48 Ala. 478 | Ala. | 1872
1. The court below rightfully refused to permit the defendant to call out from the State’s witness, J. T. Smith, on cross-examination by defendant, all that was said by the witness and defendant at the time of the conversation about which the witness testified.
If said conversation had been called out by the State, the defendant would have been entitled to all that was said at the same time on the same subject; but as the witness had spoken of said conversation on defendant’s cross-examination, he could not, thereby, make all that was said evidence in his own behalf. The rule is, if the State examines a witness as to a conversation of the defendant, then the defendant may insist upon having the whole' conversation disclosed for the consideration of the jury. This is necessary, that the true meaning and import of the conversation may be rightly understood. — 1 Greenl. Ev. § 201.
2. The question put to the witness Burrel Henry was clearly leading. It suggested to the witness the answer
3. The court, we think, clearly mistook the law, in its charge as to the mode of impeaching witnesses. I know nothing in the whole law of evidence more unsatisfactory than the two ways mentioned in the charge of impeaching the credibility of witnesses. The first rests upon the mere opinion formed of the character of a witness, by those who reside in the neighborhood, and such opinion rests, not upon any well ascertained facts, but upon what uncertain rumor or prejudice may say of the impeached witness. It is, therefore, unjust both to the party and his impeached witness, altogether, to throw aside the evidence of such a witness, and to discredit him, except in so far as he may be sustained and Corroborated by the other evidence in the cause.
Justice to both requires that the whole evidence should be left to the consideration of the jury, to determine the force and credit to be given to the impeached and impeaching witnesses.
The other mode of impeaching a witness, by contradicting him as to an alleged statement, made out of court, which he denies on his examination in court, is liable to serious objection. Like the evidence of declarations, when offered against a party, it should be received with great caution. Such evidence is subject to much imperfection and mistake. The party whose declarations are sought to be contradicted, may not have clearly expressed his own meaning, or the witness called to contradict him may have misunderstood him, or by unintentionally adding or omitting a single word, the declaration proved becomes a very different declaration from the one really made by the party who is thus contradicted. "We hold the true rule, in such cases, to be, not to throw aside the evidence of a witness thus impeached, but to leave all that is said by him, and
Eor the error in the charge of the court, the judgment is reversed, and the cause is remanded for a new trial, and the defendant will remain in custody until discharged by due course of law.
