Black, Donald F.

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Volume 38 Issue 2 Article 11 February 1932 Evidence--Admissibility of an Atheist's Dying Declaration Donald F. Black West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Evidence Commons Recommended Citation Donald F. Black, Evidence--Admissibility of an Atheist's Dying Declaration, 38 W. Va. L. Rev. (1932). Available at: https://researchrepository.wvu.edu/wvlr/vol38/iss2/11 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. RECENT CASE COMMENTSstronger than the presumption that they were guided by a dic-tionary.'The court's method of interpretation might be justified, froma practical standpoint, if its result were sufficiently desirable.However, it does not seem that large repair shops used onlysecondarily for storage, should be granted exemptions, and licensetax levies made on small storage buildings, rented indiscriminatelyto the public. It appears that such would be the result of the"dictionary-minded" distinction drawn by the West Virginiacourt.-- JAcK C. BURDETT.EVIDENCE - ADMISSIBILITY OF AN ATEoEmT's DYING DECAIARA-TION. - In a murder prosecution, a question arose as to the ad-missibility of the dying declaration of an atheist. The dyingdeclarant did not believe in any Supreme Being, or in any futureexistence beyond death. He did not possess a belief in any formof divine punishment or reward. The court relying on a statuteabolishing the requirement that a witness must testify under oath,held the declaration admissible. Wtight v. Stae.1The common law admitted dying declarations, within certainlimits, as an exception to the hearsay rule. It required that thedying declarant possess a belief in God, in addition to a beliefthat he was to die very soon. The courts felt that the gravity ofdeath under such circumstances was equal to the solemnity of anoath in court as a guaranty of trustworthiness.In the principal case the court recognized the common lawrule, but held that it was abrogated by the statute making anatheist competent to testify.It is clear that the statute cited by the court removed thebar of atheism from the declarant's testimony and made him fullycompetent to be a witness. There still remains, however, the prob-lem of determining whether the dying declaration is sufficientlyC. Va. 1917); Wilkinson v. Mutual Saving Ass'n., 13 F. (2d) 997 (C. C. A.7th 1926); Balanced, etc., Attractions v. Town of Manitou, 38 F. (2d) 28(C. C. A. 10th 1930); Perrin v. Miller, 35 Cal. App. 129, 69 Pac. 426 (1917);People v. Muldoon, 306 Ill. 234, 137 N. E. 863 (1922); Bohannon v. Cityof Louisville, 193 Ky. 276, 235 S. W. 750 (1921); West v. Lysle, 302 Pa.147, 153 AtL 131 (1931); Scott v. Doughty, 124 Va. 358, 97 S. E. 802 (1919);Brown v. Robinson, 175 N. E. 269 (Mass. 1931).2People v. Elliff, 74 Colo. 81, 219 Pac. 224 (1923).1135 So. 636 (Ala. 1931).1Black: Evidence--Admissibility of an Atheist's Dying DeclarationPublished by The Research Repository @ WVU, 1932WEST VIRGINIA LAW QUARTERLYtrustworthy to warrant its being admitted. The ease illustratesthe modern trend.' There is a feeling that all men hold death inawe and experience a physical revulsion towards its unknown andunascertainable consequences! This the courts apparently arewilling to recognize, and rightly so, as sufficient assurance oftrustworthiness, without any requirement of a belief in God ora hereafter.There is some authority that the credibility of the dyingdeclarant may be impeached by a showing of atheism.' Therewould not seem to be any more valid reason for permitting ashowing of atheism to destroy credibility than to permit it tomake the declaration inadmissible.' Why admit a declarationonly to leave it discredited by a clever lawyer playing upon thereligious prejudices of the jury?-DONALD F. Br cx.INJUNCTIONS - EQUITA3LE SERVITUDES - BOARDING HOUSEAS "RESIDENCE PURPOSE". - In a suit to enjoin the operation ofa boarding house on property subject to a covenant limiting theuse to residential purposes only, the court, on appeal, dissolved theinjunction holding the operation of a boarding house not violativeof the covenant providing that "said land shall not be used other-wise than for residence purposes, and shall not be used for asanatorium, hospital or infirmary, and no apartment-house shallbe erected thereon". Beck, P. J., dissented vigorously on theground that both the spirit and the letter of the covenant wereviolated. John Hancock Life Insurance Go. v. DavisIt is an elementary rule of law that covenants restrictingland should be strictly construed in favor of the free and un-trammeled use of property.' The majority of the court, pur-'State v. Hood, 63 W. Va. 182, 59 S. E. 971 (1907). State v. Williams,36 Idaho 214, 209 Pac. 1068 (1922). People v. Lim Foon, 29 Cal. App. 270,155 Pac. 477 (1915). State v. Yee Gueng, 57 Ore. 509, 112 Pac. 424 (1910).Perry's Case, 3 Grat. 631 (1846). Hronek v. People, 134 Il. 139, 24 N. E.861 (1890).'2 WI GORE ON EVIDENCE (1904) § 1443.'State v. Elliott, 45 Iowa 486 (1877). Nesbit v. State, 43 Ga. 238 (1871).5As to this related problem note (1930) 9 N. C. L. Rev. 77.1160 S. E. 393 (Ga. 1931).2J ones v. Williams, 56 Wash. 588, 106 Pac. 166 (1910); Hutchinson v.Ulrich, 145 Ill. 336, 34 N. E. 556 (1893); Be Walsh, 175 Mass. 68, 55 N. E.1043 (1900).2West Virginia Law Review, Vol. 38, Iss. 2 [1932], Art. 11https://researchrepository.wvu.edu/wvlr/vol38/iss2/11

Evidence--Admissibility of an Atheist\u27s Dying Declaration

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Evidence--Admissibility of an Atheist\u27s Dying Declaration

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