Martin v. Hardesty

CHILTON, C. J. We are of opinion that the court erred in excluding the evidence of the bad character of Hardesty from the jury ; and that his only occupation was that of gambling and horse-racing. It would certainly require less stringent proof to make out probable cause for prosecuting such a character for larceny, than one who main- ■ tained a good character, and followed an occupation for a livelihood altogether lawful. The testimony of Chambers, “that Oran Marlin told him, while in possession of the slave alleged to have been stolen, that said slave belonged to him, and that he had given Hard-esty a power of attorney, and employed him to take her to Mobile and sell her”, &c., was, when taken in connection with the other proof, partly legal, and partly improper. It was proper to prove that, having the possession, he said he ' was the owner, as this was explanatory of the possession, showing [461] that lie held the slave in his own right; but his declarations that he had employed Hardesty to sell the slave in Mobile, and had given him a power of attorney for that purpose, were improper, because they related to a past transaction, — were mere hearsay, and could not constitute part of the res gestee. This is a familiar distinction, and recognized by numerous decisions of this court. The testimony, however, was objected to as a whole ; and the rule in such case justifies the court in overruling such objection. — See 2 Ala. R.280; 4 ib. 99; 13 ib. 587; 15 ib. 535; 20 ib. 392; 22 ib. 416; 23 ib. 335; ib. 659; 25 ib. 433. It was also improper for the ■ witness Kennedy to testify what Oran Martin told him as to the character of the writing he and Hardesty had entered into on a prior occasion at the house of the witness. This was not part of the res, and, relating to a past transaction of which the conversation formed no part, was hearsay merely, and improperly admitted. The law which must govern such cases is fully laid down in the cases of Leaird v. Davis, 17 Ala. R. 27; Long v. Rogers, ib. 540; 19 ib. 321; Ewing v. Sanford, 19 ib. 605; 21 ib. 157. It is needless, therefore, to discuss the points attempted to be presented by the charges. As the other points presented will hardly again arise, we deem it unnecessary to decide them. Judgment reversed, and cause remanded.