Bilberry's Adm'r v. Mobley

21 Ala. 277

• Court: Supreme Court of Alabama
• Decided: June 15, 1852
• Status: Published

Opinion

GOLDTHWAITE, J.

— The rule has been repeatedly recognized by this court, that, where evidence is prima facie irrelevant, the person offering the testimony must show how it could be made relevant, by connecting it with other facts which are proved, or by offering it in connection with other facts expected to be proved, Abney v. Kingsland, 10 Ala., 355, and cases there cited. The evidence set out in the bill of exceptions was prima facie irrelevant against the defendant below, unless proof had been made tending to connect the intestate, Henry Bilberry, with the fraud, or unless it was offered in connection with evidence which would have that tendency. Abney v. Kingsland, supra.

The question as to the admissibility of evidence is for the court to decide, and, Avhen called upon, it should apply the test at the time at which it is offered, although the subsequent proof of facts, upon which its admissibility depended, might cure the error; but where such facts do not appear affirmatively from the record, the instructions given to the jury, “ to disregard such proof, in the absence of other testimony tending to connect the intestate with the fraud,” cannot, of itself, divest the decision of the court of error in admitting the evidence. The case of Abney v. Kingsland, supra, is clear upon this point; and see also Jones v. Norris, 2 Ala., 526.

In consequence of the error of the court in admitting this evidence, the judgment is reversed, and the cause remanded.