Estell v. State

• Decision Date: 02 March 1889
• Court: New Jersey Supreme Court
• Parties: ESTELL v. STATE.

17 A. 118

51 N.J.L. 182

ESTELL

v. STATE.

Supreme Court of New Jersey.

March 2, 1889.

(Syllabus by the Court.)

Error to court of quarter sessions, Monmouth county; WALLING, Judge.

Aaron E. Johnston, for plaintiff in error. Charles Haight, for the State.

BEASLEY, C. J. This writ of error has brought up the record of the conviction of the plaintiff in error before the Monmouth sessions of the crime of manslaughter. The pertinent facts were these: The defendant drove his team of mules, attached to a wagon, through a toll-gate of which the deceased man, William H. Hart, was keeper. The state alleged that the defendant's purpose was to escape the payment of toll. Hart, in frustration of this design, ran out, and endeavored to stop the team by seizing some part of the harness, and either by this act, or as was alleged by the state, by incitement from the defendant, the team broke into a run. Hart was dragged a short distance, fell to the ground, the wagon-wheels passing over his body, and so badly injuring him that he died within two days.

The first objection against the proceedings at the trial, as appears from the bill of exceptions, relates to certain statements made by Hart, the injured man. They were made under these circumstances: Hart was run over 30 or 40 yards from the toll-house. The defendant drove away, leaving him insensible on the ground. In a few minutes he was removed into the toll-house, and, after being there a short time, perhaps 15 or 20 minutes, he made the statements in question, being questioned by his wife, thus: "I said to him, 'Why did you not let go?' and he said, 'I could not let go, for they whipped up their horses, and urged them on, and I did not dare let go for fear I would go under the wheel, they were going so fast.' He said they ran over him. I said, 'Who?' and he said, 'I recognized Cale Patterson, and I think it was his son. He had his face from me, the young man did.'" The wounded man died in about 36 hours afterwards. These declarations were admitted by the court, not as dying declarations, but as part of the res gestœ. It is entirely plain that they were not admissible. They were no part of the transaction that was being tried. The issue was whether or not the defendant had inflicted the mortal injury. The subsequent statements respecting that affair did not belong to it as a portion of its substance, or as an incident of it. The res gestœ were finished, and the wounded man merely described the past transaction. If he could make such description 10 minutes after the occurrence, he could do so 10 hours afterwards. Nor does it seem that immediate declarations would be more reliable than those that should be made at a later period; for, while the latter in some cases might afford time and opportunity for fabrication, it is certain the former might be adulterated by reason of the vindictive passion unavoidably awakened by the strife or accident, and which would have had no chance of becoming appeased. All such statements, whether proximate or remote, are untrustworthy in the extreme. They are not made under oath; they cannot be discussed by cross-examination, generally being fragmentary and incomplete, and liable, therefore, to be misunderstood and misreported. Mr. Wharton correctly defines the rule of law on this subject when he says: "All...