State v. Gillespie

• Decision Date: 09 February 1901
• Docket Number: 11,860
• Citation: 62 Kan. 469,63 P. 742
• Parties: THE STATE OF KANSAS v. TAYLOR GILLESPIE
• Court: Kansas Supreme Court

63 P. 742

62 Kan. 469

THE STATE OF KANSAS v. TAYLOR GILLESPIE

No. 11,860

Supreme Court of Kansas

February 9, 1901

Decided January, 1901.

Appeal from Harvey district court; M. P. SIMPSON, judge.

Judgment reversed.

A. A Godard, attorney-general, and John J. Hildreth, county attorney, for The State.

Branine & Branine, for appellant.

OPINION

DOSTER, C. J.:

This is an appeal from a judgment of conviction of the offenses of burglary and larceny concurrently committed. The store of one C. J. Gram, in Halstead, Harvey county, was broken into in the night-time and some articles of fruit and confectionery stolen. Suspicion of the crime fell upon the appellant, Taylor Gillespie, a boy aged about seventeen, who with two sisters resided on the outskirts of the town. A few mornings after the commission of the burglary, Gram, the store proprietor, and one Philbrick, a constable, called at the appellant's house to search for the stolen property. After an explanation by these men of the object of their visit the boy left, and remained away about an hour, during which time some of the goods in question were found in the house. When he returned and learned that the goods had been found he explained that one Ike Thompson had brought them to him and left them in his keeping; or, rather, to state the fact more accurately, he testified in his defense on the trial that Thompson had brought them to his house and left them in his charge, and he offered to testify and likewise to prove by Gram and Philbrick that he so stated to them immediately on his return to his house and on being informed of the discovery there of the goods. This offered evidence of the explanation given by him was rejected by the court and its rejection has been assigned as error. We are quite well assured that it was error.

The general rule is that declarations made by a party concomitantly with the performance of an act by him, and of a nature to explain and characterize it, constitute a part of the act itself. The act and the accompanying declaration together constitute the res gestae, and are both admissible in evidence. This rule is too familiar to require the citation of authorities in order to the understanding or enforcement of it. It may be remarked, however, by way of illustration of its application to particular cases, that it is not limited to instances of self-disserving declarations, but extends as well to declarations self-serving in character:

"It makes no difference, so far as the admissibility of the declaration is concerned, whether it be in favor of or against the party making it. If the act is one of alleged criminality, and the accompanying declaration tends to show it to be innocent, it is equally admissible as where the tendency is to show the criminality of the act; and it may be given in evidence by the defendant as well as by the state." (Hamilton v. The State, 36 Ind. 280.)

In further illustration of the rule, it may be also remarked that it is not limited to declarations accompanying the performance of acts by a party, but applies as well to declarations explanatory of existing facts with which a party stands in immediate personal relation. Declarations res gestae are not merely declarations accompanying acts performed, but they are also declarations concomitant with present facts. The test of their admissibility is spontaneity of utterance. If they appear to be the instinctive, unpremeditated speech of the party in immediate causal relation to the thing in question, they are admissible, whether that thing be an act concurrently performed or a fact concurrently existing, or whether it be inculpatory or exculpatory in character or import. Declarations of this kind explanatory of the possession of stolen property fall entirely within the rule, and their admissibility has been fully authorized by the courts and text-writers. Bishop, in his Criminal Procedure, volume 2, section 746, says:

The discovery of the stolen goods in the possession of the defendant being a fact in the case, the doctrine of the res gestae teaches that what was said in connection with this fact--that is, with the discovery--may in general be admitted in evidence on either side; especially where, at the time of such discovery, he is directly or by implication charged with the theft. For example, his explanation of how he came by the goods, and the like, may be testified to as well in his behalf as against him. And if such explanation appears to the jury reasonable, and it is not shown by the prosecutor to be false, its weight in the scale for him will be very considerable; but, if it appears unreasonable, and especially if it is shown to be false, it will bear against him heavily."

Some of the cases most clearly in point are The People of the State of New York v. Dowling, 84 N.Y. 478; Henderson v. The State, 70 Ala. 23; Mitchell et al. v. The Territory of Oklahoma, 7 Okla. 527, 54 P. 782.

It is not improbable that the court below ruled against the introduction of the offered testimony because the explanation made by the defendant was not given upon the instant of the first imputation against him of guilty possession of the goods. Some of the testimony might furnish a justification for this view but other parts of it do not. It was not so stated by the court as the ground of the ruling made. It was not pressed upon us by counsel for the state, but was only casually suggested by them, and, therefore, we have not critically examined all of the evidence to...