
    Green v. The State.
    
      Indictment for Murder.
    
    1. Question assuming truth of controverted fact, or staling it as a matter of notoriety. — On a trial for murder, whether or not the deceased was hilled, and if so at what place, being-controverted facts, a question to a witness for the State as to whether he knew the place where the deceased “was said to have been killed,” was objectionable, in assuming that the deceased was killed ,and in stating the killing as a matter of notoriety; the question not being merely introductory to testimony by the witness as to other facts competent to be proved.
    2. Murder; evidence of the disposition of the body of the deceased. — On a trial for murder, evidence that a witness, during a search for the body of the deceased, found a place where some one had been buried, and in digging down found traces of blood, and clothing worn by the deceased on the day of her disappearance, is not irrelevant.
    3. Corroborating witness try pro f ’that he made same statement before trial; when error in admitting illegal evidence not cured by its withdrawal. The State should not be permitted to corroborate one of its own witnesses by introducing other witnesses to prove that he had made the same statement to them to which he deposed, or that he had pointed out to such other witnesses a spot in, regard to which he had testified ; and if such evidence is admitted against the objection of the defendant, the error is not cured by its subsequent exclusion, when the court, in instructing the jury not to regard this evidence, accompanied the instruction with the remark that it regarded the evidence as legal. .
    Appeal from tbe Circuit Court of Sumter.
    Tried before tbe Hon. S. H. Sprott.
    Tbe defendant was tried upon issue joined on tbe plea of not guilty.
    Evidence introduced by tbe State tended to sbow tbat tbe defendant and the deceased quarrelled while on tbe road to Livingston, near tbe five-mile post, and tbat tbe defendant killed tbe deceased in a ravine near tbat place. There was also evidence tending to show tbat tbe defendant first buried tbe deceased in tbe Cockrell field, and afterwads, with tbe assistance of bis brother, tbe witness Henry Green, took up the body, carried it to another place, and re-buried it.
    Tbe solicitor asked Barney McNeil, a son of tbe deceased, and a witness for tbe State, tbe following question: “During tbe search for tbe body of Harriet Marr, did you find a place in tbe Cockrell field where some person bad been buried, and if so what evidence of a burial of such person?” To this question tbe defendant objected, on tbe ground tbat tbe answer sought to be elicited was irrelevant. Tbe court overruled tbe objection, and tbe defendant excepted. In answer to tbe question tbe witness stated tbat be saw signs of fresh earth having been dug up, and tbat in digging down into tbe earth be found blood and maggots, and also an underskirt which belonged to bis mother, Harriet Marr, and bad been worn by her on tbe morning tbat she left borne. Tbe defendant moved to exclude tbe answer, on tbe ground tbat it was irrelevant, and excepted to tbe action of tbe court in overruling this motion.
    Tbe statements by tbe witnesses Henry Green and Mr. Steve Smith; which are discussed in tbe opinion, were excluded at the request of tbe solicitor, after they bad been admitted against the defendant’s objections.
    Smith, YaNdegraae & Tbavis, for tbe appellant.
    "Win. L. MaetiN, Attorney-General, for tbe State.
   COLEMAN, J.

Tbe defendant was convicted of tbe murder of Harriet Marr and sentenced to be bung. Tbe case is brought here for review of tbe ruling of the trial court upon tbe admission of certain testimony, Tbe witness Armistead Gray was asked, “Do $ou know tbe place where Harriet Marr was said to have been killed?” Tbe witness answered be did. Both tbe question and answer were objected to. Prima fane, it may-be both tbe question and answer were objectionable. It is permissible, in fact, unavoidable, sometimes to propound a question, prima facie objectionable, when it is merely-introductory to other questions, necessary to elicit facts which are legal evidence. Whenever it is subsequently shown that the apparent illegal evidence is a connecting part *of, or explanatory of, legal evidence and was only used as necessarily introductory thereto, an objection to it can not be sustained. But unless its admission is justified by Subsequent testimony, or is afterwards excluded from the jury by the court, it is reversible error. The only other question propounded to this witness contains the same objectionable expression, “Where did Tillman Autrey live at the time Harriet Marr is said to have been hilled ?” Both these questions and answers were calculated to impress the jury with the impression as a fact proven that Harriet Marr was killed, and at a certain place. It was necessary for the State to prove by legal evidence that Harriet Marr was killed. If it had been conceded by the defendant that Harriet Marr was killed, and at the certain place referred to, perhaps it would have been permissible to have pursued this short way to get at other facts, to be thereafter inquired about. It was an easy matter to have framed proper questions to this witness in order to elicit the only facts for which it seems from the record he was introduced. There was evidence tending to show that the homicide had been committed near a designated mile post. Do you know where the five-mile post is on the Livingston and Gainesville road? Do you know where Tillman Autrey lives? How far is it from one .to the other? Similar questions would have elicited facts to which the witness, if he knew, could testify. Who said she was killed there? General notoriety is sometimes admissible to prove notice of an existing fact, but very rarely to prove the fact itself. It is the safer practice to observe well recognized rules, and especially in cases of such grave importance.

The objection to the testimony of Barney McNeal was properly overruled.

The witness Henry Green having testified, among other thing's, to the removal of the body from the grave, was asked by the solicitor, if he had shown the place to any one and to whom. The witness replied- that he had shown the place to the sheriff and to Mr. Steve Smith. Both question and answer were objected to. Mr. Steve Smith was then put upon tbe stand, and, against tbe objection of tbe defendant, testified that tbe witness Henry Green bad shown him tbe place. This is tbe full extent of tbe testimony of Mr. Steve Smith. If Mr. Smith bad been examined as to facts, that be saw a place which indicated that some one bad been buried there, or exhumed, or marks of a struggle, or any signs or evidence tending to show a murder bad been committed, this would have been legal evidence, and it was entirely competent for him to have stated that tbe witness Green bad pointed out to him tbe spot where these indications were to be seen. It served to identify tbe spot as tbe same one testified to by tbe witness Green. Tbe statement that tbe witness Green bad shown it to him then would not be evidence for any purpose other than to identify it, as being tbe same place in regard to which be bad testified. So far as tbe facts testified to by tbe witness Smith agreed with Green, the latter would be corroborated. But a witness can not corroborate himself by introducing other witnesses to prove that be made tbe same statement to them to which be deposed, or that be showed other witnesses a spot in regard to which be bad testified. It is insisted that this error was cured by tbe court by excluding afterwards from tbe jury tbe testimony of tbe witnesses Green and Smith in this respect. It has been held often in this State that testimony improperly admitted in tbe first instance, and afterwards excluded by tbe court, with instructions to tbe jury not to regard it, tbe error was remedied, and tbe objection unavailable on appeal. — Jackson v. State, 94 Ala. 85; Oldlds v. State, 55 Ala. 80; Jordon v. The State, 79 Ala. 12. This court regards with caution tbe practice of admitting illegal evidence and afterwards excluding it. It has frequently declared that tbe practice can not be encouraged, and when tbe record shows that anything was wrongfully said or done in tbe presence of tbe jury by tbe court, calculated to produce an impression upon the minds of tbe jury to tbe prejudice of tbe defendant, this court will reverse tbe case. Although tbe court instructed tbe jury not to regard this evidence, it was accompanied with the statement that the court regarded the evidence as legal. — • Griffin v. State, 90 Ala. 601. It is a difficult matter to entirely remove impressions once made upon tbe jury by tbe introduction of illegal evidence, and we can not say it has been done, when the jury are told by tbe court, in effect, that notwithstanding its exclusion, the court is still of tbe opinion that tbe evidence is legal. For tbe errors mentioned, tbe case must be reversed and remanded.

Eeversed and remanded.  