-The defendant was convicted under an indictment which charged that he, a negro or a descendant of a negro, did intermarry or live in adultery or fornication with a white woman, and was sentenced to the penitentiary for an indeterminate number of years.

[1, 2] The defendant demanded a severance and was tried alone. There were only two witnesses for the state, and an examination of their testimony shows that they had no first-hand knowledge as to who the parents and grandparents of the defendant were, and whether Caucasian, Indian, Spanish, African, or mixecl blood. The best that can be said of their testimony is, from the state’s viewpoint, that one of them did state that the defendant was a mulatto or of negro blood, and that he drew this conclusion from the defendant’s color. The defendant’s testimony tended to show that he was of Indian or Spanish descent, and that, while he was of dark color, he had no negro blood in him.

One of the state witnesses after the trial made an affidavit that he was mistaken in a part of thif testimony he had given against the defendant, and this affidavit was incorporated in his motion for a new trial. While we cannot review the action of the trial court in overruling the motion for a new trial, it not appearing what, if any, evidence was offered in support thereof, yet the general affirmative charge was refused to the. defendant, and we are led to the conclusion, after a careful consideration of all the evidence, that it should have been given. As stated above, the testi<ínon y of the state witnesses was almost wholly hearsay, and they did not bring themselves within the rule that admits the introduction of hearsay testimony of this character. While hearsay evidence is admissible to prove pedigree, it seems to be the settled -rule in this state that the hearsay Watements are limited to declarations made by a deceased relative or member of the family. Elder v. State, 123 Ala. 35, 26 South. 213; Rogers v. De Bardelaben, 97 Ala. 154, 12 South. 81.

[3] There is another significant fact in the record in this case, which is strongly persuasive to us that the state failed to make out a case against the defendant, and that the affirmative charge should have been given for the defendant. In the judgment entry this statement appears:

“Before passing sentence, the court proceeded to ascertain that the defendant is of Indian and Spanish origin.”

While this is in no wise evidence in the case, yet one cannot help asking how the trial judge made this ascertainment, when the verdict of the jury must of necessity have been arrived at upon an ascertainment that the defendant was of African origin.

For the error pointed out, the judgment of conviction is reversed, and the cause remanded.

Reversed and remanded. '