Hays v. State , 110 Ala. 60 ( 1895 )

COLEMAN, J.

The appellant was indicted and convicted of larceny from a storehouse. The evidence shows that the defendant was in the employment of one E. H. Jacobi, who was engaged in business as a grocery merchant ; and it seems that defendant had his meals brought to him in a basket to the store. A clerk in the store, one Williams, discovered a quantity of lard concealed in the bottom of the basket of the defendant, covered over with cloths and plates, &c. Williams communicated the discovery of the lard in the basket of defendant to Jacobi. At the time of the discovery of the lard in the basket, the defendant was absent and not within hearing of the parties. Against the objection of the defendant, Jacobi was allowed to testify that “he said to Williams, ‘leave the lard in the basket, just as you found it, and carry it back and put it on the top of the ice box.’” Williams was allowed to testify, among other things, to the same statement. This was clearly hearsay evidence, and not only not admissible, as hearsay, but was calculated to injure the defendant. It was calculated to impress the jury with the belief that these witnesses corroborated each other, and corroboration in irrelevant or immaterial matters is calculated to add weight to other facts testified to by the witnesses, although as to such other facts there may nob be corroboration. It furnishes an illegitimate argument before the jury. It was entirely competent to prove as a fact that the basket was carried and put on the ice box and watched, but the conversation was inadmissible.

A defendant may prove his good character as a fact, bearing upon the question of innocence or guilt, but a defendant cannot prove his good character for truth and veracity, unless it is first assailed: Permissible instructions to the jury, relative to the effect of good character upon the question of guilt or innocence, have been so often defined and explained, that we deem it unnecessary to do more than cite the authorities.—Goldsmith v. State, 105 Ala. 8; Scott v. State, Ib. 57: Webb v. State 106 Ala. 52.

Reversed and remanded.