Osborn v. State

Nov 15, 1899

Versions:125 Ala. 106

SHARPE, J.

Whether a jury is authorized to discard altogether the testimony of a witness who lias been impeached, depends not alone upon the fact of impeachment, but from that fact, considered in connection Avith other facts in evidence. One Avho is generally unAvorthy of credit may spealc the truth in the particular case, and from the attendant facts and circumstances the jury may be convinced that he has done so. In such case it would be the jury’s duty not to discard but to consider the testimony, giving it such weight as it may be entitled to in view of the impeaching evidence as Avell as the other evidence. — Jordan v. State, 81 Ala. 20; Lowe v. State, 88 Ala. 8; Grimes v. State, 63 Ala. 166; Addison v. State, 48 Ala. 478; Moore v. State, 68 Ala. 360.

Charge 1 Avas calculated to mislead the jury to believe that the credibility of the testimony referred to was to be tested alone by the extent to Avhich the general credibility of the Avitn esses had been impeached.

The proposition asserted by the first clause of charge 2, to effect that the testimony of an impeached witness is insufficient to convict Avithout corroboration by other evidence tending to show guilt, Avas held correct in Cohen v. State, 50 Ala. 108 and in Porter v. State, 55 Ala. 95, but Avas condemned in Moore v. State, supra, and again in Horn v. State, 98 Ala. 23. A similar one Avas also held bad in Ray v. State, 50 Ala. 104, but for the reason given in that casé the witnesses had not been impeached. In Moore’s Case referred to it was said by the court that “when the character of a witness is assailed, or he is otherwise impeached as being unworthy of credit. *110it is entirely within the province of the jury as the exclusive judges of the facts to say what degree of weight or credibility shall be given to his testimony. It does not lie in the mouth of any -court to instruct the jury as a matter of law that they cannot convict -on such testimony unless it is corroborated.”

We are of the opinion that the latter case states the law correctly. The statements of an impeached witness may be so disinterested and consonant with reason as to carry with it internal evidence of truth. The general rule applicable alike to witnesses who are and who are not impeached is that an instruction by the court defining the effect .to be given their statements is an infringement upon the jury’s province.- — Norris v. State, 87 Ala. 85; Corley v. State, 28 Ala. 22; Cent. R. &c. Co. v. Phinizee, 98 Ga. 488; 1 Green. Ev. § 10 and note; 29 Am. & Eng. Ency. Law, 706-768. On this point the cases of Cohen v. State and Porter v. State, supra, must be overruled .

Testimony that is illegal or irrelevant may properly be excluded at any stage -of the trial though not objected to when called for; but when not so objected to it is not reversible error to refuse to exclude it. — Lewis v. State, 121 Ala. 1; 25 So. Rep. 1017. The evidence as to the justice’s connection with the case was not -objected to in proper time and being allowed to remain before the jury, it was permissible for the counsel on either side to refer to it.

No error appearing in the record, the judgment will be affirmed.