Hemingway v. Garth

51 Ala. 530 | Ala. | 1874

BRICKELL, J.

To support the plaintiff’s action, it was necessary to give evidence of an attachment, affidavit, and bond, corresponding substantially with the averments of the complaint. The affidavit was made before a justice of the peace, and the attachment was returnable before him. The loss of the original having been proved, the plaintiff was entitled to give secondary evidence of them. Ware v. Robertson, 18 Ala. 105; Bullock v. Ogburn, 13 Ala. 346.

2, 3. In the case of Campbell v. State (23 Ala. 76), this court, after a careful examination of the authorities, arrived at the. conclusion, that it is competent for a party to inquire of his own witness whether he had not made statements contradictory of, or inconsistent with, the evidence he has given on the trial. It is not an objection to such evidence, that it has a tendency to impeach the witness. Such is the tendency of other evidence establishing the facts which the testimony of the witness may have tended to disprove, yet it is the clear legal right of the party to introduce such evidence. The question propounded to the witness by the defendant was not subject to the objection interposed, and the court erred in sustaining it. It was, however, error without injury, as the bill of exceptions discloses that the witness answered the question negatively, and his answer went to the jury. No evidence contradictory of the witness’ answer was offered.

4. The court gave the written charge requested by the appellant, not qualifying it otherwise than by the remark to the jury, that it was to be taken in connection with the general charge. When the court gives the j ury a general charge, and additional charges are given at the request of either party, it is certainly true that the general and special charges are to be considered in connection; and it is proper for the court so to state, lest the jury should be misled. No injury can result to either party by the instruction. Scott v. State, 37 Ala. 117.

The judgment is affirmed.