State v. Dale

• Decision Date: 02 March 1942
• Docket Number: 36558.
• Citation: 7 So.2d 371,200 La. 19
• Court: Louisiana Supreme Court
• Parties: STATE v. DALE.

7 So.2d 371

200 La. 19

STATE v. DALE.

No. 36558.

Supreme Court of Louisiana

March 2, 1942

Rehearing Denied March 30, 1942.

S. R. Thomas, of Natchitoches, for appellant.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen and H. L.

Hughes Dist. Atty., of Natchitoches, for the State.

FOURNET Justice.

John Dale having been convicted of manslaughter on an indictment for murder, prosecutes this appeal from his conviction and sentence and relies for the reversal thereof on three errors allegedly committed during the course of his trial, to which bills of exceptions were timely and properly reserved.

The first two bills of exceptions were reserved to the trial judge's ruling permitting Mrs. Annie Michwich, widow of the man the defendant is accused of having killed, and Dewitt Williams, to testify, over the objection of counsel for the defendant, as to statements made by the deceased shortly after the shooting. Counsel objected to this testimony 'on the ground that it was hearsay and that a proper basis had not been laid for its admissibility.'

An exception to the hearsay rule is the admission of matters constituting a part of the res gestae. Article 447 of the Code of Criminal Procedure; State v. Bussey, 162 La. 393, 110 So. 626; and 16 C. J. 572, � 1114; 22 C. J. S., Criminal Law, � 662. 'To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.' Article 448 of the Code of Criminal Procedure. See, also, State v. Hopkins, 152 La. 1060, 95 So. 221; State v. Williams, 158 La. 1011, 105 So. 46, 47, and the cases therein cited.

This exception to the hearsay rule was succinctly explained in the Williams case as follows:

'* * * Res gestae are events speaking for themselves through the instinctive and spontaneous words and acts of participants, and not the words of the participants when narrating the events. The distinguishing characteristics of these declarations are that they must be necessary incidents of the criminal act or immediate concomitants of it, and that they are not due to calculated policy or deliberate design. There are no limits of time within which the res gestae can be arbitrarily confined. They vary in fact with each particular case.'

According to the facts of this case, as revealed by the per curiams of the trial judge, the deceased and the accused were 82 yeards apart by actual measurement and separated by a ditch filled with water when the deceased was shot by the defendant through the neck with a 22 rifle, the bullet penetrating the spinal cord and causing complete paralysis from the neck down. The wife and daughter of the deceased, hearing the shots and being only a few hundred yeards away, ran immediately to the place where the deceased fell, the daughter arriving about a minute after the shooting and the wife within three minutes.

The testimony of the widow to which the accused objects is that when she arrived at the scene the deceased told her he had been shot by the defendant from behind a tree. The testimony of the witness Williams (the third person to arrive at the scene where the deceased lay in the same position in which he had fallen after the shooting, his arrival being within five minutes thereof), objected to by the accused is that the deceased told Williams he had seen the accused only a minute before he was shot by him and that he (the deceased) was dying.

The defendant was not represented in this court by counsel and no brief was filed here in his behalf, but we find from the bills of exceptions reserved to the judge's ruling admitting the testimony of Mrs. Michwich...