Elder v. State

123 Ala. 35

Opinion

DOWDELL, J.

While hearsay eAddence is admissible to prove pedigree, it seems to be the settled rule in this State, that the hearsay statements are limited to declarations made by a deceased relative or member of the family.—White v. Strother, 11 Ala. 720; Rowland v. Ladiga’s Heirs, 21 Ala. 32; Cherry v. State, 68 Ala. 29; Rogers v. DeBardelaben, 97 Ala. 154; 1 Greenleaf on Ev., (15th ed.), § 103; 18 Am. & Eng. Encyc. Law, 258-9.

Pedigree cannot be proven .by general reputation in the neighborhood. The court, therefore, erred in permitting the State to prove, against the objection of the defendant, the relationship betAveen the defendant and Rachel Elder and Paralee Elder by general reputation in the neighborhood in AAdiich they lived.

It cannot be stated as a conclusion of laAV that “relationship is a matter than can scarcely be testified to directly in any case,” and that portion of the oral charge of the court AAdiich avc have quoted, and which Avas excepted to by the defendant, Avas erroneous. The Avritten charges requested by defendant are clearly argumentative and were properly refused.

For the errors pointed out the judgment of the court must be m’ersed and the cause remanded,