Mayes v. State
64 Miss. 329
Miss.
1886
Check Treatment
Coopeb, C. J.,

delivered the opinion of the court.

The appellant has been convicted of the murder of one Albert Lester, and assigns many errors in the proceedings in the court below. We deem it unnecessary to consider the many assignments, many of which are without the semblance of merit, since the judgment must be reversed on the point hereinafter indicated.

The homicide occurred at a social meeting, which had been protracted through the night, during which time many of those present had indulged in the excessive úse of intoxicating liquor, a number of fights resulted, and among these was one between the deceased *331and one Kirkwood. According to the testimony of the witnesses for the State, it appears that while Kirkwood and deceased were fighting the appellant ran in between them, threw his arm around deceased, and cut him with a knife across the stomach, inflicting the wound from.which death resulted. On the other hand, the testimony of other .eye-witnesses who testified on behalf of the appellant is that he did not inflict any wound on deceased but only separated him and Kirkwood and that Kirkwood gave the mortal blow. The dying declaration of the deceased, made several days after thé injury, was admitted in evidence, and by it it appears that the appellant was the guilty agent. But testimony tending to impeach the credibility of this dying declaration was introduced by the appellant.. The court below, over the objections of the defendant, permitted a witness (Henry Wortham) to testify to a statement made by deceased under these circumstances. When deceased was cut he immediately turned and ran a distance of from one hundred to one hundred and ten yards (pursued a part of the way by the appellant, who repeatedly snapped a pistol at him but who turned back before deceased ceased running) and then turned into the woods and lay down. The witness, Wortham, walked up' in the direction in which deceased had gone, and when he had gone a part of the distance he heard one Lynch call out to him, saying: “■ Here is Albert out in the woods with his guts cut outthe witness then went' to where deceased was lying, and before getting there he heard him and Lynch engaged in conversation. Witness reached deceased as nearly as he could fix the time in about five minutes after the wound had been given, and when he came up deceased said to him: “ Henry, Sid (the appellant) has cut my guts out; did you.see him?”

Upon objection to this testimony being made, the learned judge ruled that the statement of the injured party was so recently made after the wound had been given that it was a.part of the res gestee, saying that he did not think sufficient time had elapsed to warrant the suspicion of fabrication.

An examination of the approved text-writers, and of the decisions to which they refer, discloses, especially in the decisions of *332American courts, a somewhat loose regard for well-recognized rules governing the admissibility of evidence. That hearsay testimony cannot be given is universally admitted by. the courts which have from time to time been called upon to determine whether statements of this character are competent, and they have, without exception, declared that when the statement assumes the character of a narrative of a past transaction it is incompetent. But in many cases what were manifestly completed and finished acts have been by a sort of construction treated as incomplete and unfinished, and the statement thus held to be a verbal act incorporated with and a part of the thing being done.

In Thompson and Wife v. Trevanion, Skinner 402, Lord Chief Justice Holt “ allowed what the wife said immediately-upon the hurt received, and before she had the time to contrive or devise anything for her own advantage,” to be given in evidence. In The King v. Foster the witness had seen a cab drive by at a very rapid rate, but did not see the accident, but “ immediately after heard the deceased groan, and went to where he was lying.” It was then proposed to show what the deceased then said as to the cause of his injury, and objection was made by the defendant, but the objection was overruled, the judges ruling that what he said at the instant, though after the injury, was competent. These two cases, as was pointed out by Mr. Justice Clifford in his dissenting opinion in Insurance Company v. Mosely, 8 Wallace 419, have been criti-cised by Mr. Roscoe as “ difficult to reconcile with established principles.” In Insurance Company v. Mosely, supra, statements of the deceased made several minutes after an injury which, it was alleged, had resulted in death, as to how he was injured, were admitted by a divided court. In Commonwealth v. Pike, 3 Cushing 181, the statement of the injured party made some time after the injury — exactly how long is not shown — was received. So also in People v. Vernon, 35 Cal. 49, and Mitchum v. The State, 11 Ga. 616.

On the other hand, in Bedington’s Case, 14 Cox. Cr. Cas. 341, the injured party was seen coming out of a room with her throat cut, and, speaking to the first person she met, said, “ See what *333Bedington has done.” It was proposed to give this statement in evidence against the defendant, but Cockburn, C. J., rejected it, holding that it was not a part of anything then being done, but was a mere statement of a past transaction. Commonwealth v. Pike, 3 Cushing, has been practically overruled by the subsequent cases of Lund v. Tyngsborough, 9 Cushing 36; Chapin v. Marlborough, 9 Gray 244, and Commonwealth v. Denmore, 12 Allen 535. So also People v. Vernon, 35 Cal., has been overruled in the later case of People v. Ah Lee, 60 Cal. 85.

The question of the admissibility of such statements was elaborately and ably discussed by Fletcher, J., in the case of Lynd v. Tynsborough, and by Clifford, J.-, in his dissenting opinion in Insurance Co. v. Mosely, 8 Wallace. We concur in the views there so clearly enunciated against the competency of such proof, which are in harmony with decisions in our own State. Kendrick v. State, 55 Miss. 436 ; Kramer v. State, 61 Miss. 151. It is not enough that the statement will throw light upon the transaction under investigation, nor that it was made so soon after the occurrence as to exclude the presumption that it has been fabricated, nor that it was made under such circumstances as, to compel the conviction of its truth; the true inquiry, according to all the authorities, is whether .the declaration is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history or a part of a history of a completed past affair. In the one case it is competent, in the other it is not. We are not to be understood as attempting to lay - down any rule for the decision of what, under all circumstances, is the limit of the existence of the principal fact, which may be explained by contemporaneous declarations. In some cases the res gestae may extend over weeks or months, in others they are limited to hours, or to minutes, or to seconds of time. Each case must be determined by its own particular circumstances. Mr. Wharton very well expresses the law on this subject, by contrasting the sudden affray between strangers with the social feud which' gave rise to the Gordon riots iu England. He says, “ nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary in fact *334with each particular case. If in any one of our streets-there is an unexpected collision between two men, entire strangers to each other, then the res gestee of the collision are confined to within the few moments that it occupied. But when there is a social feud, in which two religious factions, as in. the case of the Lord George Gordon disturbances, or of the Philadelphia riots of 1845, are arrayed against each, other for weeks, and are so absorbed in the collision as to be conscious of little else, then all that such parties do or say is as much part of the res gestee as the blows given in the homicides for which particular prosecutions may be brought.” Wharton on Cr. Ev., § 262.

We think, on the facts of this particular case, the statements of the injured party were not of' the res gestee ; that they found no support or credence by reason of anything being done, but owe their whole'force to the credit of the declarant, and therefore should have been excluded by the court. For the error in permitting the statement to be given in evidence the judgment must be reversed and a new trial awarded.

Judgment reversed and a new trial awarded.