Norton's Administrator v. Winstead

• Decision Date: 22 February 1927
• Citation: 218 Ky. 488
• Parties: Norton's Administrator v. Winstead.
• Court: United States State Supreme Court — District of Kentucky

Page 488

218 Ky. 488

Norton's Administrator v. Winstead.

Court of Appeals of Kentucky.

Decided February 22, 1927.

1. Evidence — Deceased's Statements Three Minutes After he Was Shot, Telling Who Killed Him and Circumstances of Killing, Held Part of Res Gestae. — Statements of deceased, within three minutes after he was shot, made to those who ran 300 yards to him, telling who killed him and circumstances of killing, held part of res gestae, in action by administrator against person named as murderer.

2. Evidence — Statements, to be Res Gestae, Must be Spontaneous Utterances of Thoughts Springing Out of Happening Itself. — Statements, to be admitted as part of res gestae, must be spontaneous utterances of thoughts springing out of happening itself, being made at time which would exclude presumption that they were result of premeditation or design.

3. Death — Evidence of Wife's Conduct on Hearing Shots Held Incompetent to Show Knowledge of Husband's Intent to Kill Deceased. — Evidence that defendant's wife ran down road and into cornfield, after shots were fired which killed plaintiff's intestate, held properly excluded, since they did not show any knowledge that husband intended to kill him.

Appeal from Rockcastle Circuit Court.

C.C. WILLIAMS and A. FLOYD BYRD for appellant.

B.J. BETHURUM and JOHN S. CARROLL for appellee.

OPINION OF THE COURT BY JUDGE LOGAN.

Reversing.

This is an appeal from a judgment of the Rockcastle circuit court based on the verdict of the jury rendered in favor of the appellee. On the 25th day of August, 1921, appellee shot and killed W.H. Norton. It is alleged in the petition that this was wrongfully and maliciously done and not in the self-defense, or apparently necessary self-defense, of appellee.

The appellant relies for reversal on errors committed by the lower court in sustaining objections to certain evidence offered in support of his cause of action. At the time of the killing of W.H. Norton by appellee, E.B. Norton, Oscar Scott and George Bray were about 250 yards away from the scene. There was no eye-witness to the killing other than the deceased and appellee. Hearing the shots the three witnesses mentioned ran to the scene. They arrived at the place where the killing took place in about three minutes according to their testimony. E.B. Norton was the brother of W.H. Norton. He heard W.H. Norton cry out and he knew something of a serious nature was happening to him. He ran as rapidly as he could. The distance that he ran was about 300 yards as he did not traverse a straight line from the place where he was to the place of the killing. It is reasonably certain that no more than three minutes elapsed before E.B. Norton, Scott and Bray arrived at the place of the killing. When they reached the place they found W.H. Norton lying in the road shot through the bowels. These witnesses were not allowed to tell what W.H. Norton said upon their arrival and that is the chief basis of complaint urged for a reversal of the judgment. E.B. Norton was examined, not in the presence of a jury so that the court might know exactly the nature of the evidence which was proposed. This witness made this statement:

"He said he was killed, and I asked him who did it. He said Jim Winstead. I asked him what the trouble was. He told me he hailed him there, and was standing inside of the fence and halted him, and he stopped, responded to the halt, and he said you have been lying on me. I told him I had not. He said, I give you to understand, by God, I live around here, and went to shooting.

"My brother said he was sitting in the seat. Winstead jumped on the horse and started to shoot him again, and he put up his hands and begged him not to, said he had already killed him, and he jumped on his horse and ran through the field."

Appellant offered to prove by Oscar Scott and George Bray that W.H. Norton made the statements as testified to by E.B. Norton. The court would not allow this proof to be heard and considered by the jury. It is insisted by appellant that it was a part of the res gestae, and that is a question which we must determine.

This court has often had before it the question what is a part of the res gestae, but it is difficult to deduce any rule which is applicable to all cases. It has been held that the statements need not be strictly contemporaneous with the exciting cause before they may be admitted as a part of the res gestae. The admission of statements as a part of the res gestae is not controlled wholly by the question of time, but probably the controlling question is whether or not there was an opportunity to deliberately make up a statement between the happening of the event and the time of making the statement. Before a statement can be admitted as a part of the res gestae the nervous excitement produced by the happening must still predominate and the reflective processes of the mind must be in abeyance. Statements to be admitted as a part of the res gestae must be spontaneous utterances of thoughts springing out of the happening itself and they must be made at a point of time which would exclude the presumption that they were the result of premeditation or design. Some of the cases illustrating the proper admission of statements as a part of the res gestae are as follows: Deacon v. Comlth., 162 Ky. 188, 172 S.W. 121; Roberts v. Louisville Railway Co., 168 Ky. 230, 181 S.W. 1131; Louisville Railway Co. v. Broaddus' Admr., 180 Ky. 298, 202 S.W. 654; Louisville Railway Co. v. Johnson's Admr., 131 Ky. 277, 115 S.W. 207, 20 L.R.A. (N. S.) 133; McLeod v. Ginther's Admr., 80 Ky. 399; Illinois Central Railway Co. v. Houchins, 125 Ky. 483, 101 S. W. 924; L. & N.R.R. Co. v. Strange's Admr., 156 Ky. 439, 161 S.W. 239; L. & N.R.R. Co. v. Messer, 164 Ky. 218, 175 S.W. 360; Cinn., N.O. & T.P. Ry. Co. v. Evan's Admr., 129 Ky. 152, 110 S.W. 844; L. & N.R.R. Co. v. Shaw, 53 S.W. 1048; Brown v. Louisville R.R. Co., 53 S.W. 1041; Floyd v. Paducah R.R. Co., 64 S.W. 653, 23 Ky. L.R. 1077; L. & N.R.R. Co. v. Molloy, 91 S.W. 685, 28 Ky. R.L. 1113.

An examination of these cases will show that this court has been rather liberal in the admission of statements as a part of the res gestae.

In the recent case of Davis, Director General of Railroads v. Burns' Administratrix, 207 Ky. 703, the court well stated the rule deducible from the authorities above cited. The court there said:

"The ancient rule that statements of either party to the transaction that is the subject of litigation to be competent as part of the res gestae must have been made contemporaneously with and...