McClain v. Anderson Free Press

• Decision Date: 25 March 1958
• Docket Number: No. 17403,17403
• Parties: J. Clint McCLAIN, Respondent, v. The ANDERSON FREE PRESS, a corporation, Appellant.
• Court: South Carolina Supreme Court

Page 750

102 S.E.2d 750

232 S.C. 448

J. Clint McCLAIN, Respondent, v. The ANDERSON FREE PRESS, a corporation, Appellant.

No. 17403.

Supreme Court of South Carolina.

March 25, 1958.

TAYLOR, J., concurs.

STUKES, C. J., and OXNER, J., concur in result.

LEGGE, J., dissents.

OXNER, Justice (concurring in result).

I agree with Mr. Justice LEGGE that the exception extends to statements against the penal interest of the declarant. Our decisions so hold and I think properly so. But I do not think that the facts bring the instant case within the exception.

Where the declarant seeks not only to implicate himself but a third party, I am doubtful whether such declaration may be used as substantive evidence against such third party. Closely analogous is the doctrine of admissions and confessions which permits such statement to be considered only against the person making it. In Allen v. Dillard, 15 Wash.2d 35, 129 P.2d 813, 823, the Court said: 'A statement which under some circumstances may be against the interest of the declarant may not be used to prove matters as to which the statement is not against his interest.' Here the declaration is not being offered for the purpose of showing that Martin committed the crime of bribery, a fact against his interest, but to show that McClain committed bribery. Assuming, however, that a declaration of this kind may under proper circumstances be used against a third party, it should be closely scrutinized so as to avoid an unjust result.

It is essential that we keep in mind the ground for this exception to the hearsay rule. It is based upon the principle of experience that a statement asserting a fact distinctly against one's interests is entirely unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently guaranteed, though oath and cross-examination are wanting. It is upon the assumption that no man will speak falsely to his own hurt and will not make a declaration against his interest unless truth compels it. Therefore, to be admissible, there should be a circumstantial guarantee of the trust-worthiness of the declaration.

The declarations offered in evidence were statements alleged to have been made by Frank Martin to relatives and friends. It is not reasonable to suppose that he thereby intended to expose himself to prosecution, or that he made these statements under any belief that he should do so. Instead of being in the nature of a confession, they were merely loose statements heedlessly made by a braggadocio. They were so characterized by a number of these witnesses. One of them testified that 'Frank Martin loved to brag a little', and another said that knowing Frank Martin as he did, he didn't 'pay any attention to the conversation.' It also may be reasonably inferred that the remarks to some of the witnesses were made to deter them from reporting Martin to the Sheriff for bootlegging.

Of course, the truth of the declaration itself, as well as the credibility of the witness

Page 761

who undertakes to repeat it, must ordinarily be left to the jury. However, it is the duty of the Court in the first instance to determine whether the circumstances are such as to reasonably warrant an inference that the declarations are of a trustworthy nature. In the instant case, I do not think they are.

For the foregoing reasons, I concur in the result of the opinion of Mr. Justice MOSS.

STUKES, C. J. (concurring and dissenting).

In concur in the opinion of Mr. Justice OXNER, and in the result of the leading opinion, that of Mr. Justice MOSS. However, I dissent from the disposition by the latter of the second point of the appeal relating to the instructions to the jury and agree with Mr. Justice LEGGE; I do not think there was prejudicial error in the charge when it is considered as a whole, as it must be.

LEGGE, Justice (dissenting).

In Coleman & Lipscomb v. Frazier, 4 Rich. 146, 38 S.C. 146, 53 Am.Dec. 727, evidence of Meigs' declaration was, as Justice MOSS points out, admitted on two grounds, towit: (1) that the declaration was against the penal interest of the declarant, who at the time of the trial was dead; and (2) that it had been made in the defendant's presence. But, the court having based its decision on both grounds, we cannot evade the consequences of the ruling on the first by saying that the decision might have been rested on the second alone. Where a decision is based on two or more grounds, the ruling upon each is the judgment of the court; neither ruling is obiter; nor is the ruling on one ground less authoritative than that on another. 14 Am.Jur., Courts, Section 83, at p. 298; 21 C.J.S. Courts § 190 b, at pages 315, 316; United States v. Title Insurance & Trust Co., 265 U.S. 472, 44 S.C. 621, 68 L.Ed. 1110; Broderick v. City of New York, 295 N.Y. 363, 67 N.Ed.2d 737; Dooly v. Gates, 194 Ga. 787, 22 S.E.2d 730; Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673; Woodard v. Pacific Fruit & Produce Co., 165 Or. 250, 106 P.2d 1043, 131 A.L.R. 832; In re Finch's Estate, 239 Iowa 1069, 32 N.W.2d 819, 3 A.L.R.2d 1403; Gaskill v. Richmaid Ice Cream Co., 111 Cal.App.2d 745, 245 P.2d 53. We should either follow or overrule Coleman & Lipscomb v. Frazier on the question of admissibility of a declaration against penal interest.

Although the decisions in a majority of the states limit the admission of declarations by persons since deceased to such as are against the declarant's pecuniary or proprietary interest, I am persuaded that the ruling in Coleman & Lipscomb v. Frazier, supra, is sound and should be adhered to. It is difficult to perceive sound reason for excluding a declaration against penal interest while admitting one against pecuniary interest. The exclusionary rule has been thoroughly criticized by Professor Wigmore (Evidence, Third Ed., Vol. V, Sections 1476 et seq.) and Professor McCormick (Handbook of the Law of Evidence, 1954, Sections 255 et seq.). See also the dissenting opinion of Mr. Justice Holmes in Donnelly v. United States, 228 U.S. 243, 33 S.Ct....