Holmes County MsArchives Court.....Overstreet, Mr 1839
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:59 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Overstreet v. The State.

pages 328-329

Hearsay evidence is not admissible in a state prosecution for fornication.

ERROR to the circuit court of Holmes county.

This was an indictment against Overstreet for living in fornication. Plea, not 
guilty. On the trial, the attorney for the state proposed, and offered to 
prove, that, it "was common report in the neighborhood, that the defendant, 
and one Sarah Hamilton, lived together in fornication," which proof was 
objected to by defendant’s counsel. Objection overruled, and opinion of the 
court excepted to.

Objections were taken to the indictment, but they are not necessary to be 
stated.

Fitch, for plaintiff in error.

1. It was error in the court below, to refuse to quash the indictment.

2. It appears, from the record, that the indictment was found under the 
direction, and signed by Robert S. G. Perkins, district attorney pro tem., and 
not by a legal district attorney.

3. The court admitted improper and illegal testimony to go to the jury, as 
stated in the bill of exceptions; wherefore, the said plaintiff in error 
prays, that said judgment for the errors aforesaid and other errors in the 
record and proceedings aforesaid, may be set aside, and reversed, &e. 

Collins, Attorney General, contra.

The record may not show that the grand jurors were good and lawful, or that 
they are freeholders or householders. For all men are presumed by law, to be 
good and lawful men, until the contrary appear. See opinion of this court, in 
the cases of Woodsides v. The State, 2 How. Rep. 655; and Byrd v. The State, 1 
How. Rep. 247; also the case of Farish v. The State, 2 Ibid. 826.

Hearsay testimony may be admitted, to prove the general character in which 
parties live together, so the party introducing it, does not undertake to 
prove any particular facts, or fact, by the hearsay testimony, but only the 
general reputation of the manner in which the parties lived. Norris’s Peak, p. 
27. If the bill of exceptions showed that the hearsay testimony was the only 
proof offered by the state, there would be some ground for a doubt on the 
subject.

Mr. Justice TROTTER delivered the opinion of the court.

The plaintiff in error was indicted in the circuit court of Holmes county, for 
the offence of fornication. On the trial, the attorney for the state offered, 
in support of the prosecution, testimony that it was the general reputation in 
the neighborhood of the defendant's residence, that the defendant and Sarah 
Hamilton did live together in a state of fornication, as charged in the 
indictment. This proof was objected to, but admitted by the court to go to the 
jury. The error assigned is, the admission of this testimony. The charge in 
the indictment is of a specific offence, and must be proved in the way that 
all other offences are established; that is, by proof in the mode pointed out 
by law. It is a general rule, that hearsay evidence is not admissible. And the 
cases which have been made exceptions to this rule, have proceeded upon the 
ground of necessity alone. This is not a case which falls within any of the 
reasons of the exceptions. And besides, in this case, the witness states the 
strongest possible reason for excludiug it, which is, that he believed the 
neighbors who had spoken of the cohabitation knew nothing about it.

Let the judgment be reversed, and a venire de novo awarded.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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