¶1 (concurring in»the result).
¶2 Very early in the consideration of this case, I expressed in writing my opinion that the judgment should be affirmed, giving my reasons therefor. Since the opinion of Mr. Justice MOFFAT contains the decision of a majority of this court, but sets out reasons for arriving at any opposite decision, I shall annex my opinion in the hope that from all opinions filed by a majority affirming the decision, the reader may be able to discover not only the decision in the case, but the principles of law and reasoning supporting it.
¶3*372 I agree that the lower court committed no error when it excluded the purported statement of Maloney to Zacker-son to the effect that the car which struck the boys was a refrigerator truck. It should be noted that Maloney was on the stand and could have been cross-examined on this matter and if he denied saying it, impeached by Zackerson. But defendant sought to introduce his statement as part of his affirmative testimony showing some other car than that which he was driving hit the two boys. If it was res gestae, he could do this, because this exception to the hearsay rules does not require the death or unavailability of the utterer of the statement as a condition precedent to introducing it. Wigmore on Evid. (2d Ed.) § 1748, p. 741. What is and what is not res gestae is at times an extremely difficult question to determine, not only because it is difficult to determine whether the element of spontaneity is present, but because the law itself has been very much misunderstood and confused. Even the name is unfortunate because it connotes no distinctive meaning. It has further been confused with the conception of a verbal act which is necessary and competent because simply part and parcel of a whole transaction. As Wigmore points out in his treatment of this subject in sections 1745 to 1759 (Wigmore on Evid. [2d Ed.]), the so-called res gestae is in fact simply another exception to the hearsay rule, based on the fact that there are assurances sufficient to make it reliable even though there is no opportunity to cross-examine. But that assurance based on the spontaneity «necessary to make it the automatic result of the excitation engendered by the occasion and to eliminate any probability that it was the product of reflection or rationalization must be present. And it is in this regard that the trial judge’s judgment will prevail where it is within the range of permissible conclusion from the evidence even though other judges might also permissibly come to a different conclusion. For that reason, I do not see that we should overturn the conclusion of the lower court that in the case of the purported statement of Maloney *373 the element of assurance above spoken of was not sufficiently clear, even though the record in this case probably apprises us as fully as the words from the witnesses in the trial did the judge therein as to the element of automatic utterance. There seems practically no element of credibility of witness involved as to this matter.
¶4 It should be noted that since the sole basis for admitting statements of this kind depends on what we have chosen to call their “automatic” nature, the court should be fairly well convinced that such basis exists; otherwise, statements of witnesses in regard to which there may be no opportunity to cross-examine will be admitted to the great prejudice of the opposite party. The subject began in obscurity and even today continues to produce cases where it has apparently not been understood. Professor Thayer in the American Law Review, Vol. XV, No. 5, p. 81, states:
“If it be true, as it seems to be, that the phrase first came into use in Evidence near the end of the last century, one would like to know what started the use of it just then. That is matter for conjecture rather than opinion. It would seem probable that it was called into use mainly on account of its ‘convenient obscurity.’ … The law of hearsay at that time was Quite unsettled; lawyers and judges seem to have caught at the term ‘res gesta,’— … which was a foreign term, a little vague in its application, and yet in some applications of it precise, — they seem to have caught at this expression as one that gave them relief at a pinch. They could not, in the stress of business, stop to analyze minutely; this valuable phrase did for them what the limbo of the theologians did for them, what a ‘catch-all’ does for a busy housekeeper or an untidy one,— some things belong there, other things might for purposes of present convenience be put there. We have seen that the singular form of phrase soon began to give place to the plural; this made it considerably more convenient whatever multiplied its ambiguity, multiplied its capacity; it was a larger ‘catch-all.’ To be sure, this was a dangerous way of finding relief, and the judges, textwriters, and students have found themselves sadly embarassed by the growing and intolerable vagueness of the expression.” See Wigmore on Evid. (2d Ed.) p. 775.
¶5*374 There seems to be no question today, however, but that the statements may be made by one not an actor in the occurrence and that the fact that it is in answer to a question does not necessarily prevent it from being uttered under excitation and thus the occurrence speak through the utterer as a medium. But the fact that it was in answer to a question is to be considered in determining whether it was without reflection or whether it was the result of a process of reconstruction, by narrative, however excited the narrator may be, the circumstances of the accident. In regard to the doctrine of so-called res gestae, attention is called to the valuable treatment contained in Wigmore on Evidence (2d Ed.) ■§§ 1745 to 1792, and to Jones’ Comm, on Evidence, Vol. 3 (2d Ed.) c. 12.
¶6 In regard to the court’s failure to give the defendant’s requested instruction No. 3, I do not think it was error. Admitting for the occasion that the jurors must all agree on one or more specifications of what constituted the unlawful driving and that the jurors cannot combine their conclusions on the different specifications of unlawfulness fulness so as to converge- into the final conclusion of unlawful driving likely to cause death, I think, nevertheless, that the court’s instruction was sufficient to cover this matter. The court told the jury that it must find that “one or more of the acts complained of was or were done or omitted to be done,” etc. The evidence in this case, for a hit-and-run accident, is unusually convincing. The driver of -the car that defendant cut-in on, going away over on the dirt in so doing, followed the defendant’s car after it passed him. He noticed the driver of the car which cut-in on ln'm wore a white cap. Defendant wore a white cap. No other car passed him except defendant’s car before he reached the parked car. After he passed the parked car 15 or 20' feet, he saw one of the bodies lying on the shoulder of the road. He concluded defendant’s car had hit that body. After hesitating for a moment, he saw that help was coming and pursued the defendant’s car until he lost it. He was about *375 200 feet from the parked car when the defendant’s car cut-in on him, and up to the time he saw the first body, he kept within from 150 to 250> feet of the defendant’s car. And from the amount of dust raised, it has the appearance that defendant after his right wheels struck the shoulder of the road upon his cut-in, continued along that dirt portion for a space before he came out fully again on the pavement. The fact that he was compelled to make such a sharp cut-in and swerve so far over to the right to avoid an on-coming car, gives some indication of how he was driving. Add to that the fact that he had been drinking — and we might expect he would minimize it — and what practically amounted to a confession that he knew he had hit some one, and there appears to be a rather clear case. What may be prejudicial on a close case may not be in a case where the evidence is fairly clear. If we take a case where there is a mountain of evidence for one side and a molehill of evidence for the other side, an instruction, which in a close case would likely puzzle the jury or influence them in such case, may not be prejudicial, because, regardless of instructions, it would be very unlikely that they would decide in favor of the molehill.
¶7 Prejudice cannot be judged purely intrinsically on the claimed error, but in view of the whole case. We can hardly consider the jurors as if they were a body of highly trained lawyers, wool combing the evidence and instructions for highly technical points upon which to determine their decision. It seems to me that the ordinary jury would conceive that the instruction given by the court would require them to come to unanimity on one or more of the specifications. And we must presume they followed it and did so. All of the jurors undoubtedly concluded that the defendant drove without due circumspection and caution having due regard to the traffic. It appears to me that several of the other specifications enumerated in the information are merely other ways of saying this or more specific ways of describing the nature of the lack of due caution. Certainly, the specification that he failed to keep his automobile under *376 control and that he drove it at an unlawful rate of speed under all the circumstances, and the specification that he drove while under the influence of intoxicating liquor, simply state reasons for his driving without due caution and circumspection. It is the “why” of his doing so. We have said that the liquor must affect his control. We have said merely drinking liquor is not enough. It must be shown that his driving was influenced by the effects of the liquor differently than it would have been under his normal faculties and impulses. Therefore, it simply amounts to saying he failed to drive with the due caution and circumspection because the liquor influenced him to drive that way.
¶8 I am wondering how far the jury is required to go in agreement on the subsidiary facts. It must have concluded that he drove without due care and circumspection and it therefore concluded that such driving caused the death of the deceased;. Must it also have come to unanimity on all of the specifications which it is alleged the lack of due caution consisted of? If one of these specifications could again be broken down into more refined and different causes, must it also have come to unanimity as to one or more of those causes? For instance, if it is alleged that a defendant drove without having his car under control because he was “spooning” with a girl and because under the influence of liquor, must there be unanimity on the causes bringing about said alleged lack of control?. And, if so, it may well be argued that they all must agree that a combination of the two elements caused the failure to keep proper control, because the conjunctive was used. How far up the trunk and branches of the evidence tree must this unanimity extend?
¶9 But at all events, if there must be unanimity of agreement on one or more of the specifications named in the information, I think the instruction was sufficient to call that to the attention of the jury. I see no need of adding to the difficulties of the prosecutor and the trial court. I think in the last twenty-five years we have been over-strict *377 in many of our interpretations of the criminal law and procedure. It has resulted in putting the criminal procedure in a legal straight jacket.
¶10 For the reasons expressed in this opinion, I think the judgment should be affirmed.