Williams v. State, 6586

Citation188 So.2d 320
Decision Date24 June 1966
Docket NumberNo. 6586,6586
PartiesLeroy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Lester Bales, Jr., Zephyrhills, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Leroy Williams was indicted, tried, and convicted in the Pasco County Circuit Court of murder in the first degree, with recommendation of mercy, and was thereupon sentenced to life imprisonment.

Percy A. Mong, the deceased victim, was an elderly man, about 83 years of age and, with his wife, owned and operated a country grocery store located on State Highway 35, in a small community known as Richland, about seven miles south of Dade City, in Pasco County. They lived next door to the store, and had lived and operated their business there for some seventeen years before the tragedy occurred. On the other side of the store building lived Mrs. Margaret Oliver. Sometime between 8:30 and 9 o'clock on the morning of January 8, 1965, Mrs. Oliver was doing her laundry work going back and forth from her home to her laundry house in the rear, with her washing machine in operation, when she heard two sounds like firecrackers exploding, coming from the direction of the Mong store. She paid no particular attention to the sounds but did notice immediately thereafter a green and white Chevrolet automobile, driven by a young colored man alone in the car, drive away from the direction of the store at a fast clip toward the direction of Dade City.

Mrs. Oliver went on into her home to get ready to drive to Zephyrhills for some shopping. She got her purse and keys and then went back out of the house, got in her car, started it, backed it down the driveway, where it apparently stalled. She restarted the car and, knowing Mrs. Mong was away from home, she drove next door to the grocery store to check on Mr. Mong, which was her custom before leaving thte vicinity. She stopped and parked her car outside the store, went to the front door, pushed it open and called to Mr. Mong a couple of times, receiving no response.

Sensing something might have happened, she ran on foot to a neighbor's home on the other side of the Mong residence, called to the neighbor, but getting no response there returned to the store and encountered a Mr. Windish, who lived in the neighborhood, to whom she spoke, but she was unable to make him understand what she was saying because he was hard of hearing. She then again opened the front door of the store, went in and called again to Mr. Mong. There was no sound after her first call but when she called to him a second time she heard a groan or moan at the rear of the store. Upon investigation she found Mr. Mong lying behind the counter with his head and shoulder on a stack of paper bags. 1 She inquired: 'What happened Mr. Mong?' He said, 'A man tried to rob me, I have been hurt', and then, 'I need help'. She immediately telephoned the police from the store, whereupon officers from the Sheriff's department came presently and took over. She estimated it was from five to eight minutes between the time she heard the original firecracker sounds and the time she had the words with Mr. Mong in the store.

The first deputy sheriff to arrive at the scene, after Mrs. Oliver called the police, found Mr. Mong behind the counter 'in a sitting position, more or less' and that 'there was--in Mr. Mong's right hand, there was a revolver--laying in his hand, his right hand, and his right hand was laying out on the floor.' An ambulance driver, summoned to the scene and getting ready to take Mr. Mong to the hospital, was asked if he heard Mr. Mong say anything, and he replied '(o) nly on removal, he asked: 'Are you taking--',' when he stopped by objections from the prosecutor.

Thereafter, at about 10:30 o'clock that morning at the hospital, a neuro-surgeon examined Mr. Mong and testified that '(h)e was semi-comotose; he was not completely out, but he was very, very lethargic; he was in mild shock; his skin was cold, clammy; his blood-pressure somewhat low * * * he was not completely responsive to all of his surroundings, but he was able to respond to specific questions, or specific requests of a very simple nature * * * and admitted that he was in some pain. He was able to move his arms and legs; he was able to follow my finger when I asked him to do so * * *'. He had suffered two bullet wounds, one through the soft tissue on the upper arm, and the other on the right side of the head. The head wound was the more serious of the two, but x-rays of this wound showed no fractures of the skull area, was not necessarily a mortal wound, and no foreign matter was found inside either wound. Mr. Mong was conscious and was able to hear when spoken to. He was treated for shock, underwent x-rays, and given intravenous fluid although there was no appreciable amount of blood lossage. He was then put to rest in a hospital room, 2 but about three hours later suffered a heart attack, from which he subsequently expired, on the following morning, January 9, 1965, at about 11:25 o'clock A.M. The doctor stated there was a definite intervening cause between the injury and the heart failure, namely lowering of blood pressure, additional heart strain, moderate blood loss, shock, and old age.

A confession of the defendant was admitted in evidence, wherein he admitted being in the store and doing the shooting, but contended that he shot in self-defense when, during an argument over the price of pecans, Mr. Mong drew his own revolver and pointed it at the defendant, threatening him at the same time.

The foregoing constitutes a fair synopsis of the high lights of the evidence at the trial. 3

From the judgment of conviction defendant has appealed to this Court, assigning numerous grounds of error, three of which raise serious questions: (1) admission into evidence of the statement made by Mr. Mong to Mrs. Oliver; (2) admission into evidence of defendant's confession; and (3) permitting unintroduced and incriminating physical objects to be displayed in the Court room in the sight of the jury for three days, and then being 'withdrawn' by the State, after the State had first tacitly assured the Court that same would be later introduced into evidence. Timely and appropriate objections were made covering such questions. We hold the trial Court in error as to each of said matters, and reverse for a new trial.

A. Res gestae. No principle of evidentary law, especially in the field of criminal cases, has suffered such a decline in prestige and respect over the years as has the 'doctrine' of res gestae. Professor Wigmore, in his Vol. 6 on Evidence, 3rd Ed., § 1767, p. 182, states:

'The phrase 'res gestae' has long been not only entirely useless, but even positively harmful. It is useless because every rule of Evidence to which it has ever been applied exists as a part of some well established principle and can be explained in the terms of that principle. It is harmful because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to limitations of both. It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. No rule of Evidence can be created or applied by the mere muttering of a shibboleth.'

After quoting the above comments of Wigmore, the opinion in State v. Kump, 76 Wyo. 273, 301 P.2d 808, text 812, derisively says: '(n)otwithstanding this statement, text books, encyclopedias, including Corpus Juris Secundum and American Jurisprudence, and cases continue to discuss what evidence is admissible under the theory of res gestae'.

In Carnes v. State, 14 Okl.Cr. 585, 179 P. 475, text 478, it is said that 'as to what constitutes res gestae is possibly the most complex and difficult question in criminal law.' 31 Yale Law Journal, page 229, states that the term 'res gestae' is used as a 'substitute for reasoning.' In Coryell v. Clifford F. Reid, Inc., 117 Cal.App. 534, 4 P.2d 295, text 296, the use of the term 'res gestae' was criticized because its meanings 'are as numerous as the various cures for rheumatism and about an useful.' In Vol. 22A C.J.S. Criminal Law § 662(1) on page 661, contains the statement 'that the res gestae rule is a dangerous one and should not be extended.' See for a full discussion of the question, 31 Yale Law Journal, 229, 12 Washington L.R. 91; 1 University of Chicago L.R. 394; 42 Illinois I.L.R. 80; 2 Kansas Law Review 41, 121, 246. And our own Florida Supreme Court, speaking through Chief Justice Ellis, in Green v. State, 93 Fla. 1076, 113 So. 121, refers deprecatingly to res gestae as 'whatever may be meant by that term, invented, so it has been said, because of its convenient ambiguity--a sort of 'catch all' in which to save a point when it may not be clearly brought under some better and more clearly defined head.'

The res gestae rule was originally evolved, no doubt, in good faith and for a salutary purpose; being confined to things done and statements made, in fact spontaneous, so as to be, in truth as well as in fiction, an integral part of the transaction in litigation, Garcia v. State, 159 Neb. 571, 68 N.W.2d 151; Collins v. State, 46 Neb. 37, 64 N.W. 432, or to be a necessary incident of the criminal act itself involved or to form in conjunction with it one continuous transaction, State v. Walker, 204 La. 523, 15 So.2d 874; State v. Dale, 200 La. 19, 7 So.2d 371. But the trouble is that res gestae is an exception, not a rule. The rule is hearsay, and as such is a rule of exclusion. Res gestae is an evidentiary device used to neutralize, and sometimes nullify, the beneficent hearsay rule. But exceptions, like taxes, never go in but one direction, always expanding and enlarging. It is a true philosophy that 'to expound is to expand'. The present low estate of res gestae can be attributed directly to the fact that it has...

To continue reading

Request your trial
33 cases
  • State v. Fetelee
    • United States
    • Hawaii Supreme Court
    • January 31, 2008
    ...incident of the criminal act itself involved or to form in conjunction with it one continuous transaction[.] Williams v. State, 188 So.2d 320, 323 (Fla. Dist.Ct.App.1966) (citations omitted). Consistent with the foregoing, this court has broadly applied the res gestae doctrine long before t......
  • Palmes v. State
    • United States
    • Florida Supreme Court
    • March 5, 1981
    ...support of this contention he cites Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Williams v. State, 188 So.2d 320 (Fla. 2d DCA 1966) cert. discharged, 198 So.2d 21 (Fla.1967). Massiah v. United States concerned a defendant who, after being indicted, retai......
  • Anders v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 23, 1969
    ...of states have found the Massiah rule violated when applied to the facts presented. State v. Witt, 422 S.W.2d 304 (Mo.); Williams v. State, 188 So.2d 320 (Fla.App.) citing numerous authorities, State v. Logmore, 178 Neb. 509, 134 N.W.2d 66 (Neb.); Commonwealth v. McCarthy, 348 Mass. 7, 200 ......
  • Green v. State, 6828
    • United States
    • Florida District Court of Appeals
    • September 7, 1966
    ...exception. Res gestae, now the admissibility exception, should be the rule--if and when, of course, it is applicable. See Williams v. State, Fla.App., 188 So.2d 320, opinion filed June 24, Fundamentally, however, as we read Williams, the essential characteristics of evidentiary admissibilit......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT