31 Ala. 317 | Ala. | 1858
— In considering the various modes by which the credit of a witness may be assailed, courts must observe the distinction between an attack upon his general credit, and an attack upon his credit in the particular case. Particular facts cannot be given in evidence to impeach his general credit only, but may be to affect his particular credit — that is, his credit in the particular cause.
It is clear that the language of the statement is not the language of the deceased; and that the declarations contained in it are not his declarations, unless made so by his mere “nodding his head.” " If there was anything to convince us that he perfectly understood the language employed in the statement, or that he was at the time able to have detected any erroneous inference as to his real meaning, which his friends might have expressed in the answers given by them and embodied in the statement,— we should regard the assent given by nodding his head as sufficient. But we see nothing which satisfies us that he either perfectly understood the language, or was able to have detected the erroneous inference as to his meaning, which his friends may have honestly drawn in making the answers set forth in the statement. He was just in that condition, in which for the sake of peace, orto be rid of the importunity or annoyance of those around him, the probability is, he would assent to, or seem to say, whatever they might choose to suggest. Such an assent, obtained under such, circumstances, by the friends on -whom he relied, — not merely to a translation of language he himself had uttered to express his meaning, but to their inferences as to his meaning, couched in their own language, or in the language of the attorney who took down the statement, — cannot safely or legally be held sufficient to give to the statement thus assented to the force and effect of dying declarations, in a cause involving the life or liberty of a human being. — 1 Greenl. on Ev. §§ 156, et seq.; see, also, authorities cited for the prisoner.
Eor the errors above pointed out, the judgment of the court below is reversed, and the cause remanded; the prisoner must remain in custody until discharged by due course of law.