People v. Ivory Thomas , 14 Mich. App. 642 ( 1968 )

Lesinski, C. J.

Michael Railsbach, age 18, was found with a stab wound in the chest March 30, 1965 at about 7:40 p.m. near Dueweke Park. He was taken to a nearby flat where he collapsed. In response to a radio call, police officers rushed Railsbach to Receiving Hospital where he arrived at 8:08 p.m. He died on the operating table at 9:25 p.m.

At the hospital Railsbach regained consciousness long enough to answer certain questions asked of him by officer Leon Studzinski.

At the trial of the defendant, officer Studzinski testified as follows:

“We received the call at 7:45 p.m., and approximately five minutes later we were there, about 7:50 p.m. We went to that address, 4739 Field Avenue and we went upstairs and—to an upstairs fiat and saw—we saw the deceased lying on the floor; his shirt was open and he had a chest wound and-1 made conversation with him; asked him first of all his name and he was able to get out and I was able to understand, ‘Michael,’ and the rest was incoherent. I asked for an address, which was furnished to me on paper by the occupants of the house. I asked him then what happened and he stated he was stabbed and I asked him if he knew by whom and he said he did not. This is information I received at the scene as the deceased was rolling from side to side clutching his chest, and then became, unconscious. We hurriedly rushed.him to Receiving Hospital where, at the hospital, he regained consciousness and we again asked him what happened and he said he was stabbed. I said, Was that the result of a fight or a robbery or what,’ and he said he had been robbed and I asked him of what and he says his wallet was taken containing $6.00. I said, ‘What did the man look like,’ and he described the man as colored, approximately 17 years of age, 5 feet 10 inches tall, medium build and wearing a green jacket. He related that the assailant had asked him for a cigarette and as he was pulling the cigarette out he was stabbed. That was all.”

At the trial this testimony was allowed in evidence over the objection of defense counsel, either as dying declarations or as res gestae utterances. On appeal the admission of this testimony is sought to be upheld • solely on the basis that it comes under the res gestae exception to the hearsay rule.

The defense contends that the statements attributed to the deceased, Railsbaeh, were not spontaneous and were the result of leading questions put to him by officer Studzinski.

In Rice v. Jackson (1965), 1 Mich App 105, 111, the admissibility of res gestae statements was reviewed exhaustively by this Court. Under the standards of Rice, supra, which have applicability in this criminal action, statements are admissible in evidence under the following conditions:

“(1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that th'e statement must have been made before there has been time to contrive and misrepresent; and (3:) the statement must relate to the circumstances of the occurrence preceding it.”

Testing the facts of this case against these standards, we find the objected-to testimony properly admissible in evidence.

The occurrence involving the deceased, beyond a question, was such as would give rise to spontaneous and unreflecting answers. The lapse of time between the stabbing and the making of the statement did not exceed 40 minutes.¹ Of this time the deceased was unconscious part of the time and at others in great pain.² The statement related directly to circumstances surrounding the stabbing.

The most serious challenge to the admissibility of the contested testimony is made on the basis that the reason for the stabbing was established by the following question asked of the deceased by officer Studzinski:

“Was that the result of a fight or a robbery or what!”

The deceased responded that he had been robbed and in response to “of what” he said his wallet containing $6.

The testimony which also related to the deceased’s description of his assailant and some of the circumstances of the attack upon him were very damaging to the defense as it tied in other circumstantial evidence which was introduced in the trial.

The testimony is challenged on the basis that the questions suggested the answer. Under the circumstances of this case we do not find this objection valid. The answer to the question “Was that the result of a fight or a robbery or what” requires an answer beyond that of a simple “yes” or “no,” or the election between alternatives. The response to this question had to originate in the mind of the deceased. The question then is, was the response spontaneous and unreflecting, and made before there was time to contrive and misrepresent. In passing upon the answer to this question, the trial judge is given considerable discretion. See White v. City of Marquette (1905), 140 Mich 310.

We find no abuse of discretion on the part of the trial judge in allowing the testimony into evidence.

The credibility of the officer giving this testimony and the weight to be given it is within the province of the trier of fact.

Affirmed.

McGregor, J., concurred with Lesinski, O. J.

1 Rice v. Jackson (1965), 1 Mich App 105; White v. City of Marquette (1905), 140 Mich 310; Guthrie v. United States (1953), 92 App DC 361 (207 F2d 19). See, also, 4 ALR3d 149, §§ 6-12.

2 See Stone v. Sinclaw Refining Co. (1923), 225 Mich 344.