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January 15, 1946


The opinion of the court was delivered by: HOLTZOFF

The defendant, Milis M. Edmonds, was convicted of murder in the second degree and moves for a new trial. He was charged with stabbing one William D. Brock, Jr., in the neck with a knife, thereby inflicting on him a mortal wound.

The evidence tended to show the following facts: The defendant was the manager of a restaurant in Washington, D.C., known as the White Tower and located on Fourteenth Street near Irving. About six o'clock on the morning of October 21, 1945, a party consisting of two men and two women entered the establishment and occupied a booth. Brock, a Chief Petty Officer in the Navy, was one of them. Apparently they were partially under the influence of intoxicating liquor and acted in a somewhat hilarious manner. It was asserted that one of the members of the party threw a salt shaker in the direction of a waitress named Ella Jones, who immediately telephoned for the police. The defendant then came out of one of the back rooms and was informed by Ella Jones of what had happened. Carrying a knife in his right hand, he approached the booth in which the four customers were seated and inquired who had thrown the salt shaker. The reply was that none of them had done so. The two women members of the party promptly arose and left. They were followed by the two men, who, however, returned and expostulated with the defendant, while standing in the doorway. Some of the witnesses stated that during the verbal altercation, Brock kicked the defendant. The latter raised his right hand and stabbed Brock in the neck. The wound proved fatal and Brock died about a half-hour later.

 The defendant was indicted on a charge of murder in the second degree. At the trial he denied that he had stabbed Brock, claiming that he had no knife in his possession, but that the implement in his hand was a spoon that he had picked up from the counter. He also asserted that if in fact he stabbed Brock, he did so in self-defense.

 In submitting the case to the jury, the court defined murder in the second degree and manslaughter, explaining the distinction between them and indicating that if the defendant was convicted, he could be found guilty of either offense. The jury found the defendant guilty of the former.

 The defendant now moves for a new trial on several grounds, which will be considered separately.

 First, it is contended that a verdict of guilty of murder in the second degree was contrary to the evidence, and that the defendant should have been convicted of manslaughter, if at all. In its charge to the jury, the court defined murder in the second degree as a killing with malice aforethought, but without a purpose or intent to kill and without premeditation and deliberation. On this subject the court instructed the jury in detail. These instructions may be briefly summarized as follows. A killing under the influence of passion, induced by insufficient provocation, may be murder in the second degree, and an accidental or unintentional killing constitutes murder in the second degree if it is accompanied by malice. Legal malice does not necessarily mean a malicious or malevolent purpose or personal hatred or hostility toward the deceased. It is a state of mind which shows a heart unmindful of social duty and fatally bent on mischief, or which prompts a person to do an injurious act wilfully to the injury of another. Liggins v. United States, 54 App.D.C. 302, 297 F. 881. Manslaughter, on the other hand, is the unlawful killing of a human being without malice aforethought. If the killing is committed in a sudden heat of passion, caused by adequate provocation, the crime may be reduced from murder to manslaughter. A trivial or slight assault, however, is not sufficient provocation for that purpose. No exception was taken to these portions of the charge.

 The jury was fully warranted in reaching the conclusion that even if Brock kicked the defendant, this circumstance was not adequate provocation for the stabbing. The court is of the opinion that the verdict is in accord with the weight of the evidence and that a verdict of guilty of murder in the second degree was more reasonable than would have been a conviction of manslaughter. At the defendant's request the court charged the jury at some length on the law of self-defense, although the defendant's contention on this score manifestly rested on a foundation of sand. The mere fact that the defendant approached the customers with a knife in his hand and wantonly and ruthlessly stabbed Brock during the altercation, exhibited a high degree of personal depravity. The killing was an atrocious act and did not have even a semblance of justification. The two women in the party had promptly made their departure at the commencement of the quarrel. While the conduct of the two men was apparently boisterous and disagreeable, yet neither of them was armed. No reason is discernible for the use of a deadly weapon under the circumstances.

 The second error claimed by the defendant in support of the motion for a new trial, is found in a ruling of the court admitting testimony that immediately after he was stabbed, the deceased exclaimed, 'I've been stuck.' An objection to its introduction was overruled on the theory that it was a part of the res gestae. The defendant contends that it was inadmissible hearsay.

 There are few topics in the law of evidence that have excited so much interest and elicited so much discussion as the exceptions to the rule which excludes hearsay evidence as incompetent, i.e., testimony as to a statement made within the hearing of the witness by another person. Such testimony is deemed unfit to be received because of its unreliability. It is considered untrustworthy: first, because of a risk of error in recollection and narration; and second, and more important, because of the inability to subject the testimony to the acid test of cross-examination, which would be possible if the person uttering the statement were produced as a witness. There are, however, several types of hearsay testimony which, in spite of these inherent defects, are shown by experience to be worthy of belief. On this basis exceptions to the hearsay rule have been evolved.

 Spontaneous exclamations uttered contemporaneously with or immediately after an unusual occurrence and statements made shortly thereafter by a person who is still under the spell of its effect, are admissible in evidence and form one of the important exceptions to the hearsay rule. It is a well recognized psychological phenomenon that a person making an exclamation or a statement while under the influence of the excitement or shock caused by witnessing or participating in an extraordinary event, such as a murder or a serious accident, is unlikely to fabricate an untruth, but, on the contrary, has a tendency to disclose what is actually on his mind. The mental stress and nervous strain preclude deliberation and bar reflection. Declarations made while the spell endures are uncontrolled. They are practically reflex actions and may be said to be verbal photographs or images of the contents of the brain. Such utterances are likely to be made without any calculation as to their potential effect and without regard to their possible consequences. They are apt to be the truth as the person knows it. Consequently, it is safe to accept testimony as to expressions of this type, even in the absence of an opportunity to cross-examine the person who gave vent to them. These considerations form the underlying reason for this exception to the hearsay rule. Declarations included in this category are frequently referred to by the convenient Latin phrase, 'res gestate,' which literally translated means 'things done' or 'the transactions.' It should be observed, however, that this term is not limited to such expressions, but also comprehends other matters.

 One of the earliest authorities on this point is found in a ruling by Lord Chief Justice Holt, in a case decided by him at nisi prius in 1694, Thompson v. Trevanion, Skin. 402, which involved an action brought by a husband and wife for assault and battery on the latter. The Lord Chief Justice held that 'what the wife said immediate upon the hurt received, and before that she had time to devise or contrive any thing for her own advantage, might be given in evidence.'

 In Rex v. Foster, 6 C. & P. 325, involving a prosecution for manslaughter, in which the defendant was charged with killing the deceased by driving a cabriolet over him, a witness was permitted to state that immediately after the accident he approached the deceased and asked him what was the matter, and to relate what the deceased had replied.

 The Supreme Court has approved and applied this doctrine. In Travellers' Insurance Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437, the Court sustained the admission of testimony as to a statement made by the deceased to his wife that he had just fallen down stairs and hit the back of his head.

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