Opinion
8 Div. 591.
November 8, 1951.
Appeal from the Circuit Court, Morgan County, J. H. Crow, Jr., J.
S. A. Lynne, Decatur, for petitioner.
A witness to character cannot speak of particular acts or even the course of conduct of the person inquired about, but is confined to a statement of general reputation in the neighborhood in which he lives. Cross-examination of a character witness must be conducted within the limits of the inquiry. Way v. State, 155 Ala. 72, 46 So. 273; Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; Bedingfield v. State, 24 Ala. App. 398, 135 So. 656. The trial court will be put in error for admitting palpably illegal evidence when only a general objection is made. Oates v. State, 156 Ala. 99, 47 So. 74; Alabama Fuel Iron Co. v. Minyard, 210 Ala. 299, 97 So. 918; Davis v. State, 17 Ala. 415; Cunningham v. Cochran, 18 Ala. 479; Pool v. Devers, 30 Ala. 672; LeCroy v. Wiggins, 31 Ala. 13; Gabriel v. State, 40 Ala. 357; Espalla v. Richard Sons, 94 Ala. 159, 10 So. 137; McClellan v. State, 117 Ala. 140, 23 So. 653; Louisville N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572.
Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for respondent.
A general objection should be sustained only if the evidence is illegal for any purpose and cannot be made legal by other evidence or by otherwise framing the inquiry. Louisville N. R. Co. v. Scott, 232 Ala. 284, 176 So. 572; Walden v. State, 34 Ala. App. 29, 36 So.2d 556; Pope v. State, 251 Ala. 286, 36 So.2d 899; Walker v. Jones, 33 Ala. App. 348, 34 So.2d 608. It would have been legal for the solicitor to have asked the witness whether he had seen or heard that appellant used intoxicants in public places. Such questions are not aimed at character, but at testing accuracy, knowledge and credibility of the witness as a means of establishing his familiarity with appellant's character and reputation. Snead v. State, 243 Ala. 23, 8 So.2d 269; Sanders v. State, 243 Ala. 691, 11 So.2d 740; Vinson v. State, 247 Ala. 22, 22 So.2d 344; Jarrell v. State, 251 Ala. 50, 36 So.2d 336; Mullins v. State, 31 Ala. App. 571. 19 So.2d 845; Jones v. State, 31 Ala. App. 504, 19 So.2d 281; Osborn v. State, 32 Ala. App. 105, 22 So.2d 538; Flournoy v. State, 34 Ala. App. 23, 37 So.2d 218; Johnson v. State, 34 Ala. App. 623, 43 So.2d 424.
We cannot agree with the opinion of the Court of Appeals in its holding that no reversible error intervened in the cross-examination of defendant's character witness Lester Whitten.
It is needless, of course, to repeat here the examination of the witness as revealed by the opinion of the Court of Appeals. That court recognized that character cannot be proven by specific act, but based its opinion on the fact that only a general objection was interposed to the question, and that no error results in overruling such objection unless the evidence sought is illegal for any purpose and cannot be made legal by other evidence, or by otherwise framing the question. Citing Louisville N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572.
We have no quarrel with the principles enunciated, but we cannot agree that they were properly applied in the instant case.
Undoubtedly, to permit a witness to testify that he had seen defendant drunk or drinking, tended to prove character (his drinking proclivities) by specific acts. To permit a witness to testify that he had heard that the defendant drank tends to prove the general reputation of defendant for drinking. Character can only be proven by reputation. To change an inquiry as to what a witness had seen, to a question as to what a witness had heard, is not to reframe the inquiry, but is to ask an entirely different question. And we can think of no way by which the question actually asked could have been made legal by other evidence.
As we have indicated the evidence is illegal for any purpose, and cannot be made legal, and general grounds assigned in support of the objection to it was sufficient and should have been sustained.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for further consideration.
Reversed and remanded.
All the Justices concur, except BROWN, J., who dissents.
BROWN, J., is of the opinion that the Court of Appeals has applied the doctrine of error without injury, and, as a consequence the judgment of the Court of Appeals should be affirmed. He, therefore, dissents.