92 Ala. 61 | Ala. | 1890
This case was tried in the primary court without the intervention of a jury, under the authority of the statute applicable to the .trial of misdemeanors in that court when the defendant fails to demand a jury. — Acts 1886-87, p. 837 § 7. In such case, the decision of the court upon the
The statements made by Annie Randall to the witness Mc-Whorter, when the defendant was not present, are plainly inadmissible. They were ex parte versions as to what the defendant had done. The evidence was merely hearsay, and should have been rejected. Furthermore, the conversation was in regard to a matter irrelevant to the issue in this case, and,, for that reason, also, the testimony should have been excluded: — Tolbert v. The State, 87 Ala. 27; 3 Brick. Dig. p. 287, § 592. For this error the judgment of the trial court must-be reversed.
The circumstances of the arrest of the defendant, and the search of his person, do not sufficiently appear to enable tliis court to pass upon the evidence in- that connection with any assurance that such conception of that transaction as might be gleaned from the meagre statement of the bill of exceptions would correspond at- all with the facts in reference thereto, as fully developed on the trial. It would serve no good .purpose, solaras another trial'is concerned, to express an opinion based, in part at least, ' upon conjecture as to what the proof showed as to facts having a material-bearing upon 'the question. For this reason we will- not undertake to review the ruling of the trial court on that subject. - ■
Reversed and remanded.