79 Ala. 61 | Ala. | 1885
A witness may be impeached, not only by proving that, at other times, he has made statements contradictory of, or inconsistent with those he makes on the trial, but also by proving that, on a former occasion, and under circumstances when it was his duty to state the whole truth, he omitted in his statement facts to which he testifies on the trial. The admissibility of the impeaching evidence depends on the question, whether the former statement was made under such circumstances that the duty to tell the whole truth arose. An omission, when such duty arises, may oi-iginate a presumption that the omitted facts did not transpire, and may tend to contradict the testimony of the witness. Whether such
Neither is it necessary for the witness to positively deny the omission. If lie says he does not recollect, it is competent to prove his failure to state, on the former occasion, the facts to which he testifies on the trial. When the witness neither admits nor denies the omission, it is competent for the opposing party to prove the affirmative. He will not be permitted, under the pretense pf not remembering, to escape contradiction and impeachment.—Payne v. State, 60 Ala. 80; Ray v. Bell, 24 Ill. 444; Gregg Town. v. Jamison, 55 Penn. St. 464. The fact omitted must be material, and relevant to the matter in issue.
It was the duty of the witness Beuben Davis, who was a witness on the preliminary trial, to have then stated the whole truth; and it was permissible for the defendant to prove, by a witness who was present, that he omitted to state on the preliminary examination the declaration of the defendant, to which he testified on the trial, as having been made during the week next succeeding the burning. The time, place and person were sufficiently called to the attention of the witness to prevent surprise, and to afford an opportunity of explanation, if from forgetfulness, or because his attention was not directed to it, or from ignorance of its materiality, or other excusable cause, he omitted to state the declaration on the preliminary trial.
Beversed and remanded.
