Wright v. State , 24 Ala. App. 378 ( 1931 )

Section 7655 of the Code of Alabama of 1923 is in the following language: "Oath or Affirmation. — The sanction of an oath, or affirmation equivalent thereto, is necessary to the reception of any oral testimony. The court may frame such affirmation according to the religious faith of the witness." (Italics supplied by us.)

And this court has said (Pilcher v. State, 16 Ala. App. 237,77 So. 75, 76), with the approval of the Supreme Court (Ex parte State [Pilcher v. State], 201 Ala. 697, 77 So. 1001): "The ordinary rules that are invoked for the determination of the admissibility of evidence generally or of the competency of the witness testifying, are applicable to the admissibility of dying declarations and to the competency of the declarant at the time he made the declarations."

Webster's New International Dictionary gives as definitions of the word "affirmation," pertinently, these which we accept: "3. That which is asserted; an assertion; a positive statement; an averment; as, an affirmation by the vendor of title to property sold, or of its quality." And "4. Law. A solemn declaration made under the penalties of perjury, by a person who conscientiously declines taking an oath. This is in law equivalent to an oath."

An "oath," such as is mentioned in Code 1923, § 7655, cannot be made by one who does not believe in God, or, speaking very reverently some legal equivalent. Webster's New International Dictionary; Words and Phrases (1904) First Series, vol. 5, p. 4871. But we find, and know of, no such restriction upon the making of an "affirmation," which may be substituted for an "oath." Code 1923, § 7655, supra.

And, if one may testify, orally, in open court, without first taking an "oath" — when he objects to taking same — by substituting an "affirmation," which is no more than a "positive statement," under the penalties of perjury, and "the ordinary rules that are invoked for the determination of the admissibility of evidence generally, or of the competency of the witness testifying, are applicable to the admissibility of dying declarations, and to the competency of the declarant at the time he made the declarations," I do not conceive that it is the intention of our laws to, as would be the case here, deprive the state of the only available testimony tending to show the crime alleged to have been committed — the dying declaration of the deceased — because the defendant was allowed to testify, without objection, and without being disputed, that the deceased "did not believe in God; did not believe in a Supreme Being; did not believe there was a place to reward the faithful or punish the wicked."

I pretermit any discussion of the propriety, vel non, of allowing the witness to give such testimony, as for it being but her opinion, unauthorized, or conclusion, because, forsooth, such testimony was, here, not objected to, and, anyway, as I see it, the testimony did not render the dying declaration inadmissible in evidence.

I do not subscribe to the view that "there is no place in our whole governmental structure for a belief which ties men to the rocks and clods and places him on a level with the beasts of the field," asserted by my brother SAMFORD.

It is, rather, my opinion that ours is "the land of the free, and the home of the brave"; and that though to say "there is no God," both in Scripture and in common knowledge, proves one a fool, and may, for all I know, tie him "to the rocks and clods," yet it does not, and should not, deprive that one of his heritage as a citizen, nor of his standing as one of the "free" and one of the "brave." Such would be the effect of the holding announced in the opinion heretofore handed down in this case.

Indeed, the said holding seems to me to be squarely in defiance of that provision of section 3 of the Constitution of Alabama of 1901, quoted in the opinion by Judge SAMFORD, to wit: "That no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of anycitizen shall not be in any manner affected by his religiousprinciples." (Italics supplied by us.)

It is entirely superfluous for me to say that I, too, am "in accord" with the "pronouncement in the Marshall Case" (Marshall v. State, 219 Ala. 83, 121 So. 72, 75, 63 A.L.R. 560, alluded to by my brother SAMFORD. Not only do I have no disposition to question its soundness, but we are bound by it. Code 1923, § 7318.

But as I read the opinion in that case, it is not an authority for the "pronouncement" by this court in the opinion heretofore promulgated.

True enough, as pointed out by Mr. Justice Foster, in the opinion in that case, "by the common law * * * as the test of competency [of a witness to testify, or of the admissibility in evidence of his dying declaration] * * * there should be a belief [by the witness or declarant] in an omniscient Supreme Being as the rewarder of truth and the avenger of falsehood." But the said learned justice is careful to state, in that regard, that "our Constitution, § 3 [quoted hereinabove, we interpolate], does not seem to have been considered in connection with this principle, and we find that the state of the record in this case does not require a decision of its effect on the common-law rule."

For my part, I am forced to declare that it is my opinion that the said section 3 of the Constitution of 1901 completely abrogates the common-law rule referred to; and that, to give effect to the quoted and italicized portions, hereinabove, of the said section 3, we ought to hold that, under the other prerequisite circumstances, pointed out in the opinion by Judge SAMFORD, it was not error to admit testimony as to the dying declaration involved in this case.

At the risk of being tedious, I would like to add that a similar view is entertained by the Court of Appeals of Kentucky, as indicated in the decision and opinion in the case of Bush v. Commonwealth, 80 Ky. 244. In that case that court, speaking directly in answer to this question, "Does the want of religious belief incapacitate a witness, and can that belief be inquired into in any way?" made the following utterances, to wit:

"It is admitted that the modern common law requires, as a condition precedent to the admission of the testimony of a witness, that he believe in a supreme being who will punish, either here or hereafter, one who swears falsely. * * * The unquestioned tendency of modern legislation, as well as of judicial interpretation, is to the exclusion of inquiry into religious belief as a test of the competency of a witness * * * in the administration of the criminal and the penal law, the rules of evidence recognized at common law are still in force, unless changed or abrogated by the organic law as expressed in the constitution.

"Upon the point under consideration, we are of the opinion that the constitution changes the common law rule, and makes competent as witnesses all persons so far as any religious test is concerned. * * *

"The sixth section is as follows: 'That the civil rights, privileges, or capacities of any citizen shall in nowise be diminished or enlarged on account of his religion.'

"The obvious meaning of this is, that whatever civil rights, civil privileges, or civil capacities belong to or are enjoyed by the citizens generally, shall not be taken from or denied to any citizen on account of his opinions in regard to religious matters. It is a declaration of an absolute equality, which is violated when one class of citizens is held to have the civil capacity to testify in a court of justice because they entertain a certain opinion in regard to religion, while another class is denied to possess that capacity because they do not conform to the prescribed belief. Free governments deal with the acts of the citizen and not with his thoughts. To proscribe or punish for religious or political opinions is of the essence of despotism. To apply the rule insisted upon would be to make a religious test, which is contrary as well to the letter as to the spirit of the constitution. If the test can be applied in this case, it may be applied in any, for, independent of this provision of the constitution, there is nothing to prevent the legislature from passing any law they think proper prescribing particular denominational standards of belief as a test of competency to give evidence. In that case, any Christian denomination being in the ascendency in the legislature might pass a law depriving all other Christian denominations of the capacity to testify as witnesses; and, on the other hand, if it should ever happen that Atheist or Deist were in a like ascendency in the legislature, there would be nothing to prevent them from proscribing all Christians in the same way. And further, the enforcement of the rule contended for might present, as suggested by Judge Scott in Perry's Case, 3 Grat. [44 Va.] 632, a case in which one believing in the prescribed formula would be sentenced to death by an Atheist circuit judge, the sentence and judgment affirmed by an Atheist appellate court, and denied pardon by an Atheist governor; for in no case are any of the officers required to conform to any belief as a condition precedent to the holding of an office and to the exercise of its functions. If such a case should occur in which a Christian man should suffer death, though innocent, because an Atheist was denied the capacity to testify in his behalf, every citizen would denounce such a rule thus applied as absurdly unjust, oppressive, and in violation of the spirit of our institutions. * * * The opinion in the Perry Case, above referred to, reaches, in construing a similar provision in the Virginia constitution, the conclusion at which we have arrived. We think that this provision of the constitution not only permits persons to testify without regard to religious belief or disbelief, but that it was intended to prevent any inquiry into that belief for the purpose of affecting credibility. It places the Atheist, in this regard, on the same footing as any other witness, and leaves the question as to credibility to be inquired into in the same way."

I do not care to go so far, here, as to say that I agree with the Court of Appeals of Kentucky, in the above, in saying that "it [the constitutional provision referred to, — which was in its effect the same as section 3 of our Constitution of 1901] was intended to prevent any inquiry into that belief [religious belief — I interpolate] for the purpose of affecting credibility." Though they may be right about that.

But so far as concerns the question with which our opinion deals, I do think the reasoning, and the holding in Bush v. Commonwealth, supra, logical and sound, and I adopt the language therein used, in that regard, as expressing my views.

The Supreme Court of Illinois, it seems, has a similar view, as indicated by the seventh headnote (fairly expressive, I think, of the holding in the opinion) to the report of the case of Hronek v. People in 24 N.E. 861, 862 (134 Ill. 139, 8 L.R.A. 837, 23 Am. St. Rep. 652), which headnote I quote, to wit: "Under Const. Ill. art. 2, § 3, which provides that 'no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions, but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations,' the absence of belief in his accountability to the Deity does not disqualify a citizen from testifying in a court of justice."

So I merely repeat, the common-law rule which would have rendered incompetent the dying declaration admitted in evidence in this case has been abrogated by the provisions hereinabove quoted, of section 3 of our Constitution of 1901, and, in the light of said section 3, and of Code of 1923, § 7655, it is my opinion that the state's application for rehearing should be granted, the order of reversal set aside, and the judgment of conviction affirmed.