Berney v. State , 69 Ala. 233 ( 1881 )

BEICKELL, C. J.

The admission made by the solicitor as to the evidence of the absent witnesses, Turner and Pruitt, was-offered as a whole. If any part of it was inadmissible, the City Court did not err in excluding it entirely. It was not the duty of the court to examine it, distinguishing the admissible from the inadmissible, receiving the one and excluding the other. 1 Brick. Dig. 887, § 1202. The part of it containing the advice Pruitt gave the defendant when he heard of Chilton’s threat and procured the pistol, was irrelevant and should not have been admitted. If the threat the defendant was informed Chilton had made, would have justified carrying the pistol concealed, of itself it afforded the justification, whatever may-have been the advice given, or opinion expressed by Pruitt.. Whether it was a justification — whether it was a threat of- an attack upon the defendant, or gave the defendant good reason to apprehend an attack, was for the determination of the jury in view of the facts before them. In their determination, they could not be aided or influenced by a consideration of the impression it made on Pruitt, and the opinion or advice he was induced to give the defendant.

The conduct of the defendant at the political meeting, furnishing the cause of his arrest, was irrelevant and ought to have-been excluded. It may have been part of the res gestae and explanatory of the arrest, and the arrest may have led to the discovery that he was carrying a pistol concealed about his person. If the main fact in this cause, or if a material fact, was the arrest, that conduct would be so connected with it that evidence of it would be admissible. The main fact-in controversy was-the carrying of the pistol concealed, under circumstances not warranting it by law. Facts not having a tendency to the proof or disproof of this fact, and especially circumstances having a tendency to prejudice the jury unduly against the accused,, ought not to be admitted in evidence. — State v. Wisdom, 8 Port. 511; Campbell v. State, 23 Ala. 44.

For the error in the admission of this evidence, the judgment must be reversed and the cause remanded; the prisoner remaining in custody until discharged by due course of law.