McNaron v. State

WALKER, P. J. The charge against the defendant was sought to be supported by evidence of his possession of a pistol on the occasion of an altercation between him and one Wakefield. The defendant duly excepted to the action of the court in overruling objections made by him to a question of the solicitor to Wakefield which called for the words that passed between him and the defendant on the occasion referred to, and to the answer of the witness to that question, in which was repeated very offensive language stated by the witness to have been used by the defendant. The evidence called for and elicited by the question had no relevancy whatever to the issue as to whether the defendant carried a pistol concealed about his person or on premises not his OAvn or under his control. This testimony as to the defendant’s misbehavior not only furnished no support to the charge made against him. 172 but was well calculated to create an impression unfavorable to him, and to mislead the jury to convict of one offense on evidence of other misconduct. The court was in error in admitting it. — Ross v. State, 139 Ala. 144, 36 Suoth. 718. The statement of the witness Russell as to his hearing “Wakefield or his boy one saying something about the defendant having a pistol” was subject to objection as mere hearsay, there being nothing in the testimony to indicate that the statement deposed to was made in the presence or hearing of the defendant or under such circumstances as to afford ground for a presumption that he acquiesced in it. — Abercrombie v. Allen, 29 Ala. 281; Spencer v. State, 20 Ala. 24; Jones on Evidence, § 289. Reversed and remanded.