Clark v. State

211 N.W. 16, 114 Neb. 818, 49 A.L.R. 1280, 1926 Neb. LEXIS 111

• Court: Nebraska Supreme Court
• Decided: November 19, 1926
• Docket: No. 25118
• Status: Published

Opinions

Morrissey, C. J.

Defendant was convicted in the district court for Red Willow county upon an information which charged him with having committed the crime of sodomy, on May 1, 1924, upon the person of a young man named Ted Pate.

At the time the offense is alleged to have been committed, defendant was engaged in the mercantile business in the city of McCook. His home was in an apartment house, and this apartment was frequented by several boys and young men of the city.

It is shown by witnesses for the state that defendant and Ted Pate had long been intimate friends; that Pate was an employee of defendant and frequently slept in defendant’s apartment. In the early summer of 1924, defendant, Pate, and another young man made an extended automobile trip together. For some time prior Pate had been in failing health. While making the excursion his condition became such that they turned back, and, upon reaching McCook, Pate submitted himself to the care of a physician. The physician found his patient suffering from syphilis in an advanced and virulent form. From this disease Pate soon thereafter died.

The mother of Pate was called as a witness for the state and, over objection by defendant, was permitted to testify that, shortly before the death of her son, he told her that his syphiletic condition was due to unnatural intercourse which defendant had had with him.

Upon the facts thus briefly summarized, the case was submitted to a jury, which returned a verdict of guilty and defendant was sentenced to serve a term In the state penitentiary.

The first assignment of error deals with the admission of the testimony of Pate’s mother in which she told of the statement made to her by her son shortly before he died. It is claimed that this testimony does not fall within the exceptions to the hearsay rule and was, therefore, not admissible.

At the early common law, dying declarations were admissible in all cases, civil or criminal. Later a. distinction was evolved and such declarations were received only in homicide cases. This has been the general rule in this country for more than a hundred years. It has been so long recognized as a rule of evidence that a court may well pause before overthrowing it. There is an extensive discussion and a masterful criticism of this rule in 3 Wigmore, Evidence (2d ed.) sec. 1436. The learned author indicts it as a heresy, but concludes the discussion by saying that it should be wholly abolished by legislation. The rule has been so generally accepted and its overthrow might lead to such confusion that we are constrained to adhere to it, and leave the law-making body to determine whether or not it shall be revoked.

Dying declarations are admissible only in cases of homicide, and then only where the death of declarant is the subject of the charge. 1 Greenleaf, Evidence (16th ed.) sec. 156a; People v. Stison, 140 Mich. 216; 22 C. J. 258, seci 259.

It was error for the court to permit the testimony to be submitted to the jury. The judgment of the trial court is set aside and the cause remanded.

Reversed.