Dodd v. State

| Ala. | Nov 15, 1890

WALKER, J.

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 facts is, in legal effect, equivalent to the verdict of a j ury. — Boyd v. The State, 88 Ala. 169" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/boyd-v-state-6513661?utm_source=webapp" opinion_id="6513661">88 Ala. 169; Skinner v. The State, 87 Ala. 105" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/skinner-v-state-6513487?utm_source=webapp" opinion_id="6513487">87 Ala. 105. Even if the statute had authorized this court to review on appeal such finding as to the facts, no such review could be had in this case, as the bill of exceptions does not purport to set out all the evidence, or even the tendencies of the evidence, except so far as the particular objections to the testimony are-concerned, If, from what is thus disclosed, it is ascertained that, against the objection and exception of the defendant, illegal evidence was admitted, the judgment must be reversed. The record in this case does not afford the means of determining what other evidence there was, or to what, if any, extent the trial court relied upon the testimony admitted against the defendant’s objection. Certainly, in the absence of any showing that the findings of fact were otherwise supported, the presumption could not be indulged in a criminal case that the admission of legal evidence was error without injury. — Maxwell v. The State, 89 Ala. 150" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/maxwell-v-state-6513805?utm_source=webapp" opinion_id="6513805">89 Ala. 150; Vaughan v. The State, 83. Ala. 55.

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" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/tolbert-v-state-6513462?utm_source=webapp" opinion_id="6513462">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.