Overstreet v. State

1 Morr. St. Cas. 112, 3 Howard 328

• Court: Mississippi Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Trotter, J.:

The plaintiff in error was indicted in the circuit court of Holmes county, for the offense of fornication. On the trial the attorney for the state offered, in support of the prosecution, testimony that it was the general reputation in the neighborhood of the defendant’s residence, that the defendant and Sarah Hamilton did live together in a state of fornication as charged in the indictment. This proof was objected to, but admitted by the court to go to the jury. The error assigned is, the admission of this testimony. The charge in the indictment is of a specific offense, and must be proved as all other offenses are established; that is, by proof pointed out by law. It is a general rule that hearsay evidence is not admissible; and the cases which have been made exceptions to this rule, have proceeded upon the ground of necessity alone. This is not a case which falls within any of the reasons of the exceptions. And besides, in this case, the witness states the strongest possible reason excluding it, which is, that he believed the neighbors who had spoken of the cohabitation knew nothing about it.

Let the judgment be reversed, and a venire de novo awarded.