I dissent from the decision of the majority as to the offered testimony of witness Wheeler.
It was utterly incompetent. It was not substantive proof. It was testimony as to what an employee of his told him someone purporting to be Boy Moore (who may or may not have been Moore) told her to tell Wheeler. "Wheeler was in his own room and could have seen.the man and no reason was given as to why he did not, nor, apparently, did the man demand to see Wheeler. The fact that a slip of paper was used to contain the name of Moore adds nothing to the competency of the offered testimony. Written statements are as much within the rule as oral. It is elementary that statements made by third persons to a witness are hearsay and inadmissible. 10 R. C. L., p. 959; 22 C. J., p. 199 et seq., §§ 166, 168.
*658While there are exceptions to this elementary law, such as relate to dying declarations, confessions, and declarations against interest, statements as to pedigree, reputation, and testimony of a sworn witness in a former trial, former statement of a witness and the like, this, comes under no exception. In fact this is as plain an example of hearsay evidence as ever seen. The hypothetical case put forth by the writer of the majority opinion is not appropriate. There, the actual presentation and receipt of a document at a given time might be some substantive evidence. But the “direct, positive, first-hand, material, competent and relevant testimony” of who presented the document would most positively be the one to whom the actor presented it, vis., the stenographer. So here, appellant tried to force the evidence of the wrong witness instead of the one possessing the “direct, positive, first-hand, competent and relevant evidence.”
This decision, for the first time in the jurisprudence of this state, legalizes hearsay and incompetent evidence. I do more than dissent. I protest against this innovation.
The evidence produced in the trial of the case more than amply justified the verdict. They are guilty beyond a reasonable doubt, and our statute, § 1752, Rem. Comp. Stat., requires us to “disregard all technicalities and determine all causes upon the merits thereof.” There was no error justifying a reversal, and the judgment should be affirmed.