State v. Payne , 25 Wash. 2d 407 ( 1946 )

I dissent for the reason that I feel that the "verbal acts" rule, approved in State v. Power, 24 Wn. 34, 63 P. 1112, as permitting testimony explanatory of the condition of the deceased, her destination, and her appointment with a physician, has been unduly extended in this case to include pure hearsay. The deceased girl's mother was permitted to testify, over appellant's objection, to a conversation had with the daughter on the day preceding her death. The portion of her testimony which I question is:

"A. She said she wanted to come up to Everett; she had already seen the doctor and he promised to do the work and she wanted to come up here and have it done." (Italics mine.)

No physician, accused by the mother of a deceased girl who has died from the effects of an abortion, can ever meet this type of testimony or escape its consequences. To my mind, it falls squarely within the hearsay rule and within the scope of every reason recognized by ancient and modern jurisprudence upon which the rule is grounded.

MILLARD, C.J., and SIMPSON, J., concur with CONNELLY, J.