State v. Buck.
| Decision Date | 30 August 1927 |
| Docket Number | No. 3137.,3137. |
| Citation | 33 N.M. 334,266 P. 917 |
| Parties | STATEv.BUCK. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A woman, fleeing, at night, two miles, to the nearest neighbor in that direction, from her home where she had been beaten and severely wounded, on being admitted and asked, “What is the matter?” said her husband had beaten her; but at the trial for the assault refused to testify because of conjugal affection. Held, that the declaration was admissible, as spontaneous utterance under stress.
Bloody clothing connecting accused with an assault and honestly serving to explain the transaction properly received in evidence.
On motion for change of venue, the compurgator may be examined as to interest and knowledge, and, if found disqualified in either respect, the motion may be denied; and such decision will not be disturbed on appeal, unless unsupported by substantial evidence.
Appeal from District Court, Quay County; Hatch, Judge.
Joe Buck was convicted of assault with a deadly weapon, and he appeals. Affirmed.
Refusal of change of venue will not be disturbed on appeal, unless unsupported by substantial evidence. Code 1915, § 5573.
R. A. Prentice, of Tucumcari, for appellant.
Fred E. Wilson, Atty. Gen., and James N. Bujac, Asst. Atty. Gen., for the State.
[1] Joe Buck was convicted of assault with a deadly weapon upon Johnnie Buck, his wife.
At about 7:30 on the evening of the day in question Mrs. Buck appeared at the home of a neighbor, on business, clothed and in a normal condition. At about 9 o'clock she appeared at the home of Mr. and Mrs. Dibble, crying and asking to be taken in. She was clothed only with a bathrobe, two stockings, and one shoe. She had been beaten about the head with some blunt instrument, and was in a pitiable condition. According to the physician's testimony, there were thirteen wounds upon the head, five of which he called “large wounds.” The left cheek and eye were badly bruised. There was a distinct fracture of the skull back of the left ear, and a slight displacement of the skull behind the other ear. The entire left side of the face was a pulpy mass, and hair and dirt were embedded in the wounds. From the injuries received, the physician testified that there would probably have resulted some period of unconsciousness. On being asked by Mr. Dibble what was the matter, she replied, as testified by Dibble, “that Joe beat her with a six shooter,” and, as testified by Mrs. Dibble, “Joe beat me up with a revolver.” At about 12:30 o'clock the same night, at the hospital, she told the physician, after saying that her husband had beaten her, “he used a large pistol, knocked me down, and set straddle of me and beat me with the butt end of the gun.”
The Dibbles lived some two miles from the Bucks and were the nearest neighbors in that direction, and Mrs. Buck's footprints showed that she had come directly there from a place near the Buck residence. Deputy sheriffs, having been informed, found Buck in his home about 4 o'clock the next morning, where he had evidently been in bed. There was blood on his person and blood on garments (both men's and women's) found on the floor.
The first witness for the state was Mrs. Dunn, who testified to Mrs. Buck's being at her house at a little before 7:30. The physician then testified to the injuries and his treatment, and to Mrs. Buck's declaration as to the cause. The declaration, however, was objected to, was stated in the absence of the jury, and was not received. Mrs. Buck was then placed on the stand. She answered a few preliminary questions, and admitted that she had been at the home of Mrs. Dunn at about the time mentioned, Asked whether later that night she was at the Dibble home, how dressed when she arrived there, and her condition as to being wounded at the time, she answered, “I don't remember.” Asked how she got from Mrs. Dunn's back to her home, she said, “I refuse to answer any more questions.” Thereupon the jury retired. Examination proceeded before the court, and, being advised that she was a competent witness, and that her refusal to testify was a contempt of court, she continued to refuse to answer questions, finally saying, “I don't know any facts against my husband, and I refuse to answer any more questions pertaining to my husband.” And, again: “I will not testify against my husband because we have lived together five years, and have never had any trouble and never will, and I will always stick by him because he loves me and I love him.” The court thereupon adjudged her in contempt. It was after this occurrence and this refusal of Mrs. Buck to testify that the court admitted her declaration made to Mr. and Mrs. Dibble, over the objection that such declaration was hearsay. The reception of that evidence presents the most important question upon this appeal.
The state invokes the exception to the hearsay rule commonly referred to in the decisions as the rule of res gestæ. The exposition of that exception Dean Wigmore says he approached “with a feeling akin to despair,” such has been the confusion in its application. The particular principle involved here is that an utterance made impulsively and under the strain and immediate influence of an exciting or terrifying occurrence may be so inherently truthful that the ordinary sanctions and tests may be dispensed with. It is a sound doctrine, and one easily grasped. The difficulty is in its application. What are the tests of spontaneity? Wigmore, after examination of the judicial expositions, admits but three legitimate limitations to the doctrine. They are:
First. “There must be some shock, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting.”
Second. “The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.”
Third. “The utterance must relate to the circumstances of the occurrence preceding it.”
As to the time limitation, he remarks that it is in practice the subject of most of the rulings. Wigmore on Evidence, § 1750.
It is the lapse of time that was made the basis of the objection to the evidence when it was received, and it is the point made here. How much time had passed, as measured by the clock, we cannot tell. Perhaps there was a period of unconsciousness. That would not count. At least the victim had walked two miles from the scene. Wigmore lays it down that:
Jones says:
“Admissibility depends more on circumstances than on time.” Comm. on Evid. (2d Ed.) § 1197.
Wharton says:
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