The evidence as to the fitness or unfitness of the mother to have the custody of the child is in conflict. This case is being reversed because of the admission in evidence of a letter from Green, the father of the mother, the defendant in error, in which he made this statement: "I certainly don't consider her [the mother] qualified physically, mentally, or morally fit to have full control of those precious little ones." I think that no sufficient cause has been shown for reversal. In the first place, the writer of the letter, as a witness on the stand, had testified that: "I wrote the letter, which you have exhibited to me, to Mrs. Batts. The plaintiff is my daughter. I do not consider her mind perfect. I know Mrs. J. W. Batts, the respondent, and I consider her to be better fitted morally and mentally to have the custody of the children than my daughter." While his statement in the letter went farther than his testimony quoted above, the two are, in my opinion, near enough alike to fall within the well-recognized rule that testimony illegally admitted is no ground for new trial when it appears from the record that practically the same testimony, unobjected to, from other sources was admitted. While Town of Adel v. Woodall, 122 Ga. 535 (supra), was an interlocutory-injunction case, the reason behind the rule there announced nearly forty years ago would make it applicable in the trial of a habeas corpus cases. Town of Adel v. Woodall does not stand alone, but like statements may be found in a number of other cases that are cited in the leading opinion. In both injunction cases and habeas-corpus cases, the judge himself is the trier of the facts. In both, affidavits may be used. Robertson v. Heath, 132 Ga. 310 (64 S.E. 73); Landrum v. Landrum, 159 Ga. 324 (125 S.E. 832, 38 A.L.R. 217). This is not an instance where a letter was read from an absent witness. The author of the letter was in court, called as a witness, and testified. He could have been cross-examined as to the basis of his opinion as expressed in the writing, but he was not. Matthis v. State, 33 Ga. 24 (supra), and Carlisle v. Callahan, 78 Ga. 320 (supra), were cases which were being tried before a jury, and whether correctly decided or not, this is not, in my opinion, the occasion to review and overrule them. In any event, before a reversal could be had, it should be manifest that the error, if any, in this class of cases controlled the judgment of the court. Gaulding v. Gaulding, 184 Ga. 689 (supra). In the case last cited, the doctrine announced in Town of Adel v. Woodall, supra, was applied to applications for temporary alimony. I think that, under the facts of this record, the judgment should be affirmed.
No. 15105. MARCH 7, 1945.