15 Ala. 623 | Ala. | 1849
If a party desired to impeach the credit,of a witness, by proof that he has made verbal statements, out of court, contrary to what he has testified upon the trial, -to avoid surprise, and to afford him the opportunity of explanation, he should be asked as to the time,-place, and person involved in the supposed contradiction. 1 Greenl. Ev. 415; Queen’s Case, 2 Bro. & Bingham, 313; 1 Ala. Rep. 65; 13 ib. 303. This was not done in the'case before us,- and consequently, the court erred in permitting the witness, Shaffer, to controvert what Carlisle-had sworn. . ■ '
The-subsequent instruction of the court, “that-thb jury might consider the testimony of Carlisle- for what it - Was worth, and as unaffected by Shaffer’s testimony, did not cure the error, in admitting Shaffer to testify as to the-statements of Carlisle; which conflicted with'his-evklence. ' Every one; familiar with the practice, knows how difficult it is to eradicate from the mind of a jury an injurious'impression thus created, (McCurry v. Hooper, 13 Ala. Rep. 823;) by permitting illegal proof to be submitted to- them, and in such case,'
