
    No. 3211.
    State v. Mims,
    April Term, 1893.
    July 24, 1893.
   The opinion of this court, which fully states the case, was delivered by

Mr. Justice Pope.

The appellant, alone, was tried for the crime of adultery, alleged to have been committed by himself and “Lula Hunting.” The only testimony offered at the trial was some admissions made by one “Lula Huntington” in the absence of appellant. There was no testimony that Lula Hunting was identical with Lula Huntington. The Circuit Judge admitted, -against objection, the admissions or confessions of Lula Huntington to go to the jury, and charged the jury that, if they found as matter of fact that the person spoken of by the witness ns Lula Huntington was the same person whose name was sent out in the indictment as Lula Hunting, it would be sufficient on that point. On a verdict of guilty being rendered, defendant moved for a new trial, which was refused. An appeal involving the questions as to the admissibility of the testimony and the charge of the judge is here presented.

Clearly, the Circuit Judge was in error in admitting this testimony. See section 46, 2 G-reenl. Ev. His error is equally manifest in his charge to the jury. In the absence of all testimony as to a fact, how can a jury be entitled to conclude that Hunting is the same person as Huntington ? It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the cause remanded to that court for a new trial.

Judgment of the Circuit Court (Hudson, J.), reversed.  