceased was, "Foley shot me without cause or provocation."

It was to this statement of the deceased that the defendant, through counsel, reserved a bill of exceptions, which brings up the point before us for decision. The court admitted the said declaration of the deceased as part of the res gestae.

The trial judge adds the following to his narrative in the bill of exception, which we quote a second time for the sake of connecting statements:

"The witness saw the entire affray from the moment that the first flash was seen, and up to the time that he reached the wounded man no one had reached the scene."

The defense lays some stress upon the form of the answer of the witness. We, for that reason, insert the testimony on the point in the words of the witness:

"Q. When you ran to this man, did you stop and ask him immediately about his condition?

"A. Yes, Sir.

"Q. Did you ask him, when he was lying down who shot him right then?

"A. Yes, sir, when I went there I tried to grind out who it was. I tried to find out who shot him. (Italics ours.)

"Q. As soon as you reached him you began to ask him questions right at once?

"A. Yes, Sir."

The contention on the part of the defense is that the statement of the witness was not coincident with the shooting or immediately after.

It was not coincident with the shooting it is true. The question arises whether it was immediately after in time to consider it a part of the res gestae.

Only a brief period of time had elapsed and nothing we infer had been said, after the shooting, to the moment the officers came to where the deceased was in the gutter.

In view of the gravity of the penalty, we would readily adopt the view, followed in certain jurisdictions, that the declaration must be coexistent with the act, or so near that the intervening time is almost imperceptible; but our court, as we read the decisions, holds differently, and, of course, that which our jurisprudence held to be law yesterday must be held to be law to-day, unless there was manifest error committed.

Thus, in State v. Thomas, 30 La.Ann. 602, the court said:

"It is not necessary that the declarations be concurrent; it is enough if they exclude all appearance or idea of design."

The decision in State v. Revells, 34 La.Ann. 383, 44 Am. Rep. 436, is very similar.

The witness in that case heard the shot and the cry of the deceased, hurried to the spot, came to it about two minutes after the shooting, and it was then that deceased made statements "touching the person who had shot him." The accused was not present.

This testimony was admitted as part of the res gestae.

In State v. Molisse, 38 La.Ann. 383, 58 Am. Rep. 181, the court said:

"If the acts or declarations are unconsciously associated with and related to the homicidal deed, even though separated from it by a short time, they are evidence of the character of the deed and a part of the res gestae."

This is an extreme case -- as many as 10 minutes had elapsed after the fatal shot -- and yet the court held that the testimony was admissible as part of the res gestae, because the homicidal act was sufficiently connected with the statement "to be an immediate concomitant of it." We must say here we do not go that far in the case before us for decision. The learned court in that case stated:

"And this is what Greenleaf means when he says. 'The trial judge must determine the admissibility of the evidence, and a large discretion is allowed him;' and the court even adds that, according to Greenleaf, the ruling of the trial judge thereon should be conclusive." Gr. Evidence, § 108.

To this decision we lend approval only to the extent that it may serve as analogy to the case in hand.

The court held in State v. Harris, 45 La.Ann. 844, 13 So. 199, 40 Am. St. Rep. 259, that when there are connecting circumstances they may, even when made some time afterward, form part of the res gestae, citing several decisions in support of its view upon the subject.

This court approved the utterance of the court of another state of this country, that the tendency of "recent adjudications" is to extend rather than to narrow the scope of the doctrine, and decided that a declaration not made at the place of the event, but a little over half a square away, under the facts circumstantially stated in the opinion, was admissible as part of the res gestae. Id., 45 La.Ann. 844, 13 South, 199, 40 Am. St. Rep. 259.

We have been at pains to examine each of the decisions to which we have referred, and, as we read them, in each case the statement constituting res gestae was held admissible when made at a time so near the act as reasonably to preclude all idea of design.

While we are not inclined to go as far as was held in some of the cited cases, we think we find in each enough to preclude the possibility on our part of retracing our steps and of holding that the statement, to be admissible as res gestae, must be concurrent with the act.

In all these cases there was intervening time between the statement and the act. It is true it was found that the statement and the act closely following were connected, under circumstances, however, not more evident, as to concomitance of the act and the statement, than in the case at bar.

The commentators upon the subject have not interpreted jurisprudence differently from the views in the decisions to which we have just referred.

They concur substantially in saying that the statement of the deceased is admissible, provided it is made so soon afterward as to exclude all idea that it was made with the view of fixing the act on the defendant or of assisting in his arrest.

Wharton, Criminal Ev. § 263; Bishop, New Crim. Procedure, § 1086; Bradner on Evidence, 494 -- agree. Deliberate design vel non is the test.

Here we have not found deliberate design in the answer of deceased who, while writhing in pain, lying prone in the gutter, as we understand, said:...