The opinion
Opinion Concurring in Result
DeBruler, J.
Although I concur in the result of the majority opinion, I must disagree with the Court’s treatment of the admissibility of the proffered evidence in this case on several grounds.
At the outset I do not believe the majority can apply the doctrine of self-serving declaration to justify the exclusion of this evidence at the trial, since the objections made by the State to this evidence were based solely on hearsay and not, as the majority states, on self-serving declarations. The record discloses the State made the following objections to the witness testifying about conversations with appellant:
“Objection your honor. This is hearsay conversation. It hasn’t been shown that this witness witnessed the fight. This is a hearsay conversation and we object to it for that reason.
“To which question we will object your honor for the reason that it is hearsay and secondly insofar as it involves Simmie Lee Thomas it is not material to the issue in this *47 case and for the further reason that this conversation is too remote in time from the incident in question. We are concerned with the events that occurred on February 6, 1971.”
We have held many times that in order for a party to preserve his rights on appeal he must object to the admission of evidence at trial and state the grounds of his objection. Wells v. State (1970), 254 Ind. 608 , 261 N. E. 2d 865 . Since the State chose to rely on the hearsay rule as their sole ground for the exclusion of this evidence I do not believe it is proper for this Court to attribute a different one on appeal. It is particularly inappropriate to do so in a criminal case such as this in which the erroneous trial court ruling excluded an accused’s defense evidence, since the selection by this Court of a new and different ground to sustain such ruling, results in a denial of the defendant’s fundamental right to be heard by himself and counsel and to make an evidentiary foundation supported by argument which might refute the application of such ground. As an example, in Combs v. U.S. (1972), 92 S. Ct. 2284 , the trial court denied a motion to suppress evidence upon consideration of the merits of the motion. On appeal to the Circuit Court, that court affirmed the trial court on the grounds that the record showed that the defendant had no standing to make the Fourth Amendment claim contained in his motion to suppress. The Supreme Court of the United States granted certiorari and held that the Circuit Court had committed error in disposing of the appeal on the basis of standing, since, although there had been a broad evidentiary hearing on the motion to suppress, neither the parties nor the court had focused upon the standing issue at that hearing and the defendant had not been afforded a meaningful opportunity to establish his standing. The cases and authorities cited by the majority do not support the application of the “duty to affirm” rule to situations like this. I believe there are none.
However, even if the objection of self-serving declaration *48 was properly before this Court, I would further disagree with its application in this case. Professor McCormick has written in regard to the background and justification for this rule:
“The notion that a party’s out-of-court declarations could not be evidence in his favor because of their ‘self-serving’ nature seems to have originated as an accompaniment of the now universally discarded rule forbidding parties to testify. When this rule of disqualification for interest was abrogated by a statute, any sweeping rule of inadmissibility regarding ‘self-serving’ declarations should have been regarded as abolished by implication.” McCormick, EVIDENCE § 290 (1972).
I believe that the use of the self-serving declaration ground as an exclusion of otherwise relevant and competent evidence has outlived its usefulness, but even if accepted as a viable theory today, I do not believe the facts of this case would give rise to its use as a bar to the admission of evidence. Both of the Indiana cases cited by the majority opinion as support for their position concern only declarations made after the criminal act involved and hence the declarations treated in those cases may legitimately be viewed as attempts by the defendant to manufacture a defense in his own behalf. However, where the circumstances of a case indicate that the probability of the trustworthiness of a declaration is high and there is an absence of surrounding circumstances which would point to the probability of the manufacturing of testimony, such declaration should be admitted to the jury in order that they would be able to consider all the relevant evidence and perform their prime functions as a fact finder. The use of this absolute exclusionary rule may work great unfairness on a defendant who is barred from introducing otherwise viable evidence which may tend to demonstrate his innocence while the State on the other hand is free to introduce any incriminating evidence it possesses.
The facts in this case indicate that the statements sought to be admitted here were made in the latter part of January while the shooting took place on February 6 of the same *49 year. It seems to me, therefore, that such statements as these were made at a time when there was no apparent motive for misstatement on appellant’s part and they do not carry with them the overriding dangers of manufactured testimony to be guarded against by the self-serving rule. The total exclusion of evidence which may be important and even crucial to a defendant’s case is an overly broad and overly harsh solution to a problem which is essentially one of judging credibility.
I also disagree with the majority’s treatment of the hearsay issue in this appeal. The widely accepted definition of hearsay is as follows:
“Hearsay evidence is testimony in court or written evidence of a statement made out of court, such statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out of court asserter.” McCormick, EVIDENCE §225 (1954); Harvey v. State (1971), 256 Ind. 473 , 269 N. E. 2d 759 ; See also Indianapolis Newspapers, Inc. v. Fields (1970), 254 Ind. 219 , 259 N. E. 2d 651 (Opinion of DeBruler, J., with one Judge concurring.)
The two offers of proof with which we are concerned here actually involve two different types of assertions. The first is the assertion that defendant stated that he was afraid of Simmie Thomas. This should have been admitted into evidence since it is not within the definition of hearsay itself; that is, it is not offered to show the “truth of the matters asserted therein” since no factual occurrences are sought to be established by it.
The other aspects of this conversation that we are concerned with involve the assertion by defendant to the testifying witness that he had been in a fight with Simmie Lee Thomas. Although this comes within the general definition of hearsay it also should be admissible evidence under the well recognized state of mind exception to the hearsay rule. McCormick, EVIDENCE § 294 (1972). This exception urged by appellant in his brief recognizes that when appellant’s state of mind *50 is a legal issue in a case, as it is here when the charge is first degree murder, those circumstances which tend to prove the state of mind of the appellant are admissible into evidence for that purpose. I believe the circumstances outlined here concerning the fight with Simmie Lee Thomas is relevant to explain the purported fear of the appellant regarding Simmie Lee Thomas and would be admissible on the issue of the appellant’s state of mind.
I am concurring in the result of this opinion, however, because I believe the record shows that this evidence had already-been brought before the jury both by the prior testimony of the witness Mildred Williams and by the testimony of other prosecution and defense witnesses.
Prentice, J., concurs.
Note. — Reported in 300 N. E. 2d 89 .