Green v. State , 96 Ala. 29 ( 1892 )

COLEMAN, J.

Tbe defendant was convicted of tbe murder of Harriet Marr and sentenced to be bung. Tbe case is brought here for review of tbe ruling of the trial court upon tbe admission of certain testimony, Tbe witness Armistead Gray was asked, “Do $ou know tbe place where Harriet Marr was said to have been killed?” Tbe witness answered be did. Both tbe question and answer were objected to. Prima fane, it may-be both tbe question and answer were objectionable. It is permissible, in fact, unavoidable, sometimes to propound a question, prima facie objectionable, when it is merely-introductory to other questions, necessary to elicit facts which are legal evidence. Whenever it is subsequently shown that the apparent illegal evidence is a connecting part *of, or explanatory of, legal evidence and was only used as necessarily introductory thereto, an objection to it can not be sustained. But unless its admission is justified by Subsequent testimony, or is afterwards excluded from the jury by the court, it is reversible error. The only other question propounded to this witness contains the same objectionable expression, “Where did Tillman Autrey live at the time Harriet Marr is said to have been hilled ?” Both these questions and answers were calculated to impress the jury with the impression as a fact proven that Harriet Marr was killed, and at a certain place. It was necessary for the State to prove by legal evidence that Harriet Marr was killed. If it had been conceded by the defendant that Harriet Marr was killed, and at the certain place referred to, perhaps it would have been permissible to have pursued this short way to get at other facts, to be thereafter inquired about. It was an easy matter to have framed proper questions to this witness in order to elicit the only facts for which it seems from the record he was introduced. There was evidence tending to show that the homicide had been committed near a designated mile post. Do you know where the five-mile post is on the Livingston and Gainesville road? Do you know where Tillman Autrey lives? How far is it from one .to the other? Similar questions would have elicited facts to which the witness, if he knew, could testify. Who said she was killed there? General notoriety is sometimes admissible to prove notice of an existing fact, but very rarely to prove the fact itself. It is the safer practice to observe well recognized rules, and especially in cases of such grave importance.

The objection to the testimony of Barney McNeal was properly overruled.

The witness Henry Green having testified, among other thing's, to the removal of the body from the grave, was asked by the solicitor, if he had shown the place to any one and to whom. The witness replied- that he had shown the place to the sheriff and to Mr. Steve Smith. Both question and answer were objected to. Mr. Steve Smith was then put upon tbe stand, and, against tbe objection of tbe defendant, testified that tbe witness Henry Green bad shown him tbe place. This is tbe full extent of tbe testimony of Mr. Steve Smith. If Mr. Smith bad been examined as to facts, that be saw a place which indicated that some one bad been buried there, or exhumed, or marks of a struggle, or any signs or evidence tending to show a murder bad been committed, this would have been legal evidence, and it was entirely competent for him to have stated that tbe witness Green bad pointed out to him tbe spot where these indications were to be seen. It served to identify tbe spot as tbe same one testified to by tbe witness Green. Tbe statement that tbe witness Green bad shown it to him then would not be evidence for any purpose other than to identify it, as being tbe same place in regard to which be bad testified. So far as tbe facts testified to by tbe witness Smith agreed with Green, the latter would be corroborated. But a witness can not corroborate himself by introducing other witnesses to prove that be made tbe same statement to them to which be deposed, or that be showed other witnesses a spot in regard to which be bad testified. It is insisted that this error was cured by tbe court by excluding afterwards from tbe jury tbe testimony of tbe witnesses Green and Smith in this respect. It has been held often in this State that testimony improperly admitted in tbe first instance, and afterwards excluded by tbe court, with instructions to tbe jury not to regard it, tbe error was remedied, and tbe objection unavailable on appeal. — Jackson v. State, 94 Ala. 85; Oldlds v. State, 55 Ala. 80; Jordon v. The State, 79 Ala. 12. This court regards with caution tbe practice of admitting illegal evidence and afterwards excluding it. It has frequently declared that tbe practice can not be encouraged, and when tbe record shows that anything was wrongfully said or done in tbe presence of tbe jury by tbe court, calculated to produce an impression upon the minds of tbe jury to tbe prejudice of tbe defendant, this court will reverse tbe case. Although tbe court instructed tbe jury not to regard this evidence, it was accompanied with the statement that the court regarded the evidence as legal. — • Griffin v. State, 90 Ala. 601. It is a difficult matter to entirely remove impressions once made upon tbe jury by tbe introduction of illegal evidence, and we can not say it has been done, when the jury are told by tbe court, in effect, that notwithstanding its exclusion, the court is still of tbe opinion that tbe evidence is legal. For tbe errors mentioned, tbe case must be reversed and remanded.

Eeversed and remanded.