As I understand, this case is reversed upon the sole ground that the trial court declined to admit the evidence of a certain witness as to the character of one of the state's witnesses. At least five other witnesses testified to the bad character of said witness, and the state had made no effort to contradict them or to show the good character of the witness *Page 98 It has been held in numerous cases that the exclusion of evidence merely cumulative of a fact that has been established by other uncontradicted evidence is error without injury. Forst v. Leonard, 116 Ala. 82, 22 So. 481; Johnson v. Birmingham Ry., L. P. Co., 149 Ala. 529, 43 So. 33; Powers v. Hatter,152 Ala. 636, 44 So. 859, and many other cases cited in 2 Alabama and Southern Dig. Appeal and Error, 1057, page 456. And this rule has been applied in criminal as well as civil cases, and where the rejected evidence related to character. Maxwell v. State, 129 Ala. 48, 29 So. 981.
The case of Allen v. State, 146 Ala. 61, 41 So. 624, and perhaps others, seem to be in conflict with the foregoing, but these cases were decided before the adoption of rule 45, and if this is not a fit case for the application of this rule, I can conceive of none. I think the case should be affirmed, and dissent.
GARDNER, J., concurs in the foregoing.