The statement of the sheriff, and of the constable, when on the witness stand, that on a certain occasion, before his arrest, the defendant was “restless, nervous and excited,” if properly objected to, would have been inadmissible. — Gassenheimer v. State, 52 Ala. 313; McAdory v. State, 59 Ala. 92. But, if part of the testimony offered be legal, and the objection is to the whole in a lump, the court is not bound to separate the legal from the illegal, but may overrule the entire objection. — 3 Brick. Digest, 443, § 570. The other portions of the evidence, to which, *17as a whole, a single objection was interposed, were legal, and properly allowed; and there is nothing in these objections. 3 Brick Dig. 437, §§ 455, 458; Pollock v. Gantt, 69 Ala. 373, 378.
The sheriff was allowed to testify as a witness, “ that some of the defendant’s friends came to town, and he told them that he had a warrant for the arrest of defendant; that he sent defendant word by his friends to come in and give himself up — that the case against defendant amounted to nothing, and that he would have no trouble to get out of it; and that a day or two thereafter defendant did come in and surrender. Witness also stated, that he did not know that defendant got the message.” Defendant excepted to the admission of this evidence. The Circuit Court erred in this ruling.
There was no legal evidence that defendant had “fled to the woods,” if indeed there was any evidence that such was the case. Counsel should not be permitted to state as fact that which is damaging to defendant, and of which there is no legal proof.
Charge 2 asked by the defendant, though possibly true in some states of proof, was rightly refused in this case. It was not adapted to the testimony. There was some positive proof — that of Hilliard McDaniel — that defendant did steal the money, and the record does not tend to show that any additional, positive testimony could be obtained, or was in existence. The tendency of the charge, if given, would have been to mislead and confuse the jury. — 3 Brick. Digest, 111, §§ 73, 79.
Beversed and remanded.