                                   No. 12274

       I N THE SUPREME COURT O THE STATE OF MONTANA
                              F

                                      1973



STATE O MONTANA,
       F

                           P l a i n t i f f and Respondent,



G. M. NEWMAN, a / k / a
JACK NEWMAN,

                          Defendant and A p p e l l a n t .



Appeal from:      D i s t r i c t Court o f the E i g h t e e n t h J u d i c i a l D i s t r i c t ,
                  Honorabl e W. W . Less l e y , Judge p r e s i d i n g .

Counsel o f Record :

    For Appellant:

          Morrow, , Nash and S e d i v y , Bozeman, Montana.
          James H. Morrow, J r . and Edmund P. S e d i v y , Jr. a r g u e d ,
           Dozeman, Montana.
          S e t h F , B o h a r t , Bozeman, Montana.

    F o r Respondent :

          Hon. R o b e r t L. Woodahl , A t t o r n e y G e n e r a l , Helena,
            Montana,
          J o n a t h a n B. Smith, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
            Helena, Montana.
          Thomas A . Olson, County A t t o r n e y , a r g u e d , Bozeman,
            Montana.



                                                        Submitted:         A p r i l 26, 1973

                                                           Decided : m 5
                                                                      2              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 man-
slaughter 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 busi-
ness 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 contact-
ing 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 un-
cooperative 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. New-
man 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 testi-
fied 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 testi-
fied 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 noti-
fied 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 an-
other ambulance driver took Mrs. Newman in an ambulance and de-
parted for Billings.    At about 6:00 a.m., when the ambulance was
near Livingston, Donin noticed that Mrs. Newman was having res-
piratory 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 sub-
dural 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 subarach-
noid 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 defend-
ant's offered instruction number 3.
         (6) Submitting court's instruction number 14, conment-
ing 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 num-
ber 16 on the subject of excusable homicide.
         (9) Failing to direct a verdict for the defendant.
        (10) Failing to submit the defendant's offered instruc-
tion 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 re-
garding 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-of-
court asserter.
        We find no difficulty in determining that Mrs. Newman's
out-of-court statements as repeated by her two friends are hear-
say.   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 m e n o t excited utterances, for they were made a period
of twelve to thirteen hours after the alleged beating.      Mrs. New-
man'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 con-
temporaneous with the injury causing event (unless made to a doc-
tor 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   gestae are the circumstances, facts and
               wReS
        declarations which grow out of the main fact,
        are contemporaneous with it, and serve to illus-
        trate its character." State v. Broadwater,
        75 Mont. 350, 243 P. 587, 589. Declarations
        made while the mind of the speaker is labor-
        inq under the excitement aroused by the acci-
        dent, 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. Man-
        slaughter 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 differen-
tiating voluntary from involuntary manslaughter.   State v. Souh-
rada, 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 ex-
change took place outside the presence of the jury;
         "THE COURT: Let me ask you: why are you introduc-
         ing 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 Defend-
         ant. 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 de-
fendant 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 refer-
ence 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 man-
slaughter.   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 de-
 fendant'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 evi-
           dence and assisting the court and jury in under-
           standing the case.'
           "Photographs that are calculated to arouse the
           sympathies or prejudices of the jury are properly
           excluded, particularly if they are not substan-
           tially necessary or instructive to show material
           facts or conditions. 20 Am.Jur., Evidence, sec-
           tion 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 determina-
tive 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 be-
cause 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 M r . Newman regarding the previous condi-
tion 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 instruc-
tions 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 - was the proximate
                                           or
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, im-
          mediate 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 inflict-
          ed 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
