Preston v. Com.

• Decision Date: 10 June 1966
• Parties: Britton PRESTON and Melvin Caldwell, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 398

406 S.W.2d 398

29 A.L.R.3d 1387

Britton PRESTON and Melvin Caldwell, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 10, 1966.

As Modified on Denial of Rehearing Oct. 7, 1966.

Joe P. Tackett, Prestonsburg, for appellants.

Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

Britton Preston and Melvin Caldwell were jointly indicted, tried and convicted of armed robbery and sentenced to life imprisonment. KRS 433.140. They appeal.

According to the evidence presented in support of the indictment, one George B. Blanton and two friends, William C. Powers and Smith Kelly, Jr., were drinking beer in the kitchen of Blanton's home in the Green Rock neighborhood of Johnson County, Kentucky, during the late hours of Saturday night, June 6, 1964, and until shortly after midnight, when someone knocked at the front door, which was located in an adjoining room. Kelly went to the door and in a moment returned and said to Powers, 'Let's get out of here.' As Powers made his way to the front door he met and passed a man coming in. At the trial he expressed the belief that this man was the appellant Caldwell, though he would not positively swear to it. Powers got into his automobile with Kelly and undertook to leave the premises, but in backing out he accidentally 'let the wheel drop back over the hill.' When this happened he said to Kelly, 'Get the jack and jack the car up,' to which Kelly replied, 'Let's get out of here, they are robbing George B.' Powers then said, 'Well, give me the gun out of the glove compartment,' but at that point a man standing at the corner of Blanton's house, whom Powers could not identify, said, 'Buddy, you stay out of it,' and fired a shot, whereupon Powers 'fell over the fence and laid in the creek until they brought George B. out of the back of the house, and was pushing him up the road and telling him to run,' etc. The two robbers then got into their car and drove away.

Blanton testified that the first man to enter the house walked into the kitchen and struck him over the head with a pistol, got him down on the floor and took some $500 in money out of his pockets, after which he forced him to go into the other room and lie down on a bed, face down, threw a quilt over his head and told him if he moved he would be killed. Then the second man entered, and Blanton, who says he 'could see out from under the cover,' recognized him at once as the appellant Melvin Caldwell, whom he had known 'ever since he was a baby.' The two intruders proceeded to ransack the house and at length got Blanton up, took him out the back door, and at gun point forced him to walk about 100 yards up the road. According to Blanton, the two men returned to the inside of the house before leaving, though Powers says they drove away without again entering the house. Blanton then came back, ran down the road to his son's home a mile or so away, and telephoned the police.

Blanton said he never had seen or known the appellant Preston before the robbery, but that when he returned to the house immediately after his assailants had driven away, and before he ran on to his son's home, Kelly and Powers told him who he was. At the trial Blanton positively identified Britton Preston as the man who had struck him in the head with a pistol.

Smith Kelly, Jr., did not appear to testify at the trial. His identification of Preston right after the commission of the robbery was related to the jury only through Blanton's testimony, which we have already recited. The first question to arise is whether Blanton should have been permitted to relate what was told him by either Kelly or Powers. The answer is not entirely easy, as the facts make this a close case. It therefore may be well to approach it from the fundamentals.

According to Wigmore, and it is demonstrably so, courts in general have reduced the term 'res gestae' to a useless and misleading shibboleth by embracing within it two separate and distinct categories of verbal statements, one of which is truly an exception to the hearsay rule and the other of which is not, the two being admissible in evidence under different principles. Wigmore on Evidence, § 1767 (Vol. VI, p. 182). When the utterance of certain words constitutes or is part of the details of an act, occurrence or transaction which in itself is relevant and provable, the utterance may be proved as a verbal act, just as may be a visual observation of an event. This is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place. One of the several qualifications for admissibility of this type of statement is that 'the words must be contemporaneous with the conduct, or, in the usual phrase, must accompany the act.' Id., § 1776 (Vol. VI, p. 197).

The character of utterance that is admissible as a genuine exception to the hearsay rule, also under the customary label of 'res gestae,' is a spontaneous exclamation, which may or may not be exactly contemporaneous with the provable act or event. Id., § 1745 et seq. (Vol. VI, pp. 131 et seq.). See Norton's Adm'r v. Winstead, 218 Ky. 488, 291 S.W. 723 (1927). See also note, Res Gestae in Kentucky, by H. E. Edmonds, 39 Ky.L.J. 200 (1950--51). 'The typical case presented is a statement or exclamation, by a participant, immediately after an injury, declaring the circumstances of the injury, or by a person present at an affray, a railroad collision, or other exciting occasion, asserting the circumstances of it as observed by him.' Wigmore on Evidence, § 1746 (Vol. VI. p. 134). This type of statement is received in a testimonial capacity, as evidence of the truth of the fact asserted. Ibid.

'It will be seen that these two classes of statements or exclamations are based on very different principles, and that the question of their admissibility must be determined by the principles applicable to the class within which they fall. * * * The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue, or whether that nervous excitement has died away,' etc. Keefe v. State, 50 Ariz. 293, 72 P.2d 425, 427 (1937).

'This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts.' Wigmore on Evidence, § 1747 (Vol. VI, p. 135).

Under the genuine 'verbal act' doctrine the conduct and the verbal utterances must be by the same person, but under the spontaneous exclamation exception to the hearsay rule, 'that nervous excitement which renders an utterance admissible may exist equally for a mere bystander as well as for the injured or injuring person, and therefore the utterances of either, concerning what they observed, are equally admissible.' Id., § 1755 (Vol. VI, pp. 159--160), citing Kentucky decisions at footnote 2. The admissibility of what Powers and Kelly, or either of them, said to Blanton immediately following the robbery must, of course, be determined under the spontaneous exclamation exception to the hearsay rule. Thus it is unnecessary to consider whether they were participants or bystanders. See, however, Hemphill v. Commonwealth, Ky., 379 S.W.2d 223, 228 (1964).

The facts are not far different from those in Daws v. Commonwealth, 314 Ky. 265, 234 S.W.2d 953 (1950), in which the defendant was on trial for shooting at one Daulton with intent to kill. The incident occurred at a place 100 to 125 yards from a church. Daulton drove his truck on to the church and told several persons the defendant had shot at him. According to the opinion reversing a judgment of conviction, Daulton's statement was made 'after he had driven slowly in his truck 100 to 125 yards from the place of the shooting to the Church and after he had been at the church for three minutes.' (Emphasis added.) Hence it was held inadmissible, being neither spontaneous nor contemporaneous with the shooting. The case was distinguished from Norton's Adm'r v. Winstead, 218 Ky. 488, 291 S.W. 723 (1927), which involved about the same time lapse, on the ground that in the latter case the statement was made at the place of the shooting. On that basis, this case is more like the Norton case, in that the statement or statements identifying the appellants were made at the scene of the crime.

In Barton v. Commonwealth, 238 Ky. 356, 38 S.W.2d 218 (1913), on which the court relied in the Daws opinion, a statement made by the victim of an assault within three minutes after he had been beaten, and only 39 steps away from the place where the offense had been committed, was held inadmissible. As in Daws, the statement was not made right at the scene of the crime, but the court today is unwilling to draw such a tenuous distinction. Actually the Norton and Barton opinions appear to be in substantial conflict, Daws notwithstanding. And see Louisville & N.R. Co. v. Molloy's Adm'x, 122 Ky. 219, 91 S.W. 685, 688, 28 Ky.Law Rep. 1113 (1906),...