¶1UPON REHEARING.
¶2As a general rule a witness cannot corroborate himself or fortify his testimony by proving his declaration and acts. — Childs v. State, 55 Ala. 25; Nichols v. Stewart, 20 Ala. 358; James v. State, 115 Ala. 83, 22 South. 565; Jones on Evidence, 869, 870. The fact that Amos Montgomery testified that he sent for the cotton seed Tuesday morning was but permitting him to narrate a fact of his own production and which tended to corroborate his previous statement that defendant told him to send for the seed Tuesday morning. This statement and action of the witness may have had considerable weight with the jury in determining whether or not defendant told said witness to send for the seed. If the fact was a fabrication, the witness could have easily sent or pretended to send for the seed for the purpose of corroborating himself and giving weight to his statement that defendant told him to send for the seed. The evidence did not come within the exception to the rule. — 1 Green-leaf on Elvidence, 469. The trial court erred in not excluding the statement of Amos Montgomery that he sent for the seed and did not get them. Indeed, the evidence of the other Montgomery as to going for the seed was excluded, and the court should have excluded this also.
¶3We are not able to say that this error comes within the curative influence of section 6264 of the Code of *441907, so as to enable us to affirm this case. This statute was construed in the case of Dennis v. State. 118 Ala. 72, 23 South. 1002. It was there held that, in order to affirm, the court must be satisfied that the verdict of the jury would not have been different if the charge had been given. We would therefore have to be sátisfied that the verdict of the jury in this case would have been different had this evidence been excluded. It is true this case was tried with care, and this is the only reversible error that we have been able to find and which may prima facie appear of little importance; yet this was a case of circumstantial evidence. There was a sharp conflict between the defendant and Amos Montgomery as to whether or not defendant told Montgomery to send for the cotton seed Tuesday, and the fact that Amos sent, if he did so, or said that he sent tended to corroborate him and we cannot affirmative]y hold, that the verdict of the jury would have been the same whether they did or did not believe that defendant told Montgomery to send for the seed, or that they were not influenced by this incompetent evidence to the extent of believing that the defendant did tell Montgomery to send for the seed.
¶4The rehearing is granted, and the cause is reversed and remanded.