The original opinion in this case was concurred in by all the judges of this court. On rehearing, BRICKEN, P. J., and RICE, J., have changed their views on the question of the admission of the dying declaration, and BRICKEN limits his concurrence in the conclusion reached by RICE, J., to the opinion that section 3 of the Constitution does away with the necessity of an oath by any one who does not believe in a Supreme Being or who is an Atheist, and to that extent at least, section 7654, Code 1923, which was brought forward from six preceding Codes, is void and of no effect. I dismiss the argument of the Presiding Judge with the remark that if section 7654, supra, is void as to Atheist it must also be void as to believers in a Supreme Being, and therefore the requirement of an oath with respect to testimony is abrogated. I hardly think that one of the fundamental principles of evidence that has existed in all civilized nations from the dawn of history can be so easily cast aside. For a full discussion of the subject, see the leading case in English Jurisprudence, Omychund v. Barker, 1 Atkyns, 21 et seq.; 1 Greenleaf, Ev. par. 368 (16th Ed.); 1 Stark, Ev. 22.
Does section 3 of the Constitution affect the question here under consideration, without which, it is admitted by both of my brothers, an Atheist is not qualified to take an oath? Section 3 of the Constitution presupposes a religious belief, and every reference or guaranty under that section relates to "religion," which is defined by Webster's Dictionary as: "1. The outward act or form by which men indicate their recognition of the existence of a God or of gods having power over their destiny, to whom obedience, service, *Page 383 and honor are due; the feeling or expression of human love, fear, or awe of some superhuman and overruling power, whether by profession of belief, by observance of rites and ceremonies, or by the conduct of life; a system of faith and worship; a manifestation of piety; as, ethical religions; monotheistic religions; natural religion; revealed religion; the religion of idol worshippers. 2. Specif., conformity in faith and life to the precepts inculcated in the Bible, respecting conduct of life and duty toward God and man; the Christian faith and practice. 3. A monastic or religious order subject to a regulated mode of life; more broadly, the religious state." I fail to find any guaranty in the section for an Atheist who does not believe in a God and has no religious beliefs. With the Constitution as it is and the statute as it is Simpson, J., wrote in Parker v. State, 165 Ala. 1-8, 51 So. 260, 262: "Dying declarations are admitted upon the theory that the consciousness of approaching death dispels from the mind all motive for making a false statement, in view of the fact that the party recognizes the fact that he shall soon appear in thepresence of his Maker." (Italics mine.) Somerville, J. (the elder), quoted Greenleaf with approval in Kennedy v. State,85 Ala. 327, 5 So. 300, 302, where he says: "A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice." Rice, J., in McHugh v. State, 31 Ala. 317, speaking of a dying declaration: "The law deems [dying declarations] equivalent to a sworn obligation." And Mr. Greenleaf, whom all judges in this state hold in high esteem, says: "Without this belief (In a Supreme Being) the person cannot be subject to that sanction, which the law deems an indispensable test of truth."
I am taken somewhat to task by my brother RICE for saying in the original opinion: "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." I repeat that statement with such emphasis as I may give it. This government was formed by men who believed in a Supreme Being and was builded for men and women who believe in an immortality after death, whether Christian, Jew, or Pagan. Not only, as was pointed out in the original opinion, does the fundamental law of both state and nation recognize this, but every official act from the President of the United States to the humblest constable in the land is performed under a solemn official oath recognizing the Deity. Both Houses of Congress and both Houses of our Legislature are opened each day with a petition for divine guidance. The Chief Justices of the state and nation and every justice on every court performs his duty under an oath which recognizes a Supreme Being, and every federal court is opened with the plea: "God save the United States and this honorable Court." Not that we have a national or a state religion, but in striving for the highest in life and in company with all the civilized peoples of all ages we believe in man's immortality. Therefore, I hold that the terms of section 3 of the Constitution cannot be extended so as to admit of testimony by a witness who does not believe in a Supreme Being.
In the opinion of RICE, J., I find this statement: "An 'oath,' such as is mentioned in Code 1923, § 7655, cannot be made, by one who does not believe in God, or, speaking very reverently, some legal equivalent. * * * But we find, and know of no such restriction upon the making of an 'affirmation,' which may be substituted for an 'oath.' " My brother contents himself with some abbreviated definition from Webster's Dictionary and then proceeds to apply his modified rule to dying declarations, so as to except Atheist from the general rules of evidence. I do not find it so in the law books.
Mr. Greenleaf, vol. 1 (16th Ed.) p. 504, § 364b, says: "And if, being a Christian, he has conscientious scruples against taking an oath in the usual form he will be allowed to make a solemn religious asseveration, involving a like appeal to God for the truth of his testimony in any mode which he shall declare to be binding on his conscience." The adoption of an "affirmation" as a substitute for an oath was adopted, not as a relaxation of the rule requiring a belief in a Supreme Being, but in recognition of those who, believing, conscientiously believe also that the divine command is to, "Swear not at all." This class, which includes Quakers and the like, are allowed to make affirmation, which is: "A solemn religious asseveration in the nature of an oath." 1 Atk. 21-46; Cowp. 340, 389; 1 Leach, Cr. Cases 64; Vail v. Nickerson, 6 Mass. 262; Com. v. Buzzell, 16 Pick. (Mass.) 153. The definition given in Webster's Dictionary, as applied to the law, is: "A solemn declaration made under the penalties of perjury by a person who conscientiously declines taking an oath." It is universally held by all of the authorities cited and collated in Words and Phrases, First Series, vol. 5, p. 4872, that "Oath" includes affirmation.
There has been some modification of the common-law rule above stated in a number of the states either by statute or constitutional construction. But, in this state the common-law rule still exists modified only to the extent that the belief in punishment for falsehood may be either here or hereafter. Beeson v. Moore, 132 Ala. 391, 31 So. 456; Blocker, Adm'r, v. Burness, 2 Ala. 354; Porter v. Cotney, 3 Ala. 314. *Page 384
Referring to the proof, which has been questioned by my brother RICE, I can do no better than to quote from Greenleaf on Ev. § 370: "It should here be observed that defect of religious faith is never presumed. On the contrary, the law presumes that every man brought up in a Christian land, where God is generally acknowledged, does believe in Him, and fear Him. The charity of its judgment is extended alike to all. The burden of proof is not on the party adducing the witness, to prove that he is a believer; but it is on the objecting party, to prove that he is not. Neither does the law presume that any man is a hypocrite. On the contrary, it presumes him to be what he professes himself to be, whether atheist or Christian; and the state of a man's opinions, as well as the sanity of his mind, being once proved, is, as we have already seen, presumed to continue unchanged, until the contrary is shown. The state of his religious belief at the time he is offered as a witness is a fact to be ascertained; and this is presumed to be the common faith of the country, unless the objector can prove that it is not. The ordinary mode of showing this is by evidence of his declarations, previously made to others; the person himself not being interrogated; for the object of interrogating a witness, in these cases, before he is sworn, is not to obtain the knowledge of other facts, but to ascertain from his answers the extent of his capacity, and whether he has sufficient understanding to be sworn."
It is my opinion that the judgment of this court should stand, and that the application for rehearing should be overruled.