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Detroit News, March 25, 1931.

Opinion from the case upon appeal

Wright v. State, 135 So. 636 (Ala.App. 1931).

SAMFORD, J.

The one question or merit presented by this record is as to the admission in evidence of the dying declaration of deceased.

The usual predicate as to a consciousness of impending death was laid and the subject-matter of the statement was admissible. Humber v. State, 21 Ala. App. 378, 108 So. 646.

The defendant, however, by proper questions propounded on cross-examination and by a motion to exclude the dying declaration, after it had been proven by undisputed testimony that 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, raises the question of the competency of the deceased to make such dying declarations as will be admissible in evidence.

While dying declarations are admissible in evidence as an exception to the general rule against hearsay evidence, they should only be admitted and weighed with great care. They are wanting in those safeguards usually attending the oral examination of witnesses, such as cross-examinations, manner and temper of the witness, and are usually brought into court through the testimony of those who have watched by the bedside of a dying friend or relative and who naturally are biased as against the slayer. Shell v. State, 88 Ala. 17, 7 So. 40. It is not, therefore, the testimony of a witness under oath, but the recital of a statement made under the solemn force of impending death by and through which, according to the belief of nearly, if not quite all of the people of the world, the immortal part of man is separated from the mortal and the immortal goes to stand face to face with a Judge whose decrees are based upon full knowledge and perfect justice. A belief in God-a Supreme Being, a Just and an All Wise Judge-whose decrees are final and eternal and who rewards the truth and punishes the untrue, would render a dying statement of much value as evidence, but coming from one whose mind is filled with resentment against a recent adversary and who believes that the grave ends it all and that when he sleeps it will be with the rock and the clod, there is nothing to take the place of an oath and personal examination, with the legal tests usual in such cases. Such dying statement with proper predicate stands in the same category as the testimony of a living witness on the stand and may be impeached in the same manner and for the same causes. Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A. L. R. 560.

The question then presented is: Is a witness competent to testify who does not believe in an Omniscient Supreme Being as the rewarder of truth and the avenger of falsehood? By the common law no particular form of religious belief was insisted on as the test of competency, but it was required that there should be a belief in an Omniscient Supreme Being exercising the power to reward truth and punish falsehood. 5 Jones on Ev. (2d Ed.) §§ 2089-2091. While this rule has been abrogated in many states, by statutes and decisions, the common-law rule still obtains in Alabama. Code 1923, § 14. The rule of the common law is stated by Lord Chief Justice Willis in Omychund v. Barker, 1 Atk. 21, and quoted with approval by Mr. Justice Foster in Marshall v. State, 219 Ala. 83, 121 So. 72-75, 63 A. L. R. 560. With the pronouncement in the Marshall Case, supra, this court is in accord, holding as it does that those persons are competent to testify who believe in a Supreme Being controlling rewards and punishments. We are, therefore, not in conflict with that decision when we hold that, an Atheist, defined by Webster's Dictionary as: “(1) One who disbelieves or denies the existence of a God or Supreme intelligent Being. (2) A Godless person. One who lives as if there was no God,” is not a competent witness in any court of this state, where an oath is required.

The foregoing is not in conflict with section 3 of the Constitution of 1901, which provides: “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 any citizen shall not be in any manner affected by his religious principles.” The whole fabric of this nation from its inception to the present time is founded on a belief in a Supreme Being whose guiding hand is recognized and invoked in our most solemn governmental pronouncements. Beginning with our Declaration of Independence, which is the foundation of our liberties, the framers evidenced this belief in the following phrases: “The separate and equal station to which the laws of nature and of nature's God entitle them;” and “that all men are created equal; that they are endowed by their Creator with certain unalienable rights,” and ending this remarkable document with a full faith in God as follows: “And, for the support of this declaration, with a firm reliance on the protection of Divine Providence.” Coming to our own state, every Constitution ever adopted by the people of Alabama was framed and adopted with a full recognition of the powers of a Supreme Being with powers to control and direct the destinies of men. This recognition is given voice in the Preamble to the Constitution of 1901 in the following language: “Invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution.” Every statute ever passed by the Legislature of this state relating to the introduction of evidence in courts of justice has been enacted in full recognition of a faith in a Supreme Being and 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. Without a belief in a Supreme Being there can be no legal oath; without a legal oath a witness is not competent to testify in our courts.

The rulings of the trial court were not in accord with the above, and for the errors pointed out the judgment is reversed and the cause is remanded.

Reversed and remanded.

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