(75 South. 282)

(4 Div. 489.)

#### LEE v. STATE.

(Court of Appeals Of Alabama.

April 17, 1917.)

1. Homicide <&wkey;193 — Evidence—Admissibility.

Where defendant had not shown that a pistol found near deceased was ever in the latter’s possession, it was not error to exclude testimony that deceased had on the day of the homicide borrowed a pistol from witness.

[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 416.]

2. Criminal Law <&wkey;1170(3) — Appeal—Harmless Error.

But error, if any, in such exclusion was cured by subsequent admission of the testimony after the defendant had testified that deceased took the pistol from his hip pocket.

[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3147.]

3. Homicide <&wkey;338(5) — Appeal—Evidence-Admissibility — Cure oe Error.

Error, if any, in admitting letter imputing unchastity to defendant’s wife, alleged not to have been sufficiently identified, was cured where defendant was convicted of manslaughter, and the letter, if believed, would have authorized conviction of murder.

[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 713.]

4. Criminal Law <&wkey;1120(3) — Appeal — Scope.

Rulings of the court rejecting testimony cannot be reviewed when the object or the purpose of the testimony is not set out or the expected answer does not appear.

[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931, 2932.]

5. Homicide <&wkey;181 — Evidence—Admissibility.

In absence of evidence of self-defense, defendant’s wife could not testify to former illicit acts between herself and deceased.

[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 383-385.]

6. Criminal Law <&wkey;419, 420(10) — Evidence —Admissibility—Hearsay.

It was not error to exclude testimony of a witness that deceased told him he was at defendant’s house, that being hearsay.

[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980-983.]

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Ammie Lee was convicted of manslaughter, and lie appeals.

Affirmed.

The defendant was indicted and tried in the court below upon a charge of murder in the first degree, and was convicted of manslaughter, and from the judgment of conviction he appeals. Upon the trial there were certain exceptions reserved to the rulings of the court on the evidence. The facts sufficient to a decision on these questions appear in the opinion.

W. O. Mulkey, of Geneva, and N. H. Mix-son, of Samson, for appellant. W. L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State,

SAMFORD, J.

[1,2] The defendant sought to prove by one Tom Farmer that a pistol found near the body of the deceased was the property of the witness, and that the witness had let the deceased have it the morning before the killing took place that night. The court sustained the state’s objection to this testimony, and the defendant excepted. At the time this testimony was offered there was no testimony tending to show that the pistol had ever been in the possession of the deceased, or that the deceased had ever attempted to use the pistol, or that the defendant killed deceased in self-defense. The testimony was therefore irrelevant. After the defendant had testified that just before he fired deceased reached for his pistol, which was in his hip pocket, and that this was the pistol, the witness Farmer was recalled and testified as to the ownership of the pistol and what he knew of the possession. The court did not commit error in the first instance, but if it did, such error was cured by the subsequent admission of testimony. Kirby v. State, 151 Ala. 66, 44 South. 38; Untreinor v. State, 146 Ala. 26, 41 South. 285.

[3] The next assignment of error contends that the court committed error in permitting the state to introduce a letter addressed to the defendant, which letter is in the following words: “If you will pretend that you have gone from home for a day and watch, you will see things that will open your eyes.” The main objection to this letter’s introduction is that it is not sufficiently identified. Several witnesses testified about it, and when it was offered the defendant objected. The court asked the question: “From whom was the letter obtained?” The solicitor answered: “Mr. Lee gave it to Mr. Davis.” With what had already been testified to, we think this sufficiently identifies the letter; and besides, the verdict of the jury cured any possible injury that might have been claimed on account of the letter. The letter could only have been used as tending to convict the defendant of one of the degrees of murder; and by his own testimony he was guilty of manslaughter, unless he was justified upon his plea of self-defense. “That portion of the alleged errors of the trial court which relates * * * to or affects solely that ground of the defense that was based on the theory that the killing was done under a sudden heat of passion was, if-error, error without injury.” Rigell v. State, 8 Ala. App. 46, 62 South. 977.

[4] The above also .applies to that part of the testimony with regard to the defendant’s pretended visit to Pensacola; and besides, it does not appear what evidence was excluded. Rulings of the court rejecting testimony cannot be reviewed when the object or the purpose of the testimony is not set out or the expected answer does not appear. Poe v. State, 155 Ala. 31, 46 South. 521.

[5, 6] The defendant offered to prove by his wife certain facts which he contended tended to show previous illicit relations between *54witness and deceased, which the court' refused to permit. This was not error, as at that time tiñere was no evidence tending to show self-defense. McWilliams v. State, 178 Ala. 68, 60 South. 101. After the defendant had testified to facts tending to show self-defense, the defendant offered to show statements prior to the killing to the effect that Ward had told Stickey that he (Ward) had been at the defendant’s house since 11 o’clock, and could not get out on account of people going to church, and that he was going back. The court refused to permit this evidence, and the defendant excepted. This was not error, the testimony being hearsay. Kirby v. State, 89 Ala. 63, 8 South. 110; Sanford v. State, 143 Ala. 78, 39 South. 370.

There is no error in the record, and the judgment is affirmed.

Affirmed.