State v. Burtts

Decision Date23 December 1964
Docket NumberNo. 10144,10144
Citation81 S.D. 150,132 N.W.2d 209
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Harold BURTTS, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Roubideaux, Poches & Reade, Fort Pierre, for defendant and appellant.

Frank L. Farrar, Atty. Gen., L. A. Weisensee, Asst. Atty. Gen., Robert D. Hofer, Hughes County State's Atty., Pierre, for plaintiff and respondent.

HOMEYER, Judge.

Defendant, Harold Burtts, appeals from a judgment of conviction for the crime of assault with a dangerous weapon. SDC 1960 Supp. 13.2404. Numerous errors are assigned involving largely rulings on motions, admission and exclusion of evidence, and instructons to the jury. Such as merit discussion will be referred to after we state the material facts.

During the night of October 11, 1963, defendant and his wife were at a tavern in Pierre where he played with a small dance band. After completing his job they went to another bar for a drink and left when it closed at about 1 a. m. While driving to their home in Pierre a quarrel developed. Defendant said his wife slapped him several times and was going to grab the steering wheel and he slapped or struck her with the back of his hand causing her nose to bleed.

Defendant and his family lived in a basement apartment and the Wallace Quenzer family lived on the first floor of the same house. Mr. Quenzer testified that he was aroused from his sleep between 1:30 and 1:45 a. m. when Mrs. Burtts knocked at the door; that she was upset, crying and bleeding profusely--blood on her face and clothes; as he let her into the apartment she said 'Call the police, Harold's hit me'; he telephoned the police and officers Eschen and Cruse arrived about ten minutes later.

Mrs. Burtts informed the police officers of the quarrel; that she feared for herself and the children; that she didn't want defendant to remain in the apartment that night. After first attempting to talk with the defendant and upon his refusal to discuss the matter, the officers advised Mrs. Burtts they had no authority to arrest defendant without a warrant, but that she could make a citizen's arrest if she so desired. She then went into the apartment, invited the officers to enter placed her hand on defendant's shoulder, told him he was under arrest for hitting her, and turned him over to the officers. He was requested to go with the officers. When he refused, officer Eschen took hold of his left wrist. As he did this, defendant pulled a 30-30 Winchester rifle, loaded and cocked, from behind the door with his right hand and thrust it against the chest of Eschen who grasped the barrel. Officer Cruse then grabbed the right arm of defendant and took the weapon from him. Defendant was arrested by the police officers for assault with a dangerous weapon and taken into custody. At the same time they seized the rifle and shells. The officers received the call to come to the Burtts home at 1:49 a. m. and defendant was booked into jail at 2:05 a. m.

Prior to the trial date, defendant moved to supppress 'any and all evidence specifically evidence of conversations, struggle, a rifle and subsequent conversations between defendant and arresting police officers which arose out of an incident after an unauthorized, illegal arrest of defendant and which evidence is the basis for the charge of Assault with a Deadly Weapon now pending before this court,' and further to quash the information because defendant was illegally arrested and had the right to prevent his detention. It was not error to deny the motion.

The defendant was charged with the crime of assault with a dangerous weapon. A narrative of the events and circumstances preceding, concurrent, and immediately after the alleged criminal offense was relevant to defendant's guilt and evidence thereof was admissible. The motion of defendant presupposes an absolute defense to the alleged crime. Clearly this was not the case and the motion was properly denied. $The rifle was seized at the time of defendant's arrest for assault with a dangerous weapon upon officer Eschen, as an incident of such arrest, and as evidence of the crime charged. It does not require citation of authority that such seizure was proper and the motion to suppress the rifle as evidence was without merit.

Defendant cites John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 and Burlington Transportation Co. v. Josephson, 8 Cir., 153F.2d 372 as authority to support his motion. We have reviewed these cases and do not agree. In Bad Elk in a prosecution for murder the court did not include in the charge to the jury an instruction on the right to defend an illegal arrest and such was held error. In Burlington, which was a civil action for damages for false arrest and it was admitted before trial that the arresting officers acted without a warrant and thus illegally, it was held proper on motion to exclude evidence of events preceding the illegal arrest. Neither case directly nor inferentially parallels what occurred in the instant case.

The witness Quenzer repeated the statement of defendant's wife 'Call the police, Harold's hit me', and after testifying to the fact that he called the police, upon their arrival that they 'talked to Mrs. Burtts and asked whether she wanted then to go down and talk to Mr. Burtts' and some other conversation between him and Mrs. Burtts and between Mrs. Burtts and the officers. Objection was made that such evidence was hearsay. Also, officer Cruse in response to a question as to what transpired when they answered the call and arrived at the Quenzer apartment testified: 'Mrs. Burtts said mr. Burtts had hit her.' Objection was made that such conversation was privileged and hearsay. The court properly overruled these objections.

We are of the opinion that the spontaneous statement of Mrs. Burtts to Quenzer and the evidence as to what transpired during the time between when the officers arrived and the defendant's arrest was a part of the res gestae and admissible. The rule regarding antecedent acts and statements is stated in 22A C.J.S. Criminal Law Sec. 662(4), as follows:

'While prior disconnected declarations and acts are not admissible as part of the res gestae, a declaration or fact which, although antecedent in point of time, is preliminary or immediately preparatrory to the main fact may be received where it tends to illustrate or give character to the act in question. The res gestae embraces matters and statements immediately antecedent to, and having a causal connection with, the main transaction. The res gestae, as applied to a crime, includes the complete criminal transaction from its beginning or starting point in the act of accused until the end is reached. Continuing acts or a series of events, transpiring before the commission of the crime, and which lead up to and are necessary or helpful to an understanding of the main event, and tend to explain the conduct and purposes of the parties are admissible as part of the res gestae.'

What in any case is a part of the res gestae of a crime depends upon the character and circumstances of the particular case. We believe what occurred and was said between defendant's assault upon his wife, the...

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26 cases
  • State v. Steele
    • United States
    • South Dakota Supreme Court
    • September 2, 1993
    ...committed against different victim minutes after crime charged was properly admitted as part of res gestae ); State v. Burtts, 81 S.D. 150, 155-56, 132 N.W.2d 209, 211-12 (1964). "Evidence when a part of the res gestae was proper if it was related to and tended to prove the crime charged al......
  • State v. Floody
    • United States
    • South Dakota Supreme Court
    • January 22, 1992
    ...constitutes part of the circumstances of the charged crime. State v. Smith, 477 N.W.2d 27, 33-34 (S.D.1991); State v. Burtts, 81 S.D. 150, 156, 132 N.W.2d 209, 211-12 (1964) (evidence of another crime explained police officer's presence in charge of assault with a dangerous weapon). See als......
  • State v. Honomichl
    • United States
    • South Dakota Supreme Court
    • July 29, 1987
    ...and weight of the evidence are jury questions. Blakey, supra; State v. Peck, 82 S.D. 561, 150 N.W.2d 725 (1967); State v. Burtts, 81 S.D. 150, 132 N.W.2d 209 (1964). Witness testimony varied but did identify both defendant and co-defendant Weddell as Witness: Troy Greger testified he saw de......
  • State v. Weddell
    • United States
    • South Dakota Supreme Court
    • July 29, 1987
    ...and weight of the evidence are jury questions. Blakey, supra; State v. Peck, 82 S.D. 561, 150 N.W.2d 725 (1967); State v. Burtts, 81 S.D. 150, 132 N.W.2d 209 (1964). Witness testimony varied but did identify both defendant and co-defendant Honomichl as Witness: Troy Greger testified he saw ......
  • Request a trial to view additional results

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