55 So. 2d 530 | Ala. | 1951
Lead Opinion
We cannot agree with the opinion of the Court of Appeals in its holding that no reversible error intervened in the cross-examination of defendant’s character witness Lester Whitten.
It is needless, of course, to repeat here the examination of the witness as revealed
We have no quarrel with the principles enunciated, but we cannot agree that they were properly applied in the instant case.
Undoubtedly, to permit a witness to testify that he had seen defendant drunk or drinking, tended to prove character (his drinking proclivities) by specific acts. To permit a witness to testify that he had heard that the defendant drank tends to prove the general reputation of defendant for drinking. Character can only be proven by reputation. To change an inquiry as to what a witness had seen, to a question as to what a witness had heard, is not to- re-frame the inquiry, but is to ask an entirely different question. And we can think of no way by which the question actually asked could have been made legal by other evidence.
As we have indicated the evidence is illegal for any purpose, and cannot be made legal, and general grounds assigned in support of the objection to it was sufficient and should have been sustained.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for further consideration.
Reversed and remanded.
Dissenting Opinion
is of the opinion that the Court of Appeals has applied the doctrine of error without injury, and,, as a consequence the judgment of the Court of Appeals should be affirmed. He, therefore, dissents.
