Andrews v. State, 38213
| Decision Date | 06 April 1982 |
| Docket Number | No. 38213,38213 |
| Citation | 290 S.E.2d 71,249 Ga. 223 |
| Parties | ANDREWS v. STATE. |
| Court | Georgia Supreme Court |
Donald W. Huskins, Eatonton, for Joe Louis Andrews.
Joe Briley, Dist. Atty., Gray, Michael J. Bowers, Atty. Gen., for the State.
Joe Louis Andrews shot and killed his wife with a handgun. He was convicted of murder, and sentenced to life imprisonment. He appeals, urging fourteen enumerations of error, none of which are significant with the exception of that attacking the trial judge's admitting over objection the testimony of two emergency room nurses who attended the victim before her death.
The essential facts of the case are these: Andrews was in his automobile, and had in his right hand a pistol. He instructed one of his children to tell his wife to come from the house to the driveway, where he was parked. The wife came close to the driver's side of the car. The gun discharged, striking her in the chest and thumb. Andrews drove her to the hospital, where she received treatment and shortly thereafter died.
Andrews testified that he had the gun in his hand in order to remove it from the car, as one of the couple's children might be expected to use the car on that evening; that as he opened the door to get out of the car, the gun accidently discharged, even though his finger was not on the trigger; that the discharge of the gun was an accident, and he had no intention of inflicting any harm upon his wife. A blood-alcohol test recorded .27 grams percent alcohol content of Andrews' blood. Powder burns on the victim's skin indicated that the gun was fired from a muzzle distance of less than two inches.
We set out here the testimony of the emergency room attendants. A Ms. Harvey testified that she was with the victim in the emergency room attempting to give her intravenous fluid under the direction of the attending physicians. During that time, "
A Ms. Smith, also an emergency room attendant, testified,
On cross-examination, the witness testified that she and her companions continued to ask the victim questions about her condition, but received no answer.
Code Ann. § 38-307 provides: "Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide."
The declarations of the victim do not come within the ambit of this Code section for several reasons: there is no showing that she was conscious of her impending death; there is no declaration on her part as to the cause of her injury, and no identification of the person inflicting a mortal wound. To the contrary, the testimony of the two attendants reflects words and conduct which can only be categorized as delirium.
The State urges that the admission of the testimony is warranted under the provisions of Code Ann. § 38-305, as follows: "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 res gestae."
And so today we face, once more, that near-insoluble enigma of our law, which we call res gestae, just as our prececessors on this Court have done throughout our history.
In Mitchum v. State, 11 Ga. 615, 622-3 (1852), Justice Nisbet wrote:
Chief Justice Lumpkin wrote the opinion in Hart v. Powell, 18 Ga. 635 (1855), which approved the receipt in evidence of statements of a party, relative to the reason that he had shot and killed another man, in a time when parties were incompetent to testify. Lumpkin did not use at any point in his opinion the words res gestae, although he quoted with approval a passage by Greenleaf (1 Greenleaf Evidence § 108) employing the term. Instead, he put this question: Hart, supra, at 640.
In Cox v. State, 64 Ga. 374, 410 (1879), Justice Bleckley wrote: "(2) Acts are pertinent as part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it; and declarations are pertinent if they are uttered contemporaneously with pertinent acts, and serve to account for, qualify, or explain them, and are apparently natural and spontaneous."
The observations of commentators serve to enlighten, if not the rule itself, at least its enigmatic...
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Morgan v. State
...is not admissible as a dying declaration, it may be admitted under the res gestae exception to the hearsay rule. Andrews v. State, 249 Ga. 223, 290 S.E.2d 71 (1982). The trial court here correctly also relied on that exception, because the victim made his statement while receiving emergency......
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Park v. State
...173 Ga.App. 570, 572(2), 327 S.E.2d 770 (1985).27 Taylor v. State, 176 Ga.App. 567, 574(4)(b), 336 S.E.2d 832 (1985).28 249 Ga. 223, 228, 290 S.E.2d 71 (1982).29 See Williams v. State, 180 Ga.App. 562, 563(1), 349 S.E.2d 797 (1986); Samples v. State, 169 Ga.App. 605, 606(4), 314 S.E.2d 448 ......
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Lewis v. Emory University
...Ga. 221, 226(1), 173 S.E.2d 691 (1970). 27. See White v. White, 262 Ga. 168, 169, 415 S.E.2d 467 (1992). 28. See Andrews v. State, 249 Ga. 223, 227-228, 290 S.E.2d 71 (1982) (whether evidence is admissible involves "the discernment of the trial judge," whose determination will not be distur......
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Taylor v. State
...recently enunciated more liberal standards for appraising whether statements fall within the parameters of res gestae. Andrews v. State, 249 Ga. 223, 290 S.E.2d 71 (1982). (c) Even where statements were not so closely related to the event as to constitute part of the res gestae, this court ......
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Evidence - Marc T. Treadwell
...at 432. 330. Id. at 226, 526 S.E.2d at 430. 331. Id. at 227, 526 S.E.2d at 430. 332. Id. at 228, 526 S.E.2d at 431. 333. Andrews v. State, 249 Ga. 223, 225, 290 S.E.2d 71, 73 (1982). 334. 240 Ga. App. 90, 522 S.E.2d 676 (1999). 335. Id. at 90, 522 S.E.2d at 677. 336. 271 Ga. 657, 522 S.E.2d......
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Evidence - Mark T. Treadwell
...402 S.E.2d 298, 302 (1991)). 273. Id. at 138-39, 503 S.E.2d at 386. 274. Id. 275. Id. at 139, 503 S.E.2d at 386. 276. Andrews v. State, 249 Ga. 223, 225, 290 S.E.2d 71, 73 (1982). 277. Id. at 227, 290 S.E.2d at 74. 278. 234 Ga. App. 678, 507 S.E.2d 845 (1998). 279. Id. at 678-79, 507 S.E.2d......
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Evidence - Marc T. Treadwell
...106 (2001). 271. Id. at 753-54, 555 S.E.2d 107-08; see also O.C.G.A. Sec. 24-3-3 (1995). 272. O.C.G.A. Sec. 24-3-3. 273. Andrews v. State, 249 Ga. 223, 225, 290 S.E.2d 71, 73 (1982) (emphasis in original); see also Treadwell, supra note 176, at 301; Marc T. Treadwell, Evidence, 47 Mercer L.......
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Evidence - Marc T. Treadwell
...App. 281, 281, 424 S.E.2d 818, 819 (1992) (quoting Harper v. State, 249 Ga. 519, 525, 292 S.E.2d 389, 395 (1982)). 161. Andrews v. State, 249 Ga. 223, 225, 290 S.E.2d 71, 73 (1982). 162. See, e.g., Lee v. Peacock, 199 Ga. App. 192, 404 S.E.2d 473 (1991). 163. See, e.g., Wilbourne v. State, ......