In Re Winineger's Petition

NIX, Judge-

(dissenting).

The question as to the admissibility of deathbed confession and a dying declaration has through the ages of jurisprudence been a highly controversial subject. The majority opinion is not without generous authority as is indicated by the numerous citations listed by Judge Brett in his opinion. However, the rule therein adopted is likewise the target of many decisions and texts’ authorities who have consistently assailed the rule since its inception.

The highly evident discord of the authorities on this subject is reflected in the instant case, resulting in three decisions being handed down by the court in an effort to reach an equitable analysis of the diversified decisions of other jurisdictions. The first decision denied the writ of coram nobis and recalled for oral argument. The second- decision granted the writ. Upon rehearing at the request of the state, the writ was denied. The second decision granting the writ relied upon the opinion of Justice Holmes which was a strong dissent concurred in by Justice Lurton and Hughes in the case of Donnelly v. United States, 228 U.S. 243, 248, 33 S.Ct. 449, 57 L.Ed. 820.

On the second petition for rehearing the writ was denied upon the rule adopted in Newton v. State, 61 Okl.Cr. 237, 71 P.2d 122, 126. The Newton case adopted the rule in substance. That on trial of a criminal case, evidence of the admission or confession of a stranger that he perpetrated the offense is not admissible as substantial evidence tending to exculpate the accused. It also recognizes an exception to the general rule as follows:

“ ‘One of the exceptions to the rule excluding it is that which permits the reception, under certain circumstances and for limited purposes, of declaration of third parties, made contrary to their own interest; but it is almost universally held that this must be on interest of a pecuniary character; and the fact that the declaration, alleged to have been thus extrajudicially made would probably subject the declarant to a criminal liability, is held not to be sufficient to constitute it an exception to the rule against hearsay evidence.’ ”

Discussing this matter Justice Hughes in his opinion, supra, said [228 U.S. 243, 33 S.Ct. 461]:

“The confession of Joe Dick, since deceased, that he committed the murder for which the plaintiff in error was tried, coupled with circumstances pointing to its truth, would have a very strong tendency to make anyone outside of a court of justice believe that Donnelly did not commit the crime. I say this, of course, on the supposition that it should be proved that the confession really was made, and that there was no ground for connecting Donnelly with Dick. The rules of evidence in the main are based on experience, logic, and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man. (Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917); and when we surround the accused with so many safeguards, some of which seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight.”

Your writer has great deference for the logic so well expressed in the opinion of Justice Holmes. The cultured reasoning invoked by Justice Holmes permits the rules of evidence to get at the truth even to the extent of unsealing the tomb. It is shocking to the sense of justice and it would be well to know upon what civilized justification could our judicial officers base a rule of evidence which would forbid an accused from exonerating himself by rendering inadmissible a confession of the actual culprit because death had ensued thereafter. Professor Wigmore, who recognized the fallacy of the general rule and severely criticizes the same had this to say in his treatise on evidence:

“It is plain enough that this limitation, besides being a fairly modern novelty of judicial invention, is inconsistent with the broad language originally employed in stating the reason and principle of the present exception as well as with the settled principle upon which confessions are received.”

“The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well .authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent.”

He further says:

“It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice. Those who watched (in 1899) with self righteous indignation the course of proceedings in Captain Dreyfus’ trial should remember that if that trial had occurred in our own Courts, the spectacle would have been no less shameful if we, following our own supposed precedents, had refused to admit what the French court never for a moment hesitated to admit — the authenticated confession of the absconded Major Esterhazy, avowing himself the guilty author of the treason there charged, and now known beyond a doubt to have been the real traitor.”

Your writer particularly disagrees with Syllabus No. 4 of the majority opinion as to the exception to the rule being confined to statements against pecuniary interest. I cannot feel that the exception to the rule would lend significance to statements against pecuniary interest and exclude statements against penal interest. How could it be said that one involved in crime could possibly attach more importance to his monetary assets than he would to his liberty or pursuit of happiness. No doubt the hearsay rule as founded upon the desire to prevent perjury with impunity, it follows that the limitation which so circumscribes the exception to the general rule which admits declaration against interest, as to exclude all admissions which are against ‘penal’ interest, is tantamount to a declaration that, while a man who makes an'admission against his pecuniary or pro-prietory interest will be presumed to tell the truth, yet he is presumed to be a liar when his statement is against his penal interest. It is going far afield to say that, whereas mankind holds property on such high regard that a statement to the detriment of his title and interest therein will be taken as true and a statement which could forever deprive him of his liberty is false, that would be to say that the average individual thinks so little of liberty, life and soul that he would slander and falsely condemn this precious heritage for the purpose of exonerating another who by the same token has no greater solicitude for his own liberty, life or soul and this is especially unjustifiable in the light of common knowledge that the individual, instead of' having a higher regard for property than for life and liberty, will, when accused of crime, exhaust his entire material wealth to secure liberty, life and vindication. See 37 L.R.A.,N.S., 351 for annotation and discussion.

The practicality of such a rule in a civil case could be readily understood because money or property would be the subject of the suit. But the application of such a rule in a criminal case would by no degree of equitable reasoning point toward justice. In a criminal case the yardstick with which a statement against interest should be measured must be as to the detriment cast upon liberty, life, and unrestricted freedom to which one would otherwise be entitled. (See Wigmore on Evidence, Vol. II, § 1476 for a history of pecuniary rule originating as to permit in evidence records of those charged with receipt of money.)

The rule in the majority opinion as to pecuniary interest controversial nature that it should not be encouraged or expanded and your writer did not want it to become the law in Oklahoma. I feel the rule to be unjust, impractical, barbarous, and inapplicable in criminal cases. However, by virtue of the majority opinion, it is now the law in our state.