by which the assault had been perpetrated made immediately after the assault to a person who comes to the assistance of the person assaulted, is competent as a part of the res gesta; the fact that the statement was illicited by a question does not exclude it.28 And the American cases, as a rule, do not sustain the strict English doctrine that the declarations, to be admissible, must be strictly contemporaneous with the main transaction, if the declarations are illustrative and spontaneous and not mere narratives of what has passed.20 § 98. Mental and physical conditions as influencing declarations.— Many crimes involve scenes and actions which, by their exciting character, engross the mind and stir it deeply. The period within which a declaration may be uttered and yet be admissible can, to some extent, be measured by the character of the passions and emotions which exist in the breast of the speaker. Thus, in order that statements should be res geste on a trial for murder, the speaker must have been prompted to speak solely from the excitement of the event of which it is claimed the statement formed 28 State v. Lewis (Iowa 1908), 116 Ct. 118; Ferguson v. State, 141 Ala. N. W. 606. 20, 37 So. 448; Bowles v. Commonwealth, 103 Va. 816, 48 S. E. 527; People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690; State v. Bebb, 125 Iowa 494, 101 N. W. 189; Ludlow v. State (Ala. 1908), 47 So. 321; State v. Alton, 105 Minn. 410, 117 N. W. 617; Martin v. State, 47 Tex. Cr. App. 174, 82 S. W. 657; Wright v. State, 88 Md. 705, 41 Atl. 1060; Bice v. State, 51 Tex. Cr. App. 133, 100 S. W. 949; McKinney v. State, 40 Tex. Cr. App. 372, 50 S. W. 708; Freeman v. State, 40 Tex. Cr. App. 545, 46 S. W. 641, 51 S. W. 230. A witness may state that he gave an alarm after a burglary, and what he said in connection with and while giving it is clearly a part of the res gesta. State v. Moore, 117 Mo. 395, 401, 22 S. W. 1086. Contra, People v. Ah Lee, 60 Cal. 85, 87, 91. 29 State v. Punshon, 133 Mo. 44, 34 S. W. 25; Chalk v. State, 35 Tex. Cr. App. 116, 32 S. W. 534; Moran v. People (Ill. 1896), 45 N. E. 230; State v. Horan, 32 Minn. 394, 395, 20 N. W. 905, 50 Am. 583 (a few minutes); Smith v. State, 21 Tex. App. 277, 305, 17 S. W. 471 (fifteen minutes after); Commonwealth V. Hacket, 2 Allen (Mass.) 136; Lovett v. State, 80 Ga. 255, 4 S. E. 912; United States v. Noelke, 17 Blatchf. 554, 570; United States v. Angell, 11 Fed. 34, 41; Evans v. State, 58 Ark. 47, 22 S. W. 1026; State v. Frazier, I Houst. (Del.) 176; Jones v. State, 71 Ind. 66, 81; State v. Walker, 77 Me. 488, 491, I Atl. 357. See, also, the remarks of the court in Vicksburg &c. R. Co. v. O'Brien, 119 U. S. 99, 105, 106, 30 L. ed. 299, 7 Sup. a part, and before he could sufficiently regain his self-possession to be suspected of having made the statement from design.3 30 If the declarant is implicated, either as agent or patient, in a murderous assault, the fear, hatred, rage or other passion which customarily accompanies a homicide, or attempted homicide, and engrosses the minds of all participants, may, with reason, be considered to prolong the period during which language may be presumed to be spontaneous. The presence of these passions is not conducive to the mental calmness and deliberation necessary to concoct an untrue narrative declaration. On the other hand the mental distraction which is the result of a mortal wound, the physical shock or nervous excitement which is the result of serious bodily injury, the pain and physical anguish of the sufferer, the danger of death and the urgent need for procuring speedy relief or aid would be very likely to prevent the language of the victim from assuming a narrative or retrospective character. 31 The imperative present needs of the body, filling the mind with apprehension and fear, certainly preclude under these circumstances much mental consideration of past events, or mental preparation or intention to narrate them; and tend to make all language used the reflection of the existing mental condition.3 32 The mind, even when thus aroused and stirred, is still open to the reception of new thoughts and impressions which may supply opportunity for fabricating declarations and deprive them of their character as part of the res gesta. If some time elapses, whether long or short and incidents intervene which change the declarant's mental condition and fill his mind with new thoughts 32 them to be "State v. Gianfala, 113 La. 463, 37 panying declarations not otherwise So. 30. admissible. Statements, from what81 Soto v. Territory (Ariz. 1908), ever source, to be thus competent, 94 Pac. 1104. must be contemporaneous with the act they would illustrate. Perhaps a few of the cases require so in the strict sense. But it is at least better doctrine that they are competent, whenever near enough the act, either before or after, to be prompted by the same motive, and apparently to constitute a part of it." I Bishop Cr. Pro., § 1086. "In general, subject to some apparent or real qualifications, what one said in its nature explanatory, while performing an admissible act, whether he is a party or a third person, may be shown in evidence whenever the act is shown. In this way a defendant may even be entitled to introduce in his own behalf accom and ideas, it may be presumed that the door is thereby opened for the introduction of new motives which may suggest or influence the declarations made. The occurrences which may bring this about, depend largely upon the circumstances of each case. The actions of the accused in telephoning for a physician to aid the deceased, or in calling in other persons to his aid, in going to his own room or home and changing his clothing, and particularly where, after doing this, he goes to the sheriff's office or to a police station and surrenders himself, deprive any statements which he may make after these events have occurred of their character as res gesta. And it is immaterial that the transactions which intervene cover but a few moments of time.33 The same principles would apply to declarations by one who is the victim of the crime. His statement made after the intervention of incidents calculated to prompt him with new motives would be rejected. The fact that bystanders had spoken to the deceased and that, having found him lying badly wounded, had placed him in a more comfortable position, and the further fact that the accused had fled from the scene of the crime will not exclude declarations of the deceased if they are properly of the res gesta.34 § 99. Admissibility for the accused.-Declarations which are commonly called self-serving cannot be given in evidence in favor of the accused unless they are part of the res gesta.35 If, however, the accused makes a statement or utters an exclamation which is spontaneous and which is connected with the incidents of the criminal transaction, and explanatory of it, it may be received, though it is in his favor. If the statement is reasonable and consistent with innocence, it should receive due consideration by the jury and may have considerable weight as evidence. The value of his statements as evidence is diminished as the time elapses after the transaction to which they relate. And 33 Johnson v. State, 129 Wis. 146, 108 N. W. 55, 5 L. R. A. (N. S.) 809n; Davis v. Commonwealth (Ky.), 77 S. W. 1101, 25 Ky. L. 1426. 36 35 People v. Huntington (Cal. App. 1908), 97 Pac. 760; Mason v. State (Ind. 1908), 85 N. E. 776. 36 State v. Jacobs (Mo. App. 1908), 34 Price v. State (Okla. 1908), 98 113 S. W. 244; State v. Kane (N. J. Pac. 447. L. 1909), 72 Atl. 39. it should not be forgotten that the rule of the res gestæ is based upon the principle that if a part of a transaction is shown by one party another party to the same transaction may introduce in evidence all or any part of a remainder. Hence, the whole declaration or conversation must be stated and admitted.37 If the declaration was made by the accused in answer to assertions, questions or taunting remarks by the victim of a homicide, the latter are competent to explain the declaration or modify its force and meaning by showing the true motives which prompted it. And it is a general rule that whenever the prosecution shall introduce any declarations of the accused, under the rule of the res gesta, he may offer other declarations forming a part of the same conversation if they are explanatory thereof, though they might not have been competent coming from him in the first instance.38 § 100. Declarations uttered prior to the crime.-If the declaration meets the requirements of the rule now under consideration, that is, if it explains or illustrates a relevant fact, it is not incompetent, merely because its utterance precedes the actual commission of the crime. Evidence is always relevant which shows that the accused made preparations to commit a crime, and from such preparative actions a criminal intention may, with justice, be inferred. Declarations accompanying these acts of preparation are received to explain and unfold their significance, and, indirectly, to illuminate the subsequent language, conduct and state of mind of the accused.39 Thus, where one of two travelers killed the other while en route the court admitted the statements of the deceased, showing "M'Kee v. People, 36 N. Y. 113; People v. Potter, 5 Mich. 1, 5, 71 Am. Dec. 763; Liles v. State, 30 Ala. 24, 26, 68 Am. Dec. 108. Ga. 374, 410, 37 Am. 76n; Schnicker v. People, 88 N. Y. 192, 195; Carr v. State, 43 Ark. 99, 104; Commonwealth v. Castles, 9 Gray (Mass.) Shrivers v. State, 7 Tex. App. 121, 69 Am. Dec. 278; Cluverius v. 450, 455. See supra, § 119a. Commonwealth, 81 Va. 787; Wood v. whence they came and whither they were going, as a part of the res gesta leading up to the crime.40 The declarations, if of the res gesta, may be offered by the accused in his own behalf to illustrate or to show his motives, or to rebut an inference of a criminal intention;"1 and before any part of the declaration is offered against him, if the action to be explained is clearly relevant and is already in evidence. The subsidiary or preparative act to be explained must be relevant to the guilt of the accused. Otherwise, no mere suggestion or probability that the declaration will throw light upon the crime, will avail to let it in, if the accompanying action is not relevant.** If the relevant act is in evidence, the accused need not wait to prove a declaration in his own favor, until another declaration is introduced against him. He may prove the declaration at once. 43 § 101. Declarations by bystanders and third persons.-The oral or written declarations of persons other than the accused or the passive participant in the crime, if they possess the character of declarations forming a part of the res gesta, are receivable. If the act of a third party is relevant and is in evidence, his statement accompanying and explanatory of it, which is the natural concomitant of the act, and is prompted by the identical motive, should be admitted.44 40 State v. Vincent, 24 Iowa 570, and cases in note 1, p. 124; Morrow 573, 574, 95 Am. Dec. 753. 41 State v. Walker, 77 Me. 488, 490, I Atl. 357; Dukes v. State, II Ind. 557, 564, 71 Am. Dec. 370; State v. Daley, 53 Vt. 442, 445, 38 Am. 694; Monroe v. State, 5 Ga. 85; Foster v. State, 8 Tex. App. 248; Maddox v. State (Ala. 1909), 48 So. 689; State v. Kane (N. J. L.) 72 Atl. 39; Price v. State (Okla.), 98 Pac. 447. 42 People v. Williams, 3 Park. Cr. (N. Y.) 84; Griffith v. State, 90 Ala. 583, 589, 8 So. 812; Brumley v. State, 21 Tex. App. 222, 239, 17 S. W. 140, 57 Am. 612. 43 Foster v. State, 8 Tex. App. 248; Thomas v. State, 27 Ga. 287, 297; State v. Abbott, 8 W. Va. 741, 754, v. State, 48 Ind. 432, 435; Mack v. State, 48 Wis. 271, 278, 280, 4 N. W. 449; Schlemmer v. State, 51 N. J. L. 23, 29-31, 15 Atl. 836. Contra, State v. Hicks, 92 Mo. 431, 437, 4 S. W. 742; Fleming v. State (Tex. Cr. App.), 114 S. W. 383; Douglass v. State (Tex. Cr. App.), 114 S. W. 808; Lyles v. State, 130 Ga. 294, 60 S. E. 578. Hunter v. State, 40 N. J. L. 495, 535-540; State v. Gabriel, 88 Mo. 631, 639; Haines v. People, 138 Ill. App. 49. Admissibility of declarations of conspirators as part of res gestanote, 19 L. R. A. 745. |