West Virginia Law Review

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In a comparatively recent case in which counsel contended that certain extrajudicial assertions were inadmissible on the ground that they were not "a part of the res gestae," Judge Learned Hand dismissed the argument with the observation that res gestae "is a phrase which has been accountable for so much confusion that it had best be denied any place whatever in legal terminology." In somewhat similar vein the supreme court of California has said that "Definitions of res gestae are as numerous as prescriptions for the cure of rheumatism and generally about as useful." The appropriateness of these trenchant observations is strikingly attested by many West Virginia cases in which slightly differing definitions or conceptions were adopted and decidedly differing conclusions were reached. Indeed, a consecutive reading of the numerous decisions in point suggests that the reader is witnessing a melee of conflicting theories which are, so to speak, engaged in a struggle for the survival of the fittest. Realizing the dangers inherent in the so-called res gestae doctrine, the West Virginia Supreme Court of Appeals has, on at least one occasion, undertaken the task of stripping the concept of the beveiling verbiage which has shrouded it for more than a century, and restating it as a reasonably definite principle with a sound psychological rationale by which to determine its scope and applicability. Unfortunately, however, the court retained the old "res gestae" label for the revamped principle, with the result that retention of the old name has at times been regarded as a retention of the old rationale and, consequently, of some if not all of the old dangers: few tyrannies are more tenacious and vicious than the tyranny of words. Accordingly it is herein proposed to discuss the more important of the modern West Virginia decisions in point, in an effort to fit the cases into an acceptable theory and, to such extent as this may not seem practicable, to attempt some clarifying comment on recalcitrant decisions.

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