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Res Gesta in Criminal Cases (continued)
Published online by Cambridge University Press: 16 January 2009
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Assuming that a res gesta situation has arisen, it may now be considered what forms the declaration may take. Presumably the declarant will not be held to all those niceties of speech which are exacted from a witness: a declaration will not be excluded because it asserts or denies the very fact to be determined by the court. If in Comm. v. Hackett the deceased had said: “Dan Hackett has murdered me,” it would have been as admissible as his actual statement that Hackett had stabbed him. It is further submitted that the general rule excluding opinion evidence should similarly be relaxed in the case of a statement part of the res gesta. In some cases, an utterance that might have qualified for admission as part of the res gesta has been rejected as opinion. But such a statement seems to have been received in R. v. Palmer, where Fisher was allowed to testify that at Shrewsbury, six days before his death, Cook said to him, about ten minutes after drinking a glass of brandy with Palmer and others, not merely that he had been very sick but also, despite the objection of defence counsel, that “that damned Palmer had dosed him.” The reference to Palmer seems to have been based purely on conjecture. The general rule against opinion evidence is based upon two considerations, first that opinions in so far as they are based upon no evidence are worthless, and second that in so far as they are based upon legal evidence they tend to usurp the function of the tribunal whose province alone it is to draw conclusions of law or fact.
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References
88 Per Cardozo, J. in Shephard v. U.S.A. (1933) 290 U.S. 96, 101,Google Scholar dealing with a case of a dying declaration, but presumably the remarks apply equally to a res gesta statement.
89 See note 32, Part I. It might in the hypothetical example be argued that it would be admissible as a dying declaration, in that it impliedly acknowledges that death is certain—see note 30, Part I.
90 Comm. v. Fugmann (1937) 330 Pa. 4, 198 Atl. 99 (Pennsylvania)—Deceased, injured by bomb received through the post, said: “F. done this.” Held inadmissible as mere conjecture. Chapdelaine v. R. [1935] S.C.R. 53 (Canada)—C. was charged with the murder of her husband by arsenic poisoning. His accusation was rejected as part of the res gesta, partly because the transaction was over (the statement was made in hospital two weeks after the alleged administration, and one week after his removal to hospital), and partly as mere opinion: per St. Germain J. at p. 68. The accusation was also rejected as a statement made in the presence of the accused, as the jury had not been directed on the Christie point—see note 24, Part I.
91 Bennett's S.H. Report, 26. Lord Campbell C.J. overruled the objection of Serjeant Shee, later Shee J., but not an experienced counsel in criminal causes: this was his second defence of a capital charge, and he admits he was only a substitute for the intended counsel who was ill: ibid., 174. Sir Alexander Cockburn, later of Bedingfield fame, then Attorney-General, in opening for the Crown, stated that the words were not evidence: ibid., 9. Stephen, a spectator at the trial, thinks them admissible on a ground not considered by the court—see note 4 (infra).
92 Per Learned Hand J. in Central R.R. Co. of New Jersey v. Monahan (1926) 11 Fed. 2d 212. See also Elcomb Coal Co. v. Coffman (1938) 113 S.W. 2d 847, 272 Ky. 93 (Kentucky), where a statement of a victim of an accident that his back was broken was accepted as an idiomatic exclamation part of the res gesta, though in the realm of expert opinion if literally accepted.
93 It is noteworthy that Thayer would limit the general rule excluding opinion evidence to cases where, in the judgment of the court, it will not be helpful to the jury: (1898) A Preliminary Treatise on Evidence at the Common Law, 525. Approved by Cowen, & Carter, , Essays on the Law of Evidence (1956), 172.Google Scholar
94 (1902) 64 Kan. 669, 68 Pac. 48 (Kansas) cited Chamberlayne, para. 3010 (1913). Three to five minutes after her throat had been cut, and her windpipe severed so that she could not speak, deceased wrote: “Jess Morrison killed me.” Held admissible.
95 (1930) 22 Cr.App.R. 36.
96 Phipson (9th ed. 69, 130) says that these books belonged to the prisoner, the headnote that they belonged to the victim. Were Phipson correct it is submitted that the evidence would be still more cogent, as if, say, his visiting card were found at the scene of the crime.
97 Hewart, L.C.J., the trial judge, makes this last point in his summing up: The Times, March 10, 1930.Google Scholar He also admitted, despite objection, a letter from M. to Thomas, P.'s alias, making an appointment, and found near the body: ibid., March 4, 1930. Before the C.C.A., Inskip for the Crown argued that this letter was not offered to prove the truth of its contents: ibid., April 8, 1930.
97a See n. 87, Part I.
97b See n. 18, Part II (infra), though this deals primarily with the problem of the initiation of the transaction.
98 See Tustin v. Arnold (1915) 84 L.J.K.B. 2214, 2216, where Bailhache J. holds that for these reasons a written statement can never form part of the res gesta of a collision.
99 (1954) 38 Cr.App.R. 107.
99a United States courts reject statements tendered as res gesta if there is no evidence when the statement was made: Salas v. Peop. (1911) 51 Colo. 461, 118 P. 992; Miller v. State (1943) 168 S.W. 2d 864 (Tex.).
1 (1862) 8 L.T. 175, 164 E.R. 1228. Cresswell J.O.
2 As in Aveson v. Kinnaird, note 72, Part I.
3 (1857) 2 Irv. 641, 654. F. Tennyson Jesse, 151. The entries were also rejected on the grounds that there was a motive to misrepresent in that L'A., the deceased, sought to maintain his hold over S., his mistress, who was thinking of becoming engaged to a more eligible suitor (sed qu. how this end would be furthered by making false entries of meetings), that the entries were in pencil thus facilitating alteration and fabrication, that they might record past acts, and that there was no authority except Patch, a case that one of the judges faintly recalled as one where a letter from a murdered man was received. (In R. v. Patch, P. was charged with the murder of B. The alleged motive was that on the day of the crime P. had to pay a debt to B. for which he was pressing, and that P. had no money. P.'s case was that he owed nothing to B., and was already his partner. Mrs. B. produced documents, executed two months before, ex facie showing the purchase by P. of B.'s stock in trade, and a letter from B. to P. promising to try to secure a renewal of the lease of the business premises in P.'s favour: (1806) Gurney's S.H. Report 101–102. The Crown argued that these documents did not relate to a genuine transaction, but were intended to protect B. from his creditors should they press him more successfully than of yore (B. had been made bankrupt two years before): ibid., 184. The evidence point is not discussed: the receipt would be admissible as a declaration by B. prima facie against his interest.)
4 See note 91, Stephen, History of the Criminal Law, 394, and Stephen, Introduction to the Indian Evidence Act, in Woodroffe and Ali, Ameer, Indian Evidence Act, 9th ed.54, 56.Google Scholar The relevant section in the latter Act is s. 8, explanation 1.
5 (1872) 12 Cox 230.
6 Stone ((1939) 55 L.Q.R. 74) accepts the principle that the act must be in issue or relevant, and cites Coltman, J. in Wright v. Tatham (1837)Google Scholar 7 A. & E. 361 for the proposition that the union of an irrelevant act and an inadmissible declaration cannot render them admissible. Yet surely the act was in itself irrelevant (Phipson, 9th ed., 78), and the declaration by itself was inadmissible and could not make the act relevant.
7 Previous threats could be proved by witnesses who heard E. utter them, but Mrs. E.'s declaration was contemporaneous neither with the threats nor with the ultimate assault. A declaration of a victim substantially contemporaneous with one attempt to poison has been used as a nexus between that and a previous attempt: Lamson (note 85, Part I), but that ruling cannot apply here.
8 Shirley v. State (1906) 144 Ala. 35, 40 So. 269. Prosecution for assault with intent to kill. Declaration by child of victim as wife of victim opened the door.
9 Means v. State (1881) 38 Am.Rep. 640. Prosecution for murder. Deceased made this statement as he was sitting in church looking out of the window. He at once went to the door, and the fatal shots were fired.
10 See n. 4, Part II.
11 Evidence of Anne Brooks: (1857) Bennett's S.H. Report, 53. Also in R. v. Barlow (see n. 40, Part I), apart from S.'s sarsaparilla declaration there was evidence that S., formerly in good health, had suddenly become ill, that B. had just visited her and that he had poison in his possession at his lodgings.
12 Cockburn C.J. conceded that one of the reasons that induced him to reject the Bedingfield declaration was this consideration: 15 L.J. 18. It may be the underlying explanation of R. v. Sales (1936) S.R. 55. S. was charged with the murder of D., his landlady. S. knocked on D.'s door. D. spoke to him, and then returned inside, where she spoke to L., her paramour. Three minutes later S. again knocked. D. came out and went with S. to his room thirty yards away. They talked for a few minutes, and then a rifle shot was heard. L. came out, and found D. lying shot, and S. holding a rifle. The High Court of Southern Rhodesia refused to allow L. to testify as to what D. said to him after answering the first knock.
13 (1946) 62 L.Q.R. 226.
14 In the U.S.A., at the trial of H. for murder, the testimony of a witness, proffered as res gesta, that he heard a scream, and about three minutes after, a woman came to him, and asked for help, saying that H. was killing a man and his wife, was rejected as not at the scene of the homicide, nor in sight or hearing of the accused or victim, and not spontaneous: Halfrich v. State (1936) 165 So. 285.
15 See n. 57, Part I.
16 The same considerations may apply to a statement made at the end of the transaction—see the similar dilemma facing Cockburn C.J. (n. 59, Part I). The difficulty stems from the very nature of res gesta evidence, but should not inevitably lead to the view that such evidence is admissible only to corroborate or explain, even where sufficiently proximate. It is submitted that in State v. Bussey (1926) 110 So. 626 (Louisiana) the court laid down too wide a proposition. B. was charged with murdering her child aged five with mercury poison. It was proved that the child died of this poison, but the only evidence against B. was a declaration by the child to a hospital nurse, twenty-eight hours after the alleged administration, that her mother had made her eat soap on toast bread, and it tasted nasty. The evidence was rejected on the ground that it was the only part of the transaction that was proved at all, and that it was proceeding in a circle to use the declaration as proof of facts necessary to constitute the declaration part of the res gesta. The exclusion was amply justified on the facts: the statement was made far too long after the transaction, and though it is not an absolute bar to res gesta evidence that it comes from one probably too young to be a witness (see Thomas v. State (1905) 47 Tex.Cr.Rep. 534, 84 S.W. 823), this factor would give any court pause in the absence of corroboration. But it is submitted that had some such statement come from an adult victim at the first moment that he began to feel ill it would have been admissible.
17 (1908) 1 Cr.App.R. 158 (Court of Criminal Appeal).
18 Op. cit., 82.
19 The point is well made by Kenny, op. cit., 343, n. 9.
20 (1877) 16 Cox 204, 205: “The acts and words of the deceased in carrying out a pre-arranged plan were evidence against J.”
21 (1873) 13 Cox 293. No reasons are given. It was also admitted as a declaration by a deceased person in the course of duty.
22 (1875) 13 Cox 171.
23 See Ghaui, n. 13, Part II at p. 228, where one reason given by the judge for rejecting the boy's statement is that it might have been facetious. In the latter category seem to fall two declarations rejected as res gesta in U.S. street accident cases:—Lee v. Houston Electric Co. (1941) 152 S.W. 2d 379—by a bystander: “Well, boy, you tore up a good street car.” Smith v. St. Louis Ry. Co. (1938) 123 S.W. 2d 198—by a motorman after collision with a taxi: “This is one damn good way to get rid of the cabs.”
24 In most American states, declarations of the Wainwright class are received on the principle of Hillmon's Case (1892) 145 U.S. 285, but in some only if they accompany an act as in Wainwright itself: Comm. v. Palma (1920) 268 Pa. 434, 112 Atl. 26. Wigmore ridicules the latter limitation in (1913) 8 Ill.L.R. 204. Chafee ((1924) 37 Harv.L.R. 513, 520) considers that Lloyd v. Powell [1914] A.C. 733 (H.L.), admitting declarations of mental state to prove a previous act of procreation, is hard to explain in view of cases like Wainwright, rejecting declarations of intention to prove a subsequent act.
25 (1699) 13 How.St.Tr. 116–119.
26 The American states that do not accept Hillmon's case require a declaration to be accompanied by an act, as in Nordgren v. People (1904) 211 Ill. 425, 71 N.E. 1042—murder trial—defence suicide—the deceased kept whisky and poison in her room, and confessed that her inability to control her appetite for drink worked upon her spirits and depressed her. See also Jessop (supra, n. 20, Part II)—remarks accompanying the purchase of laudanum.
27 Quaere whether a person about to commit suicide can be said to be under a settled hopeless expectation of death.
28 [1912] 3 K.B. 19 (Court of Criminal Appeal).
29 See n. 80, Part I.
30 Burns v. State (1873) 49 Ala. 370; Pitman v. State (1860) 22 Ark. 354; People v. Cellura (1939) 284 N.W. 643.
31 Layton v. State (1908) 107 S.W. 819.
32 (1887) 5 S.W. 153, 23 Tex.App. 42. See also Bronson v. State (1910) 59 Tex.Cr. 17, 21—“Res gesta is independent, superior to, and cannot be restricted or limited to the rules relating to admissions or confessions made after arrest.” Bryant v. State (1951) 244 S.W. 2d 662 (Tex.); Head v. State (1870) 44 Miss. 731; Tillison v. State (1946) 27 So. 2d 43 (Alabama); State v. Carter (1954) 275 P. 2d 847 (New Mexico).
33 Q.E. v. Nana (1889) 14 Bom. 260. High Court of Bombay (Full Bench).
34 (1840) 9 C. & P. 364.
35 (1899) 76 Am.S.R. 718. Court of Criminal Appeals of Texas.
36 Cockburn C.J. would reject. Perhaps a little too late for Thayer.
37 R. v. Littleboy [1934] 2 K.B. 408.
38 The Times, July 5, 1932.
39 e.g., Gibson (n. 28), Teper (n. 50), Khijiruddin (n. 86), Part I.
40 The Times, March 8, 1856.
41 Stephen, , Digest of the Law of Evidence, 12th ed., 8.Google Scholar
42 Ibid.
43 See n. 24, Part I.
44 R. v. White (1922) 17 Cr.App.R. 60; R. v. Dibble (1908) 1 Cr.App.R. 155.
45 R. v. Birch (1924) 18 Cr.App.R. 26; 93 L.J.K.B. 385.
46 Proof of Guilt, 145–146.
47 (1948) 62 Harv.L.R. 192–196.
48 This rule was not infringed in the case of John Williams by Channell J. at Lewes Assizes in 1911, or by Lord Alverstone in the C.C.A. Sir Patrick Hastings, counsel for the accused, makes a completely unwarranted attack upon the L.C.J. in Cases in Court, 303, which unfortunately receives some support from Dr. Glanville Williams, op. cit., 146, n. 5, where the case is cited as Power (in fact the name not of the accused but of the main prosecution witness). There F.S., Williams' mistress, made a statement at the police court implicating him, but withdrew it at the trial. Hastings argued that it was not evidence, and accuses the L.C.J. of making no reference to the point in his judgment. In fact the case is reported ((1913) 8 Cr.App.R. 133), the matter is dealt with at length, and the court accept the position that as F.S. did not wholly withdraw her evidence at the police court, but simply said that the events described by her occurred on the 8th, and not on the 9th, the day of the murder, as she had previously said, it was open to the jury to decide that the events she described occurred on the 9th.
48a The retraction may also be due to gangsters' “honour”: R. v. Fraser and Warren, The Times, November 6, 1956.
49 So described by Cowen and Carter, op. cit., 4.
50 On such dangers of hearsay evidence in general, see Morgan, (1948) 62 Harv. L.R. 177.
51 See R. v. Leland (1951) 11 C.R. 152, 160. The chambermaid's report of Cook's statement to her after his night of agony, at the trial of Palmer, was more damning to Palmer than her evidence before the Coroner: she may well have been induced by the strong public feeling against the accused to improve upon her original version. See Bennett's S.H. Report 47, and comment of Serjeant Shee for the defence: 204.
52 R. v. Cash, The Times, August 23, 1875.
53 Cited Palmer, Notable British Trials, 291.
54 15 L.J. 5.
55 Notable British Trials, 157.
56 (1914) 10 Cr.App.R. 141, 148.
57 Harris v. D.P.P. [1952] A.C. 694 (similar fact evidence).
58 R. v. Jenkins (1945) 31 Cr.App.R. 15 (suggestion that where the accused has, under s. 1 (f) (ii) of the Criminal Evidence Act, 1898, laid himself open to proof of previous convictions by attacking the character of the prosecution witnesses, Crown counsel should first ask permission of the court before seeking to prove such convictions, and the court may reject the evidence even if it considers it prima facie admissible).