Shields v. Henry , 31 Ala. 53 ( 1857 )

STONE, J.

— The question on the admissibility of the evidence may be thus stated. The plaintiff offered evidence, which, by itself, was clearly irrelevant and inadmissible. In answer to the objection of defendant, his counsel stated to the court, “that he could probably, by other evidence, so connect the defendant Daniel Walker witb the entries, as to make them competent evidence.” The entries spoken of were made by and in the books of other persons, not parties to this suit. To the admission of this evidence defendant excepted.

In the ease of Wiswall v. Ross, 4 Porter, 321-30, this court said, “If the competency of any matter as testimony depends upon some fact of which there is no proof, there is no error in rejecting such matter, when presented alone, and without an offer to prove what might make it competent evidence. — See Clendenning & Bulkley v. Ross, 3 Stew. &. Por. 267 ; Gee v. Williamson, 1 Por. 320.” In Crenshaw v. Davenport, 6 Ala. 390, the following language is found: “When the relevancy is not apparent from the evidence offered, but other facts will make it so, the duty of the party offering it is to state its connection with the other facts, in order that its relevancy may be disclosed to the court.” — See Cunningham v. Cochran, 18 Ala. 480 ; Mardis v. Shackleford, 4 Ala. 443; Cuthbert v. Newell, 7 Ala. 457.

We do not think enough was stated in this case, to justify the introduction of the evidence. The statement made by the counsel was very indefinite, and falls far below the rule laid down in the authorities above cited. We do not say that, in all cases of testimony prima facie irrelevant and immaterial, the counsel should be required to state the minute facts which he relies on to show the relevancy. We think, however, that the statement should be of such facts as tend to show that the connection will be made. Otherwise, much of the time of the court may be wasted in fruitless'investigation, and much illegal evidence be placed before the jury — evidence calculated to produce on the minds of that body impressions which are not'easily eradicated. — Carlisle v. Hunley, 15 Ala. 623; Florey v. Florey, 24 Ala. 247. But, in this case, where the testimony objected to was not only prima facie irrelevant, but illegal, being the mere statement of a stranger to the record, we think the statement should have gone further, and shown such a state of facts, afterwards to be proved, as would reasonably convince the court that the legality of the testimony would be established. The same rule governs a ease of this character, as that which governs the introduction of secondary evidence.

The rule is settled in this State, that if illegal evidence be admitted, against the objection of the adversary, nothing less than an explicit direction to the jury to disregard such evidence will cure the error. — See authorities supra. It is here contended for appellees, that the court did instruct the jury to disregard the evidence we hafe been considering. We do not so understand the record. True, the court informed the jury, that “the mere fact of Daniel 'Walker having access to the books of J. E. Walker would not amount to a recognition by said Daniel of the entries as being correct.” This was not a withdrawing of the evidence from the jury. It amounted to no more than an instruction to that body that one specified circumstance was not enough to connect Daniel Walker with the entries. The instruction should have been specific.

If the bill of exceptions contained evidence showing a recognition by Daniel Walker of the correctness of those entries, we would regard the erroneous action of the court as healed by such subsequent evidence; and the case would, on this point, be affirmed, on the doctrine of error without injury. The record contains no such evidence.

The charge of the court in reference to interest, is free from error, on the authority of Cheek v. Waldrum, 25 Ala. 152 ; Waring v. Henry & Mott, at the present term.

The judgment of the circuit court is reversed, and the cause remanded.