# Thornhill v. State

> Alabama Court of Appeals · May 30, 1916 · 14 Ala. App. 647

URL: https://www.frixlaw.com/law-library/cases/6523016

## Case

- **Full name:** Thornhill v. State
- **Court:** Alabama Court of Appeals
- **Decided:** May 30, 1916
- **Citations:** 14 Ala. App. 647; 72 So. 297; 1916 Ala. App. LEXIS 82
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Brown
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6523016

## Opinion text

ON REHEARING.
(3, 4) In disposing of this case on original consideration, in view-Of the statement in the bill of exceptions that it contained all the evidence offered on the trial, it was treated as though it *651 set out all the testimony. It is now called to our attention that this assumption should not prevail, in vieyy of the fact that the bill of exceptions, after setting out the testimony of the witness John Gray, who was the first witness examined in behalf of the state, shows that Sam Day was examined as a witness in behalf of the state, “who testified in substance the same as the above witness John Gray, except when Gray was gone after the warrant he saw Bert Richardson put his hand upon the dresser the battery was on, and appeared to be doing something.” The bill of exceptions further shows that all the testimony of the state’s witness Shores is not set out. The sufficiency of the predicate to authorize proof of the defendant’s general reputation as a gambler, in so far as it pertained to the character and location of the building, was a preliminary question to be determined by the trial court, and, in the absence of a showing that the bill sets out all the evidence, it will be assumed that the predicate was sufficient. —Pope v. State, 183 Ala. 61 , 63 South. 71 ; Harwell v. State, 12 Ala. App. 269 , 68 South. 500 ; Whatley v. State, 144 Ala. 75 . And the fact that the bill of exceptions concludes with the statement that all the evidence is set out is not controlling when, as in this case, the bill shows on its face that all the evidence is not set out. —Southern Ry. Co. v. Kendall & Co., infra, 69 South. 328 , and authorities there cited.
(5-7) The witness Shores, touching his competency to testify to the defendant’s general reputation as a gambler, testified as follows:
“Q. Since you have been in the city, have you known Bob Thornhill, the defendant? A. Yes, sir. Q. Do you know his general reputation? A. Yes, sir. Q. What is his general reputation as a gambler?”
The defendant objected to this question on the ground that the proper predicate had not been laid. The Attorney General concedes that this objection goes to the qualification of the witness to testify as to the general reputation of the accused as to being a gambler. The accused, when this testimony was offered, had not testified as a witness in his behalf, nor had he in any way put his character in issue; therefore the only evidence as to the reputation permissible for the state to offer was his general reputation as a gambler.—Acts 1909, p. 186, § 5; Underhill, Criminal Evidence, § 77; Balkum v. State, 115 Ala. 117 , 22 South. 532 , 67 Am. St. Rep. 19 ; Mitchell v. State, infra, 70 South. 991 . *652 It is a familiar rule that a witness, to be competent, must have knowledge of the fact to which he deposes; in other words, before the witness can testify as to the general reputation of the defendant in the respect here in issue, it must be shown that he knows the general reputation of the defendant with respect to the trait involved. —Williams v. City of Talladega, 164 Ala. 633 , 51 South. 330 ; Elam v. State, 25 Ala. 53 . Knowledge of the general reputation of the defendant in the community necessarily embraces his general reputation with respect to being or not being a gambler, and when he qualified as to the general reputation the predicate was sufficient.—40 Cyc. 2198; Tatom v. State, 63 Ala. 147 ; Elam v. State, 25 Ala. 53 ; Dave v. State, 22 Ala. 23 ; Kelly v. State, 61 Ala. 19 ; Hadley v. State, 55 Ala. 31 ; Jones v. State, 104 Ala. 30 .
The result is that the rehearing must be granted, and the judgment of the trial court affirmed.
Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6523016. Public record. Not legal advice.