Fincher v. State
58 Ala. 215
Ala.
1877
Check Treatment
BBICKELL, C. J.

Of the several modes of assailing the credibility of a witness, the one most usually resorted to, is a cross-examination as to his relationship to the parties, his interest in the pending suit, his hostility to the prisoner, if it be a prosecution for a criminal offense, his motives, and whatever may fairly be presumed to bias him in favor of the party at whose instance he is testifying, and against the adverse party. These are matters collateral to the main issue of facts which is to be determined; and while the general rule is, that the answers of a witness -to collateral questions cannot be contradicted by the party cross-examining, an exception obtains in reference to questions of this character, which are directed, not against his general credit, but against his credit, and capacity to testify accurately in the particular case. — 1 Whart. Law of Ev. §545; McHugh v. State, 31 Ala. 317; Bullard v. Lambert, 40 Ala. 204; 1 Green Ev. § 450; Blakey v. Blakey, 33 Ala. 611. The circumstances which affect the particular credit of the witness, are generally incapable of proof save by his acts or declarations, and it is but just that the witness should have his attention directed to them, and whatever explanation can be given of them without entering into particulars, should be received. — 4 Phill. Ev. (2 0. & H. Notes) 717. If the witness should deny the relationship or bias, it may be proved by other evidence. Declarations in the presence of third persons, indicative of hostility, may be called to the attention of the witness, and he may be required to admit or deny them ; if he deny them the persons hearing them, to whom the attention of the witness is directed, may be called to contradict him. How far the bias of the witness, from whatever cause it arises, affects his credibility, is a question for the consideration of the jury, and depends upon his manner of testifying before them, the *220consistency of bis evidence with other evidence in the cause, and the probability of its truth or falsity when considered in connection with all the facts and circumstances surrounding the parties, and which are parts of the transaction. The law does not discredit the witness because of the bias — it is simply a fact for the consideration of the jury in determining-how far they can safely rely on his testimony.' A remote relation would not usually lie under the same imputation on his credit, as a nearer relation whose sympathies and affections were more deeply involved. A hostile feeling, generated by a sudden quarrel, would not reflect the same discredit as that which is shown to be malignant. The extent of the hostility of the witness, is the subject of just inquiry. It is not enough, and the door to further cross-examination is not closed, so that it does not descend to the particulars of the controversy between the witness and the party, by the mere statement of the witness that he is hostile to the party against whom he is testifying. The party has the right to go further, and show that the hostility is malignant and that the witness has the inclination, and would not scruple at the means or manner of doing him the most grievous injury. We hold, therefore, the City Court erred in refusing to permit the question propounded the witness to be answered.

2. Mrs. Spencer was not an incompetent witness; nor was there any objection to her testifying to facts which repelled all suspicion of her husband’s’ guilt of the murder, with which ,he had at one time been charged. Husband or wife are not parties to the record, and have no interest directly involved in the prosecution. The judgment of conviction or acquittal, could not become evidence for or against the one or the other, except so far as it would be evidence for or against other strangers to it. — 1 Green.-Ev. §§ 241-342; 1 Phill. Ev. 71-72; Powell v State, MSS.

3. The general rule in regard to the relevancy of testimony, is, that the facts and circumstances which, when proved, are incapable of affording any reasonable presumption or inference, in reference to a material fact or inquiry involved in the issue, cannot be given in evidence.— Governor v. Campbell, 17 Ala. 566; Camphell v. State, 23 Ala. 44. In practice, the application of the ^ules presents most embarrassing questions, and it is often a matter of serious difficulty to determine whether a particular fact or circumstance is not too remote to aid the jury in arriving at a conclusion upon the principal fact to be proved, and its introduction would not confuse and mislead, directing their attention from the real issue. The only tendency of the evidence sought to be elicited from Mrs. Demorest, was the contradiction of *221the witness who testified that at and before the murder, the prisoner kept his gun on a rack in his bed room, and as to the time these witnesses rose from bed on the morning of the murder. The place at which Fincher kept his gun, and the habits of the family as to rising when Mrs. Demorest lived there, have a very remote bearing, if any, on the fact of where the gun was the night preceding and the morning of the murder, and on the fact of whether the State’s witnesses, members of the family, were up at a particular hour of that morning. If her evidence had been admitted, it would have been subject to be controverted, and the jury would have been embarrassed in determining a disputed fact, which, when ascertained, would not have advanced them in the determination of the principal fact.

4. The suppression of evidence by a prisoner or prosecutor, is a material circumstance to be considered by the jury. But we cannot perceive that the principle has any application to the present case. There was no ground on which an inference could be rested that the pieces of paper, referred to in the charge requested • by. the prisoner, would have shed any light on the inquiry as to his guilt or innocence — none for supposing that they had been preserved, or were in possession of the prosecutor at the time of the trial, and were improperly withheld by him. There must be evidence in the possession of the prosecutor which he withholds, and material evidence, before a charge of this kind should be given.

For the error we have pointed out, the judgment is reversed and the cause remanded. The prisoner will remain in custody until discharged by due course of law.