Haley v. State

138 S.W. 631, 99 Ark. 356, 1911 Ark. LEXIS 261

Opinion

Wood; J.

The appellant was convicted of the crime of rape. The court permitted evidence of the dying declarations of the victim of the alleged assault to go to the jury. The Attorney General confesses that the trial court erred in its ruling. This presents the only question for our consideration. The confession of error must be sustained. “Dying declarations,” says the Supreme Court of Alabama, “according to the unbroken current of modern authorities, are admissible only in cases of homi-cide, when death, with the circumstances attendant on it, and the guilty agent in producing it, is the subject of inquiry.” Johnson v. State, 50 Ala. 459; Greenleaf on Ev. (15 ed.), § 156; Wigmore on Ev. (3 ed., Bowlby), § 1432. We have no statute making the dying declarations of a victim of rape admissible as evidence. In the absence of such statute, it was error to admit them in the case at bar. It is not shown that the declarations were of the res gestae. The judgment is therefore reversed, and the cause is remanded for a new trial.