Stewart v. State , 63 Ala. 199 ( 1879 )

STONE, J.

As a general rule, one charged with crime can not make evidence for himself, by proof of his own declarations. There are exceptions to this rule; such, for instance, as words which are themselves a part of an act, and thus tend to explain it. These are admitted as a part of the res gestae. The question in this case, which the witness was not allowed to answer, was very general in its ■ terms. Almost anything the accused may have said, tending to show why he came, or where he was when the pistol was fired and heard by him, or what information he had received which induced him to come, or for what purpose he came, would have been responsive to it. The Circuit Court was not informed what was expected to be proved by this witness ; nor can we know whether the answer would have been legal evidence or not. If we were to reverse, and send the case back for another trial, it is not shown that the answer of the witness, when given, would not be illegal evidence. The record fails to show that the Circuit Court excluded legal evidence,' and, therefore, it fails to show that error was committed. Error is never presumed, but must be shown. — Burns v. The State, 47 Ala. 870.

The judgment of the Circuit Gqurt is, affirmed.