State v. Reese
| Decision Date | 16 January 1967 |
| Docket Number | No. 48328,48328 |
| Citation | 194 So.2d 729,250 La. 151 |
| Court | Louisiana Supreme Court |
| Parties | STATE of Louisiana v. Dorthy Mae REESE. |
Sam J. D'Amico, Baton Rouge, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for appellee.
Dorthy Mae Reese, having been tried, convicted, and sentenced to four years in the penitentiary at hard labor under a Bill of Information charging her with manslaughter 1 for the death of Patricia Ann Blades, resulting from an abortion, has appealed, relying for the reversal thereof on certain errors allegedly committed during the course of the trial to which timely objections were made and Bills of Exceptions reserved and perfected. 2
The first two bills were reserved when the trial judge refused to excuse for cause two prospective jurors, Albert J. Anderson and Dr. Kenneth E. Jones, the former because of his position as a deputy sheriff of the parish and the latter because he could use his technical knowledge to advise other jurors, thus allegedly making it impossible for either to decide the case objectively on the evidence.
There is no merit to these bills. Neither juror lacked the qualifications required for jury service in this state, or was found to be incompetent to serve under the discretion vested by law in the trial judge, 3 and an examination of the evidence touching on this phase of the trial fails to disclose either prospective juror was disqualified for any of the special causes enumerated in R.S. 15:351. 4 Moreover, inasmuch as the defendant did not exhaust all of her peremptory challenges, she cannot complain of the trial judge's refusal to permit these jurors to be challenged for cause. R.S. 15:353. 5 See, State v. Nichols, 50 La.Ann. 699, 23 So. 980; State v. Bradford, 164 La. 423, 114 So. 83; State v. Thornhill, 188 La. 762, 178 So. 343; State v. Breedlove, 199 La. 965, 7 So.2d 221; State v. Henry, 200 La. 875, 9 So.2d 215; and State v. Simpson, 247 La. 883, 175 So.2d 255.
The next four bills (3 through 6) are levelled at the trial judge's refusal to maintain defense objection to testimony with respect to declarations by the deceased, and are all predicated on the contention the testimony sought to be excluded should have been disallowed as hearsay since (1) it formed no part of the res gestae, and (2) if admissible as a dying declaration, one of the recognized exceptions to the hearsay rule, then because no proper foundation therefor had been laid.
The evidence attached to these bills reflects that Miss Blades, a 21-year-old school teacher, who had theretofore always lived with her parents, moved into a garage apartment rented from Mrs. Shirley Cutrer, a personal friend and former classmate, on Wednesday afternoon July 21, 1965. Bill of Exceptions No. 4 was reserved when Mrs. Cutrer was permitted to testify that at the time she rented the apartment the deceased said she was pregnant. Elaborating further after the objection was overruled, Mrs. Cutrer also revealed Miss Blades further stated 'she had found somebody that was neat and clean and could do a good job * * * an abortion * * * and * * * she had confidence in her.' When Mrs. Cutrer was permitted to state what Miss Blades said about her physical condition when, the next morning around 8:00 a.m., she came to borrow eggs and grease, i.e., that she 'had had it, it is over with, and I am having cramps,' Bill of Exceptions No. 5 was reserved. Bill of Exceptions No. 3 was reserved when Mrs. Cutrer was allowed to testify with respect to statements made by the victim about 1:00 a.m. on July 23, 1965, at the time Mrs. Cutrer was called by her husband (who, in answer to a knock at the back door, met the accused, asking to be permitted to use the telephone to call a taxicab) when he observed that Miss Blades, who had come up behind the accused, slumped over and passed out on the kitchen floor by the back door and was bleeding profusely, i.e., that when the victim revived somewhat on being carried to the couch in the living room, she begged the accused: 'Dot, please don't leave me * * *' 6 The sixth bill was reserved when Dr. S. C. McConnell, Miss Blades' physician, who had been called to meet her at the hospital, was permitted to testify with respect to what the deceased told him about her condition and its cause when he questioned her preparatory to treating her.
Hearsay evidence, which does not derive its value solely from the credit given the witness himself, but rests, in part, on the veracity and competency of some other person, is generally inadmissible to prove or disprove a material fact. 'The reason for this rule of exclusion is that hearsay is not subject to the ordinary tests required by law for ascertaining its truth, the author of the statements not being exposed to cross-examination in the presence of a court of justice, and not speaking under the penal sanction of an oath, there being no opportunity to investigate his character and motives, and his deportment not being subject to observation.' 10 RCL 958, Section 132. However, the hearsay rule is one of the boadest in the field of evidence and yields to numerous exceptions that over the years have become as well established as the rule itself, two of these being (1) statements of a deceased person given in contemplation of death, commonly known as 'dying declarations,' and (2) evidence concerning matters incidental 'to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact will not be properly understood,' commonly referred to as the res gestae. Included in this are all declarations or exclamations uttered by the parties which are made under such circumstances as to exclude the presumption they are the result of premeditation or design and which are calculated to throw light on the motives and intention of the parties. 10 RCL 974, Section 157.
Although the courts have not found it easy to determine just when a declaration is admissible as a part of the res gestae, each case depending upon its particular circumstances, the tendency is to extend rather than narrow the scope of the introduction of evidence as a part of the res gestae, because the ultimate object of the introduction of all evidence is the ascertainment of facts as a reasonable means of ascertaining the truth. Consequently, acts and declarations have been brought within the doctrine if they are connected with, and grow out of, the act or transaction in such a way as to form one continuous transaction, provided they, in some way, illustrate, elucidate, qualify, or characterize the act, and, in a legal sense, are a part of it. As a result, 'Incidents offered as res gestae may be separated from the act by a lapse of time more or less appreciable, provided they grow out of and are in a legal sense immediately connected with the litigated act.' 10 RCL 975--977, Sections 157--160. See, also, 22A C.J.S. Criminal Law §§ 662(1)--663, pp. 660--677; 20 Am.Jur. 400--418, Sections 450--479, and pages 553--578, Sections 661--685; 1 Wharton on Criminal Evidence 624, Sections 279, etc.
As stated in Corpus Juris Secundum, 'the res gestae is not confined to the act charged but includes acts, statements, occurrences, and circumstances which are substantially contemporaneous with the main fact and so closely connected with it as to form a part of a continuation of the main transaction and to illustrate its character.' § 662(1), page 663. Accordingly, hearsay statements in answer to questions are properly a part of the res gestae, and the admissibility of any particular evidence as a part of the res gestae is largely in the discretion of the trial judge. With respect to criminal matters, the res gestae 22A C.J.S. Criminal Law § 662(4), p. 672.
The rationale of the res gestae rule and its exceptions as above expounded has been crystalized in our Code of Criminal Procedure thusly: R.S. 15:447. 'To constitute res gestae the circumstances and declarations must be necessary incidents to the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.' R.S. 15:448.
When this law is applied to the facts in the instant case, it is obvious the statements sought to be excluded under these four bills were clearly not admissible as 'dying declarations' of Miss Blades. However, it is equally clear they do form a part of the res gestae, and, as such, were properly admitted into evidence by the trial judge.
The next bill involves the application of the 'best evidence' rule. It is apparent from the note of evidence attached thereto that when testifying on direct examination Dr. McConnell stated that when he operated on Miss Blades on July 23, 1965, in an effort to save her life he found in, and removed from, her uterus tissue that would not have been there had the patient not been pregnant, which tissue he termed 'products of pregnancy.' On cross-examination, however, he admitted the pathology microscopic examination of this tissue which...
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