Bullard v. Lambert

40 Ala. 204 | Ala. | 1866

A. J. WALKER, C. J.

Twenty-four several objections were made by the appellants to the deposition of James Cooper, and nine to the deposition of Nancy Cooper. Each one of these thirty-three objections alleged a failure to answer some cross-interrogatory, and was presented as a reason for the suppression of the deposition, before the commencement of the trial. I décide that there was no reversible error in the overruling of each one of these many objections. It would avail no useful purpose to give with particularity the reasons for my decision in reference to each objection; and in doing so, I should make this an extremely voluminous opinion. I shall, therefore, content myself with stating, in a general way, the reasons which a careful examination of the separate objections has brought to my view, for sustaining the court below in its rulings.

1-2. Some of the objections are not well taken in point of fact. Some of them, if true to any extent, are not true to the extent alleged; and it was not incumbent on the court to ascertain whether they were true in part.-Wood v. Barker, 37 Ala. 60; Webb v. Kelly, 37 Ala. 333; Sterrett v. Barker, 37 Ala. 366; Murphy v. State, 37 Ala. 42. Some of the questions, said not to be answered, are not noticed in the appropriate place, but matter is found elsewhere in the deposition which responds to them; and this is sufficient to meet the objection.— Harris v. Miller, 30 Ala. 221; Spence v. Mitchell, 9 Ala. 744. Several of the answers, to which objections are made, are not so full as to defy extreme criticism, and are yet capable of standing the test of the doctrine announced in Buckley v. Cunningham, (34 Ala. 69,) in the following words : “ The answers to the cross-interrogatories are certainly not chargeable with redundancy; but, upon a careful examination of them, it appears that all the questions receive,a substantial answer; and as we can discover nothing which would justify us in concluding that the witness was seeking to evade the disclosure of facts within his knowledge, we think that the court committed no error in refusing to suppress his deposition. — Spence v. Mitchell, 9 Ala. 744; Nelson v. Iverson, 24 Ala. 9”. A deposition should not be suppressed, when the question was not pertinent to the issue; nor when the answer could not have affected the result.— Gibson v. Goldthwaite, 7 Ala. 281; Yarborough v. Moss, 13 Ala. 176. Influenced by these several reasons and principles in reference to the imputed failures to answer, I approve the rulings of the court upon the motions to suppress the depositions.

3. The court excluded the evidence of the witness Kennedy, as to “the impression made on him” by certain words of the defendant. These words are not alleged in the complaint, and could have been admissible only in aggravation of damages. The principle upon which it is permissible to prove the sense in which words were understood, and the class of cases in.which such evidence is admissible, are set forth in Robinson v. Drummond, 24 Ala. 174. The evidence here was not proper for the consideration of the jury, upon the authority of that case. It was more objectionable than the evidence rejected in Smith v. Gafford, 33 Ala. 168. See, also, Kirksey v. Fike, 29 Ala. 206. There is no reason why the “impression made on” a witness by a party’s declaration should not be regarded in the same light in this case, as in cases generally. There was no error in the exclusion of the evidence.

The complaint charged the speaking of words imputing acts of lewdness generally to the plaintiff. The defendant pleaded justification; and the testimony of James Cooper and Nancy Cooper, which was objected to, tended to sustain the plea, and was therefore relevant, and properly admitted.

4. Two witnesses Works, and Bailey, examined by the defendant, answered to tbe direct interrogatories that they were acquainted with the character of Lecroy, plaintiffs’ witness, and that they would not credit his testimony. On cross-examination, they made admissions which tended strongly to show, that they did not understand what was meant by character, and did not speak of his character in reference to his repute among his acquaintances. This presented the common case of an assault in the cross-examination upon testimony drawn out upon the direct examination. The court very properly refused to exclude the evidence, and thus left its weight to the consideration of the jury.

The evidence of Richard Glover was admissible upon the same ground with that of James and Nancy Cooper, as above decided.

5. The altercation between Mr. and Mrs. Bullard, in which there was a statement of the character of her conversation when she was informed of something said by her mother-in-law concerning herself and Mr. Spigner, was properly permitted to go to the jury. Looking to the other evidence, I find there was ground for argument that her mother-in-law had been speaking of lewd conduct, to which the defendant’s testimony under the plea of justification pointed. Her conduct and conversation’, when informed of what was thus said upon that subject, was proper matter to be considered by the jury, in determining whether she was guilty. They might well inquire, in the light of such evidence, whether her conduct and conversation were such as would characterize a chaste and modest woman, conscious of innocence, and pained by an injury in the tenderest point.

6. There was no error in refusing to exclude the fragment of a sentence in the testimony of Allen, as the court was requested to do by the appellants. The exclusion would have materially changed the import and effect of what the witness did say. It would have left to the jury as evidence an unqualified statement, when in fact the witness only made the statement with an exception.

7. One of the plaintiffs’ witnesses, Richards, was asked on cross-examination, whether he did not, to a named individual, and at a specfied time and place, make a declaration conducing to show hostility to the defendant in this particular case, and a wish to contribute to a result adverse to the defendant; not on account of any regard for the plaintiff, but on account of hostility to the defendant, and a desire to drive him out of the country. The witness having denied the making of such declarations, the plaintiff introduced evidence contradicting him. The question and the contradiction here affected the credit of the witness in the particular case in which he was examined. An established distiction exists ■ between inquiries on cross-examination about irrelevant matters, which affect the general credit of the witness, and those which affect his credit in the particular case. The distinction is so well drawn in the decisions of this court, that I need not refer to other authorities. A party may sometimes ask on cross-examination as to declarations about irrelevant matters affecting the general credibility of a witness, but he must abide by the answer. He can not contradict the witness. — Seale v. Chambliss, 35 Ala. 19; Rosenbaum v. State, 33 Ala. 354; Blakey v. Blakey, 33 Ala. 611; Ortez v. Jewett, 23 Ala. 662. On the other hand, where a witness is questioned as to declarations affecting his credit in the case in which he is examined — ■ affecting his particular credit — his answers may be contradicted. — Lewis v. State, 35 Ala. 380; McHugh v. State, 31 Ala. 317. The question in hand, and the contradiction of it, affected the credibility of the witness in the particular case, as contradistinguished from his general credit. The court therefore committed no error in allowing the question to Eichards or the contradiction of his answer.

There are many other questions of evidence presented by the bill of exceptions. I have examined them all, one by one, and find no error in the ruling of the court on any of them. I do not perceive any beneficial result which can be produced by writing the arguments influencing me in reference to each one of them, and I see no mode of grouping them, and deciding them upon only general principles. The volume of this opinion would be greatly enlarged without profit to any person, and it would present no principle of law new or difficult. I shall therefore conclude by announcing that I have found no reversible error in any of the rulings of the court. My brother judges are both incompetent to sit in the case, because they were both of counsel. The parties have consented that my judgment shall be the judgment of the entire court. Nevertheless, this opinion is the opinion of myself alone.

Affirmed.