
    James Thomas v. State.
    
      (Knoxville.
    
    September Term, 1908.)
    1. EVIDENCE. Statements made the day after the difficulty constitute no part of the res gestae, and are inadmissible.
    Where, in a prosecution for homicide, the theory of the defense is self-defense, testimony that the decedent said, the day after the difficulty, that he struck at the accused with a knife two or three times, hut did not know whether he cut him, constituted no part of the res gestae, and was incompetent and inadmissible. (Post, pp. 84, 85.)
    2. SAME. Admission of incompetent evidence justifies the admission of similar incompetent evidence in rebuttal thereof.
    A party who has, over the objection of his adversary, given to the jury clearly incompetent testimony, will not be allowed to avail himself, as a ground for new trial, or for reversal in the appellate court, of the fact that his adversary used, in rebuttal, neutralizing testimony equally incompetent, but directed to the same point. Thus, where the accused introduced incompetent statements of the deceased that he had attempted to cut the accused, he cannot object on appeal that equally incompetent testimony was admitted in rebuttal thereof. (Post, pp. 85-87.)
    Case cited and approved: Morgan v. State, 88 Ala., 223; Railroad v. Ladd, 92 Ala., 287; Perkins v. Hayward, 124 Ind., 44'9; Sherwood v. Titman, 55 Pa., 77; Fuller v. Valiquette, 70 Vt., 502.
    FROM MONROE.
    Appeal in error from the Circuit Court of Monroe County. — George L. Burke, Judge.
    
      McCeoskey & Peace, for Thomas.
    Attobney-G-eneeal Cates and Young & Young, for State.
   Mb. Chief J ostice Beabd

delivered the opinion of the Court.

Plaintiff in error was convicted of a felonious assault with intent to commit voluntary manslaughter upon the person of one Payette Stewart. While the plaintiff in error did not testify, yet the theory of his defense was that Stewart was the aggressor, and in using the knife, which the plaintiff in error did, he was acting under a reasonable apprehension of death, or great bodily harm, by reason of the fact that he was then being assaulted with a knife in the hands of Stewart. No evidence was introduced tending to support this theory, save as found in the testimony of witnesses of the plaintiff in error to the effect that the day after the difficulty they heard Stewart say that he did not know whether he cut Thomas, but he struck at him two or three times.

This testimony went to the jury over the objection of the State.

Stewart being dead at the time of the trial, in rebuttal the State was permitted to show by witnesses that Stewart had stated to them, or in their presence, at a time subsequent to the date of the statement attributed to him by the witnesses of the plaintiff in error, that he had no knife at the time he was stabbed by Thomas, and that Re made no effort to use a knife in this difficulty. The admission of this testimony oyer the objection of the plaintiff in error is assigned as a ground for the reversal of the judgment pronounced by the trial court in this case.

It is not seriously claimed by the counsel for the plaintiff in error that the statement attributed to Stewart as having been made after the difficulty, constituting no part of the res gestae and offered in evidence by the plaintiff in error, was competent as.against the State; nor could a contention that such testimony was competent be maintained. The question, then, is, having opened the door for such incompetent evidence, will the plaintiff in error be heard in this court to urge a reversal upon the ground that other incompetent evidence directed to the same point was introduced by the ■ State in rebuttal?

It would seem, as a matter of sound reason, that a party who hás, over the objection of his adversary, given to the jury clearly incompetent testimony, should not be allowed to avail himself, as a ground for a new trial, and a fortiori for reversal in an appellate court, of the fact that his adversary had used in rebuttal neutralizing testimony equally incompetent, but directed to the same point. In such a case certainly the party who is unsuccessful, notwithstanding the error of which he was first guilty, should not be allowed to obtain relief, especially in a court of review, because the other party had followed a bad precedent which he himself had set, whether this was done with or without objection. The insistence of the State that this cannot be done is well supported by authority. Upon examination, we find that Mr. Wigmore, in his valuable work on Evidence (volume 1, section 15), discussing the question here presented, with his usual ability and learning, embodies the principle above suggested in the second of three rules prevailing in different jurisdictions. Under this rule the admission “of an inadmissible fact” justifies “the opponent in resorting to similar inadmissible evidence.” This rule rests upon the idea of estoppel; that is, having himself first introduced incompetent testimony, he should be estopped to object to similar testimony offered by the other side directed to the same point, as long as his own incompetent testimony remains in the record. This has been the holding of many English cases, and this rule is said by Mr. Wig-more to be noAV regarded as the “orthodox English rule.” In a qualified form, the principle embodied therein has met the qualified approval of -the author in Elliott on Evidence, as will he seen by referring to volume 2, section 889, and it is supported by many American cases. In Morgan v. State, 88 Ala., 223, 6 South., 761, it is held that “the party first in fault cannot take any advantage of the ruling of the court in favor of the other”; and in Mobile & B. R. Co. v. Ladd, 92 Ala., 287, 9 South., 169, it is said: “It is never erroneous to receive irrelevant evidence to rebut evidence of a like kind offered by the other party. Perkins v. Hayward, 124 Ind., 449, 24 N. E., 1033; Sherwood v. Titman, 55 Pa., 77, and Fuller v. Valiquette, 70 Vt., 502, 41 Atl., 579, all agree that, if a party opens the door for the admission of incompetent evidence, he is in no plight to complain that his adversary followed throngh the door thus opened; and this, although no objection was made in the first instance to the- admission of such evidence.

We hold,', therefore, that the trial judge committed no error in the matter now complained of; and, the verdict of the jury being amply warranted by the weight of the testimony, the judgment of the court below is affirmed.  