59 So. 735 | Ala. Ct. App. | 1912
The defendant was indict-
ed for grand larceny, and the evidence tended to show that he and one Bains stole a hack, carried it to the city of Huntsville, and there sold it.
Against the objection of the defendant, the witness Bains — the accomplice — was, in answer to questions propounded by the state, permitted to testify that, when they carried the hack to Huntsville, they also carried two horses, two saddles, and some harness. Then, over the objection of the defendant, the witness was further permitted to testify that “the saddles came from Jeff Peck’s house,” and that 'the “harness came from a man’s ’twixt here and defendant’s house, a little low man — do not know his name.” For the purpose of throwing light on the above testimony — we presume it was for the purpose — the solicitor, at a later stage of the proceedings, introduced one Roland Garth, who testified that on one occasion the defendant was in Hartselle, and, in substance, led him into a private conversation, and told the witness that he ivas engaged in selling “junk,” and that if he would get him tobacco, clothes, and things like that he would pay him for them, intimating in the conversation that Bains was engaged in that character of business for him. It is plainly inferable from the witness’ testimony that, if Avhat he said was true, the defendant, in effect, undertook to get the Avitness to steal- articles and deliver them to him for sale.
The fact, however, that “the saddles came from Jeff Peck’s house” and the harness from the “house of a lit-
This apparently harmless evidence, when colored by the subsequent testimony of the witness Garth that the defendant had asked him to steal for him, coupling Bains’ name in such a way with that request as to indicate that Bains, at least, was similarly engaged, gave to that testimony an insidious tendency, and injected into tlie case a consideration which the facts did not warrant, viz., that the defendant and Bains may have stolen, or that the defendant may have received from two possible confederates in crime, “Jeff Peck” and “the little low man,” knowing that they had been stolen for his benefit, the saddles and the harness — considerations utterly unwarranted by the evidence. “Rumors and suspicions may be born of such facts,” but such facts cannot properly be admitted in evidence before a jury, and thereby possibly influence their verdict. — Gassenheimer’s Case, supra.
We are therefore of the opinion that the trial court was in error in permitting the witness Bains to testify, as shown in the above opinion, and that we cannot hold that the evidence was not prejudicial to the defendant. The judgment of the court below is reversed, and the cause remanded.
Reversed.and remanded.