Elder v. State

• Decision Date: 15 June 1899
• Citation: 26 So. 213,123 Ala. 35
• Parties: ELDER v. STATE.
• Court: Alabama Supreme Court

26 So. 213

123 Ala. 35

ELDER v. STATE.

Supreme Court of Alabama

June 15, 1899

Appeal from circuit court, Bullock county; A. A. Evans, Judge.

Dan Elder was convicted of incest, and appeals. Reversed.

On the trial of the case the evidence for the state tended to show that the defendant was guilty of illicit intercourse with Paralee Elder; that the defendant was the legitimate son of one Jim Elder, now deceased; that Paralee Elder was the granddaughter of the said Jim Elder,-she being the legitimate daughter of Leroy and Rachel Elder, and said Rachel Elder being the illegitimate daughter of said Jim Elder and a woman whose name was Lydia Jones; that said Jim Elder and Lydia Jones were never married; that said Rachel Elder was for some 5 or 6 years prior to her marriage, which occurred about 16 years ago, an inmate of the household of the said Jim Elder and that said Jim Elder called her his daughter, and that Rachel called him "father." Upon the introduction of one Andrew Berry as a witness for the state, he testified among other things, that he had known Jim Elder in his lifetime, and also knew the defendant and Rachel Elder and Paralee Elder. The solicitor then asked the witness the following question: "How are the defendant and Rachel Elder regarded in the neighborhood in which they live?" The defendant objected to this question on the ground that it called for hearsay, immaterial, and irrelevant evidence. The court overruled the objection, and to this ruling the defendant duly excepted. Upon the witness answering that they were regarded in the neighborhood in which they lived as half brother and sister, the defendant moved to exclude the answer on the ground that it was hearsay, immaterial, and irrelevant. The court overruled this objection, and the defendant duly excepted. The solicitor then asked this witness the following question: "How are the defendant and Paralee Elder generally regarded in the neighborhood in which they live?" The defendant objected to this question on the ground that it called for hearsay immaterial, and irrelevant evidence, and duly excepted to the court's overruling his objection. Upon the witness answering that they were generally regarded in the neighborhood in which they lived as uncle and niece, the defendant moved to exclude the answer upon the same grounds as stated to the objection to the question, and duly excepted to the court's overruling his motion. The evidence for the state further tended to show that the defendant admitted that Paralee Elder was his niece, and that she called him sometimes "Dan" and sometimes "Uncle Dan," and that she called Rachel "sister." The evidence for the defendant tended to show that Rachel Elder was not the child of Jim Elder. The defendant reques...