No. 12274 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, 

Plaintiff and Respondent, 

G. M. NEWMAN, a/k/a 

JACK NEWMAN, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorabl e W. W. Less ley, Judge presiding. 

Counsel of Record : 

For Appellant: 

Morrow, , Nash and Sedivy, Bozeman, Montana. 

James H. Morrow, Jr. and Edmund P. Sedivy, Jr. argued, 

Dozeman, Montana. 

Seth F, Bohart, Bozeman, Montana. 

For Respondent : 

Hon. Robert L. Woodahl , Attorney General, Helena, 

Montana, 

Jonathan B. Smith, Assistant Attorney General, argued, 

Helena, Montana. 

Thomas A. Olson, County Attorney, argued, Bozeman, 

Montana. 

Submitted: April 26, 1973 

Decided : m2 5 1973 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal is brought by defendant G. M. Newman, also 

known as Jack Newman, from his conviction of involuntary manslaughter in connection with the death of his wife, Elsie Newman, 

in the district court of the eighteenth judicial district, 

Gallatin County. He appeals from the final judgment and sentence 

of seven years imprisonment. 

The Newrnans were married in 1937. At the time of her 

death Elsie Newman was 53 years of age, Newman was 56 years of 

age. The Newmans owned and operated a moving and storage business in Bozeman known as Lux Transfer and Storage Company. Prior 

to the fall of 1971, Mrs. Newman handled the office portion of 

the business, including books and accounts. 

From the testimony it appeared that in recent years Elsie 

Newman began drinking excessively and had attempted to conceal 

her drinking from others, including her husband. Also in recent 

years her health had been poor; she was considerably overweight; 

suffered from a blood anemia condition; had a hiatel hernia; had 

a swelling and loss of feeling in her legs related to a broken 

leg sustained in the fall of 1967; and had a fluid retention 

condition. 

From the record, it appears that although Mrs. Newman 

was advised by her doctor, family and friends to quit drinking 

she refused their advice and refused to admit she had a drinking 

problem. She fell behind in the office work at Lux Transfer. 

In May 1971, Mrs. Donna Harris, the only child of the Newmans, 

was asked by her father to come from her home in Kansas to help 

bring the office work up to date. Mrs. Harris testified that 

during the period of about three months she assisted her parents 

in their business she found bottles of liquor hidden in the home 

and in the office. She stated her mother constantly smelled of 
alcohol and on one occasion she found her mother passed out 

behind the wheel of the family car. Other witnesses testified 

as to Elsie Newman's drinking including a former housekeeper 

who testified she purchased five bottles of whiskey per week 

for Elsie Newman. 

The daughter stated she sought information from the 

Gallatin county attorney about alcoholic rehabilitation for her 

mother but that her mother would not voluntarily commit herself. 

She and her father decided not to go forward with an involuntary 

commitment. 

In July 1971, Mr. Newman hired a Mrs. Richards to take 

over the office work of Lux Transfer. He attempted to combat 

his wife's drinking problem by keeping the car keys from her, 

limiting the amount of money she was able to spend and contacting various bars and the taxi company requesting that they not 

provide her with liquor. She was forbidden to go to the beauty 

parlor when it was discovered she was obtaining liquor from her 

hairdresser. 

Newman testified: that on Thursday, November 18, 1971 

his wife had been drinking and had fallen three separate times 

in the home that day. She fell twice in the kitchen and once in 

the bedroom. He assisted her in the kitchen but after the fall 

in the bedroom she was holding her head but indicated that she 

was all right. That on the next evening, Friday, November 19, 

1971, upon entering the home he noticed the back steps were 

pulled loose and the handrail pulled over. His wife had a bruise 

on her forehead and she explained she had fallen on the back 

steps, bumping her head. She stated her head hurt a little but 

that she thought it would be all right. 

Later during the evening of Friday, November 19, he 

questioned his wife about a letter he had received from a bank 
in Idaho notifying him that a joint savings account containing 

about $200 had been closed. Newman stated his wife was uncooperative and an argument ensued. He slapped her twice and 

she picked up a kitchen knife and swung it at him. He took the 

knife from her, slapped her two or three times again and grasped 

her by the neck and hair. He stated his wife jerked away and 

the hair he was grasping pulled out in his hand. In the course 

of the argument, Newman claimed his wife admitted she had closed 

out the savings account to get money to pay interest on a $2,000 

loan she had taken out at a local bank without his knowledge. 

After the argument his wife went to bed but she arose early the 

next morning to fix his breakfast. 

He further testified that when he awoke the next morning, 

Satuzday, November 20, 1971, his wife was talking on the telephone 

and hung up when he came into the kitchen. He discovered she had 

been talking to his aunt and he then telephoned the aunt and told 

her his side of the argument. He stated that he left the house 

at about 8:30 a.m. and told his wife he was going to find out 

about the bank loan and withdrawal. He stated she was crying 

when he left. 

Mrs. Marge Arnold, a neighbor, testified that at 7:00 a.m., 

Saturday, November 20, she received a phone call from Mrs. Newman 

requesting her to come to the Newman home. Mrs. Arnold waited 

until the pickup truck Mr. Newrnan drove was gone from the house 

and then went over, arriving at about 8:45 a.m. When she arrived 

Mrs. Newman and Mrs. Niza Shaw, an elderly neighbor, were there. 

Mrs. Shaw testified she had also received a call from Mrs. Newman that morning between 7:30 and 8:00 requesting her to come 

to the Newman home. 

Both Mrs. Arnold and Mrs. Shaw testified at trial as to 

Mrs. Newman's appearance, describing her face as red and swollen. 
They also testified as to the conversation they had with Mrs. 

Newman. Mrs. Newman told them defendant had beaten her Friday 

night after supper and again Saturday morning, and that she was 

frightened and had to get out of the house. Mrs. Arnold testified that Mrs. Newman asked her to call her lawyer, Mr. Drysdale, 

and her doctor, Dr. Epler. Mrs. Arnold left to make the calls 

and being unable to reach either person, she returned to the 

Newman house at 10:30 a.m. and at the request of Mrs. Newman 

she called Gallatin county attorney, Thomas Olson. 

County Attorney Olson testified he advised Mrs. Arnold 

to get Mrs. Newman out of the house and into the hospital. Another 

neighbor, Jessie Hubbert, took Mrs. Newman to the Bozeman Deaconess 

Hospital at about 11:30 a.m. 

Nurses Barbara Asleson, Donna Bedient and Sue Lake testified as to Mrs. Newman's appearance, condition, and statements 

she made to them at the hospital. They also stated they smelled 

alcohol on Mrs. Newman's breath. At about 8:00, 9:30 and 11:30 

p.m. that night, Saturday, November 20, Mrs. Newman had seizures. 

Nurse Bedient notified Dr. Craft of each seizure and after the 

seizure at 11:30 p.m. he came to the hospital. Dr. Craft notified Mr. Newman to come to the hospital and advised him that Mrs. 

Newman should be taken to Billings for an examination by Dr. Neal 

Meyer, a neurosurgeon. Mr. Newman agreed and talked to his wife 

at that time. Dr. Craft phoned Dr. Meyer and made arrangements 

for Mrs. Newman to be transported by ambulance to St. Vincent's 

Hospital in Billings. 

At 5:30 a.m., Sunday, November 21, Robert Donin and another ambulance driver took Mrs. Newman in an ambulance and departed for Billings. At about 6:00 a.m., when the ambulance was 

near Livingston, Donin noticed that Mrs. Newman was having respiratory difficulties. He attempted to revive her and took her 
directly to the Park County Hospital, where she was pronounced 

dead on arrival. 

Dr. Volney Steele, the pathologist who performed an 

autopsy on Monday, November 22, determined the cause of death 

to be a subdural hemotoma or intercranial blood clot in the 

frontal left side of the cranial cavity. He stated the subdural hemotoma was caused by a subarachnoid clot which he 

estimated to be between 36 and 48 hours old at the time of 

autopsy. Dr. Steele stated he felt the origin of the subarachnoid clot was from trauma which could have occurred up to four 

days prior to the subdural bleeding, which he estimated to be 

under 24 hours old at the time of death. He stated that the 

cause of the intercranial bleeding was external trauma, such as 

a blow to the head or possibly an indirect trauma such as a fall 

to the buttocks. In addition to the intercranial blood clots 

he determined to be the cause of death, he also found various 

contusions of the face, neck and scalp, early cirrhosis of the 

liver, nodular goiter and a fluid condition in the lungs. 

Dr. Charles Craft testified he had no medical opinion as 

to the cause of Mrs. Newman's death. The examining physician at 

the Park County Hospital did not testify. 

Mr. Newman traveled to Billings the morning of Sunday, 

November 21, 1971, and first learned of his wife's death when he 

arrived at St. Vincent's Hospital. 

Defendant presents eleven issues for review: 

The trial court erred in: 

(1) Admitting hearsay testimony of Mrs. Arnold and Mrs. 

Shaw concerning purported statements made to them by Mrs. Newman. 

(2) Failing to grant defendant's motion to elect between 

voluntary and involuntary manslaughter, and as a result erred in 

admitting testimony of prior acts and incidents. 
(3) Admitting into evidence pictures of the deceased. 

(4) Refusing to admit into evidence a picture of the 

Newrnan porch. 

(5) Submitting court's instruction number twelve to the 

jury on the subject of proximate cause and in refusing defendant's offered instruction number 3. 

(6) Submitting court's instruction number 14, conmenting on the subject of assault. 

(7) Submitting Court's instruction number 16 on the 

subject of hastening death. 

(8) Failing to submit the defendant's instruction number 16 on the subject of excusable homicide. 

(9) Failing to direct a verdict for the defendant. 

(10) Failing to submit the defendant's offered instruction number 13 on conjecture, suspicion or probabilities. 

(11) Its sentence and judgment ordering defendant to 

serve seven years in the state prison. 

Issue (1). We find merit in defendant's contention regarding the admissibility of certain statements purported to 

have been made by Mrs. Newrnan to Mrs. Arnold and Mrs. Shaw on 

Saturday, November 20, 1971. "Hearsay1' is testimony or evidence 

of someone's words or conduct outside the court, when offered 

in court to prove the truth of the thing being asserted, and 

thus resting for its value upon the credibility of the out-ofcourt asserter. 

We find no difficulty in determining that Mrs. Newman's 

out-of-court statements as repeated by her two friends are hearsay. But the difficult aspect of the "hearsay rule" of evidence, 

as it has developed from the common law and codified by statute, 

is not the rule itself, but rather the exceptions to the rule. 

The "dying declarations" exception as stated in section 93-401-27, 
R.C.M. 1947, is not applicable in the instant case because a 

"sense of impending death" was never demonstrated. The catchall 

hearsay exception termed "res gestae" is the principle apparently 

relied upon by the trial court in ruling on the admissibility of 

these hearsay statements. In modern usage the "res gestae" 

exception actually involves four distinct types of cases: (1) 

excited utterances, (2) declarations of present sense impressions, 

(3) declarations as to state of mind, and (4) declarations as to 

body condition. In each of these instances the basic rationale 

underlying the "res gestae" exception to the hearsay rule is 

that the statements are spontaneous and contemporaneous, lending 

a particular reliability or trustworthiness to the statement. 

The statements made by Mrs. Newrnan to Mrs. Arnold and 

Mrs. Shaw menot excited utterances, for they were made a period 

of twelve to thirteen hours after the alleged beating. Mrs. Newman's conduct during that period of time appears to have been 

relatively calm. The statements were not declarations of present 

sense impressions or present state of mind, but rather in reference 

to something that had happened the previous evening. Although 

the statements made by Mrs. Newman did concern her present and 

previous bodily condition, the requirement still exists that the 

res gestae statements must be spontaneous and substantially contemporaneous with the injury causing event (unless made to a doctor or medical person in the course of treatment). 

Section 93-401-7, R.C.M. 1947, provides: 

"Declarations which are a part of the transaction. 

Where, also, the declaration, act, or omission 

forms part of a transaction, which is itself 

the fact in dispute, or evidence of that fact, 

such declaration, act or omission is evidence, 

as part of the transaction." 

242 

In In re Petition of Peterson, 155 Mont. 239,/467 P.2d 

281, this Court stated: 

~t I wReS gestae are the circumstances, facts and 

declarations which grow out of the main fact, 

are contemporaneous with it, and serve to illustrate its character." State v. Broadwater, 
75 Mont. 350, 243 P. 587, 589. Declarations 

made while the mind of the speaker is laborinq under the excitement aroused by the accident, before there was time to reflect and 

fabricate, are admissible.'" (Emphasis 

supplied.) 

See also: Callahan v. Chicago, Etc. R. Co., 47 Mont. 401, 133 

P. 687; Gunderson v. Brewster, 154 Mont. 405, 466 P.2d 589; 

Anno. 7 ALR2d 1324. 

Here, we find the circumstances surrounding the making 

of the hearsay statements indicate that Mrs. Newman did have 

time to reflect, plan and, if it suited her purpose, fabricate. 

Therefore the res gestae rule does not apply and the testimony 

should properly have been excluded. 

We cannot agree with the state's contention that the 

issue of prejudicial error on this point is made moot by the 

fact that Mr. Newman admitted slapping his wife five times on the 

Friday night in question. The hearsay statements report a more 

severe beating and an additional beating on Saturday morning 

and as such would be prejudicial. 

Issue (2). Section 94-2507, R.C.M. 1947, provides: 

"Manslaughter--voluntary and involuntary. Manslaughter is the unlawful killing of a human 

being, without malice. It is of two kinds: 

"1. Voluntary, upon a sudden quarrel or 

heat of passion. 

"2. Involuntary, in the commission of an 

unlawful act, not amounting to felony; or 

in the commission of a lawful act which 

might produce death, in an unlawful manner, 

or without due caution or circumspection." 

"Malice" is the principal element differentiating murder 

from manslaughter. "Intent1' is the principal element differentiating voluntary from involuntary manslaughter. State v. Souhrada, 122 Mont. 377, 204 P.2d 792; People v. McManis, 122 C.A.2d 

The record indicates the state introduced testimony, over 

objection, through its witness Mrs. Arnold that on two previous 
occasions, once in June 1969, once in the summer of 1970, she 

saw Mr. Newman slap his wife; that she had observed bruises on 

Mrs. Newman in the months preceding her death. 

Regarding the admissibility of this testimony, this exchange took place outside the presence of the jury; 

"THE COURT: Let me ask you: why are you introducing these? What probative purpose? 

"MR. OLSON: To indicate that the injuries and 

subsequent death, that the victim received as a 

result of the November19, through November 21, 

happenings, is not the result of any accident, 

or-anything like that, but is the result of 

an actual intended criminal act of the Defendant. And we introduce this as a similar type 

incident, which has probative value in having the 

Jury decide whether or not the Defendant is 

criminally responsible for this same similar 

incident happeninq in November of 1971." 

(Emphasis supplied. ) 

The second sentence of the prosecutor's statement, standing alone, 

would appear violative of a fundamental precept of Montana's 

criminal law; evidence of past, remote, independent and unrelated 

crimes is inadmissible to prove guilt of the crime for which defendant is presently being charged. State v. Merritt, 138 Mont. 

546, 357 P.2d 683; State v. Gransberry, 140 Mont. 70, 367 P.2d 

766. However, the entire statement, and particularly the reference to "an actual intended criminal act" indicates that the 

state introduced evidence of and undertook to prove intent and 

thus prove voluntary manslaughter. 

The record indicates that at the end of defendant's case 

the trial court granted a defense motion requiring the state to 

elect between a charge of voluntary and involuntary manslaughter, 

and the state elected to specify the charge as involuntary manslaughter. This contradicted what was, in effect, an earlier 

election of the state, to prove the crime of voluntary manslaughter 

when it sought and was granted permission by the trial court to 

introduce evidence of intent. The net result of the change in 

the crime charged was that portion of Mrs. Arnold's testimony 
which was admitted for the purpose of proving intent was now 

irrelevant, if otherwise admissible. In view of the fact that 

the record indicates no attempt by the state or the trial court 

to admonish the jury to disregard this testimony, we find defendant's second issue on appeal to be meritorious. 

Issue (3). Was it error to admit into evidence four 

color photographs taken of Mrs. Newman's embalmed body by a 

Bozeman policeman? 

Both the state and defendant cite State v. Bischert, 

131 Mont. 152, 159, 308 P.2d 969, wherein this Court, quoting 

from its earlier decision in Fulton v. Chouteau County Farmers' 

48, 

Co., 98 ~ont./37 P.2d 1025, stated: 

It' * * * photographs stand on the same footing 

as diagrams, maps, plans and the like, and as 

a general rule, whenever relevant to describe a 

person, place or thing, they are admissible for 

the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case.' 

"Photographs that are calculated to arouse the 

sympathies or prejudices of the jury are properly 

excluded, particularly if they are not substantially necessary or instructive to show material 

facts or conditions. 20 Am.Jur., Evidence, section 729, page 609." 

The four photographs were introduced by the state through 

its first witness, the Bozeman policeman who took the pictures. 

The only foundation information established in the police officer's 

brief testimony was that he had examined the photographs and that 

in his opinion they accurately depicted what was represented 

therein. Dr. Steele, the state's last witness, who testified two 

days later in the trial, made no reference to the photographs 

throughout the course of his testimony. 

Defendant contends the rule of Bischert is applicable 

because the state's photographs showed some flesh discolorations 

which were old and related to disease rather than trauma. The 

photographs did, however, show various bruises which were related 
to trauma and the fact the photographs could tend to arouse 

sympathy in the minds of the jurors is not the only determinative issue. The probative value of these photographs was never 

explained to the jury by the medical witness. 

Near the end of the trial it was discovered that one of 

the four photographs was inadvertently printed with the negative 

reversed. This photo was obviously inadmissible. As to the other 

three, we hold they were not properly admitted into evidence because there was no proper showing made by the state to establish 

the substantial necessity or instructive value of the photographs 

as a foundation for their admissibility. 

Issue (4). Did the trial court err in refusing to admit 

into evidence a picture of the back porch of the Newman house, 

offered by the defense? 

We find the trial court correctly refused to admit the 

picture, which was purportedly a portrayal of broken steps. There 

was nothing to establish the accuracy of the portrayal, nor to 

indicate that the picture would serve any instructive purpose 

beyond the testimony of Mr. Newman regarding the previous condition of the steps or the contention that his wife had fallen on 

the porch. 

Of the six remaining issues for review, we find merit 

only in issues (5) and (7), concerning the court's given instructions No. 12 and No. 16. 

Court's hstruction No. 12, submitted by the state, reads 

in part: 

"You must also find beyond a reasonable doubt that 

the actions of the Defendant contributed to or was 

the proximate cause of the death of Elsie Newman, 

deceased. " (Emphasis supplied. 1 

The emphasized words are an incorrect statement of the law. 

State v. Mally, 139 Mont. 599, 366 P.2d 868; State v. Bosch, 

125 Mont. 566, 242 P.2d 477. We cannot agree with the state's 
contention that the words Itcontributed to - or was the proximate 

cause of" are "two statements of the same idea". The use of 

the word "or" in the quoted statement could be understood to 

mean that the actions of the defendant need not have proximately 

caused the death but only contributed to it. 

Perhaps the rule of law the prosecution was attempting 

to state was that found in 40 C.J.S. ~omicide §ll(b): 

"The act of the accused must be a proximate 

cause of death but need not be the direct, immediate cause. It 

The words of instruction No. 12 do not fairly and accurately 

state that rule. 

Court's instruction No. 16, submitted by the state, reads: 

"You are instructed that if you find from the 

evidence in this case that the deceased, Elsie 

Newman, was laboring under the effects of a poor 

physical condition, or had an alcoholic problem, 

to such a degree that in all probability these 

factors would have ultimately shortened her life, 

and if you further find that the Defendant inflicted a blow or blows upon the deceased which hastened 

or accelerated her death, that this is sufficient 

to constitute the crime of involuntary manslaughter 

as previously defined in these instructions." 

Instruction No. 16 amounts to a comment on the evidence 

and is also defective for the same basic reason as instruction 

No. 12. California Jury Instructions - Criminal, 3rd Ed., 88.48, 

provides an example of an "unlawful injury accelerating death" 

type instruction which does not tend to mislead or confuse a 

jury as to the element of proximate cause. 

For the reasons stated, the judgment is reversed and the 

cause remanded for new trial. 

Justice