No. 12274 INTHE 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 EighteenthJudicialDistrict, Honorable

### W. W. Lessley, Judge presiding. Counsel of Record : ForAppellant: Morrow,

### ,Nash and Sedivy, Bozeman, Montana. James H. Morrow, Jr. and Edmund P. Sedivy, Jr. argued,

Dozeman, Montana. SethF, 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:

## m251973Mr. Justice Gene B. Daly delivered the Opinion of the Court. This appeal is brought by defendant G. 

### M. Newman, also known as Jack Newman, fromhis conviction of involuntarymanslaughter in connection with the death of hiswife, Elsie Newman, in the district court of the eighteenth judicial district, Gallatin County. He appeals from the final judgment and sentence of sevenyears imprisonment. TheNewrnans weremarried 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 storagebusiness in Bozeman known as Lux Transfer and Storage Company. Prior to the fall of 1971,Mrs. Newman handled the officeportion of the business, including books and accounts. From the testimony it appeared that in recentyears 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 althoughMrs. 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 fellbehind in the officework 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 officework up to date. Mrs. Harris testified that during the period of about threemonths 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 ofalcohol 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 formerhousekeeper who testified shepurchased fivebottles 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. InJuly 1971,Mr. Newman hired a Mrs. Richards to take

over the officework of Lux Transfer. He attempted to combat his wife's drinking problem by keeping the car keys from her, limiting the amount of money shewas able to spend and contacting various bars and the taxi company requesting that they not provide her with liquor. Shewas forbidden to go to the beauty parlor when itwas discovered shewas obtaining liquor fromher 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 shewas 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 bankin Idahonotifying him that a joint savings account containing about $200had been closed. Newman stated hiswife was uncooperativeand an argument ensued. He slapped her twice and shepicked 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 getmoney 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 nextmorning, Satuzday,November 20, 1971,his wife was talking on the telephone and hung up when he came into the kitchen. He discovered shehad been talking tohis 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 shewas crying when he left. Mrs. Marge Arnold, a neighbor, testified that at 7:00 a.m., Saturday, November 20, she received a phone call fromMrs. 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 thenwent 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 shehad also received a call fromMrs. Newman thatmorning between 7:30 and 8:00 requesting her to come to theNewman home. BothMrs. 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 Saturdaymorning, and that shewas 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 BarbaraAsleson, Donna Bedient and Sue Lake testified as toMrs. Newman's appearance, condition, and statements she made to them at the hospital. They also stated they smelled alcohol onMrs. 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 seizureand 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 thatMrs. 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 ambulancedriver took Mrs. Newman in an ambulance and departed for Billings. At about 6:00 a.m., when the ambulance was near Livingston,Doninnoticed thatMrs. Newman was having respiratory difficulties. He attempted to revive her and took herdirectly to the Park County Hospital,where shewas pronounced dead on arrival. Dr. Volney Steele, the pathologistwho performed an autopsy onMonday,November 22,determined the cause of death to be a subdural hemotoma or intercranialblood clot in the frontal left side of the cranial cavity. He stated the subdural hemotoma was caused by a subarachnoid clotwhich 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 subduralbleeding, which he estimated to be under 

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

cause of the intercranialbleeding 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 cirrhosisof 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 Hospitaldid not testify. Mr. Newman traveled to Billings themorning of Sunday, November 21, 1971,and first learned of his wife's death when he arrived at St. Vincent's Hospital. Defendantpresents eleven issues for review: The trial court erred in:

(1)Admitting hearsay testimony of Mrs. Arnold and Mrs. Shaw concerning purported statementsmade to them by Mrs. Newman. (2) Failing to grant defendant's motion to elect between voluntary and involuntarymanslaughter,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 instructionnumber 16 on the subject of excusable homicide. (9)Failing to direct a verdict for thedefendant. (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 sevenyears in the stateprison. Issue (1). We find merit indefendant's contention regarding the admissibility of certain statementspurported 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 itsvalue 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 friendsare hearsay. But the difficult aspect of the "hearsayrule" of evidence,

as ithas 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, isnot applicable in the instant case because a "senseof impendingdeath"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. Inmodern usage the "resgestae" 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)declarationsas to body condition. In each of these instances the basic rationale underlying the "resgestae" exception to the hearsay rule is that the statements are spontaneous and contemporaneous, lending a particular reliability or trustworthiness to the statement. The statementsmade by Mrs. Newrnan to Mrs. Arnold and Mrs. Shawmenotexcited 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 statementswere not declarationsof present

sense impressions or present state of mind, but rather in reference to something that had happened the previous evening. Although the statementsmade by Mrs. Newman did concernher present and previous bodily condition, the requirement still exists that the

res gestae statementsmust be spontaneous and substantially contemporaneouswith the injury causing event (unlessmade to a doctor ormedical person in the course of treatment). Section 93-401-7, R.C.M. 1947,provides: "Declarationswhich are a part of the transaction. Where, also, the declaration,act, or omission formspart of a transaction,which is itself the fact in dispute, or evidence of that fact, suchdeclaration, act or omission is evidence, as part of the transaction." 242 In In re Petition of Peterson, 155Mont. 239,/467 P.2d 281, this Court stated:

~t IwReS gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneouswith it, and serve to illustrate its character." Statev. Broadwater,75Mont. 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: Callahanv. Chicago,Etc. R. Co., 47 Mont. 401, 133 P. 687;Gunderson v. Brewster, 154 Mont. 405, 466 P.2d 589; Anno. 7ALR2d 1324. Here, we find the circumstances surrounding themaking 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 ismade 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

severebeating and an additional beating on Saturday morning and as suchwould be prejudicial. Issue (2). Section 94-2507,R.C.M. 1947,provides: "Manslaughter--voluntaryand involuntary. Manslaughter is the unlawful killing of a human being, withoutmalice. 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 theprincipal elementdifferentiating murder frommanslaughter. "Intent1'is the principal element differentiating voluntary from involuntary manslaughter. Statev. Souhrada, 122Mont. 377, 204 P.2d 792; Peoplev. McManis, 122 C.A.2d

The record indicates the state introduced testimony, over objection, through its witness Mrs. Arnold that on two previousoccasions, once in June 1969, once in the summer of 1970, she

sawMr. 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; "THECOURT: Letme ask you: why are you introducing these? What probative purpose? "MR. OLSON: To indicate that the injuries and subsequentdeath, that the victim received as a result of the November19, through November 21, happenings, isnot the result of any accident, or-anythinglike 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 decidewhether or not the Defendant is criminally responsible for this same similar incident happeninq inNovember 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 ispresently being charged. Statev. Merritt, 138 Mont. 546, 357 P.2d 683; Statev. Gransberry, 140Mont. 70, 367 P.2d 766. However, the entire statement,and particularly the reference to "anactual intended criminal act" indicates that the state introduced evidence of and undertook to prove intent and thus prove voluntarymanslaughter. 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 involuntarymanslaughter, and the state elected to specify the charge as involuntarymanslaughter. This contradictedwhat was, in effect, an earlier election of the state, to prove the crime of voluntary manslaughter when it soughtand was granted permission by the trial court to introduce evidence of intent. The net result of the change in the crime charged was thatportion of Mrs. Arnold's testimonywhich was admitted for thepurpose of proving intentwas now irrelevant, if otherwise admissible. Inview of the fact that the record indicates no attemptby 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 Statev. Bischert, 131Mont. 152, 159, 308 P.2d 969,wherein this Court,quoting from its earlier decision in Fulton

### v. Chouteau County Farmers' 48, Co., 98 ~ont./37P.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 showmaterial facts or conditions. 20Am.Jur., Evidence, section 729,page 609." The four photographs were introduced by the state through its first witness, the Bozeman policeman who took thepictures. The only foundation information established in the police officer's brief testimony was thathe 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 fleshdiscolorations whichwere old and related to disease rather than trauma. The photographs did,however, showvarious bruises which were relatedto trauma and the fact the photographs could tend to arouse sympathy in theminds of the jurors isnot 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 fourphotographs was inadvertentlyprinted 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 substantialnecessity 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 theNewman house, offered by the defense? We find the trial court correctly refused to admit the picture, which was purportedly aportrayal of broken steps. There

was nothing to establish the accuracy of theportrayal,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 instructionsNo. 12 and No. 16. Court's hstruction No. 12, submitted by the state,reads in part: "Youmust also find beyond a reasonabledoubt 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, 125Mont. 566, 242 P.2d 477. We cannot agreewith the state'scontention that thewords Itcontributedto 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 theprosecution was attempting to statewas 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 Thewords of instructionNo. 12do not fairly and accurately state that rule. Court's instructionNo. 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 allprobability these factorswould 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." InstructionNo. 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 acceleratingdeath" type instructionwhich 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