Patton v. Rambo

| Ala. | Jan 15, 1852

PARC-AN, C. J.'

The general rule. in reference to the question raised in this case is, that secondary evidence shall not be received in lieu of primary, unless the original or primary evidence cannot be produced; and when all the evidence is of a primary character, it must go to the jury, and cannot be excluded because more conclusive proof might have been offered. Greenl. Ev. Vol. 1 § 8; Tayloe v. Riggs, 1 Pet., 591" court="SCOTUS" date_filed="1828-02-22" href="https://app.midpage.ai/document/tayloe-v-riggs-85604?utm_source=webapp" opinion_id="85604">1 Peters, 591; The United States v. Reyburn, 6 Pet., 352" court="SCOTUS" date_filed="1832-02-18" href="https://app.midpage.ai/document/united-states-v-reyburn-85789?utm_source=webapp" opinion_id="85789">6 Peters, 352.

This rule the counsel for the plaintiff does not controvert, but he insists, that even when all the evidence, both that which might have been introduced, as well as that which is introduced, is primary or original in its character; still, if that which is offered is less satisfactory and conclusive than that which might have been, but was not, introduced, this is a circumstance that makes against the party, and should be so considered by the jury, in weighing the testimony actually introduced. I am not satisfied, that the authorities to which he refers sustain the distinction which has been drawn. But if it were admitted, that the distinction does, or ought to exist, yet it is very certain, that before the court should instruct the jury, that the failure to introduce the more conclusive proof was a circumstance against the party, it should clearly appear to the court, that the proof withheld, or not introduced, could more clearly or fully explain the point in issue, than the proof relied on did.. Unless this should be made distinctly to appear, no one could say what the evidence withheld could explain or show; and certainly no party is bound to introduce every witness to a fact, that might be called; he need only prove the fact sufficiently. Before, therefore, the evidence introduced can be impugned, or in the slightest degree impeached, upon the idea that the party has withheld the better or more conclusive evidence, it must distinctly appear, that the evidence not introduced could more clearly explain the fact in controversy, than the evidence offered.

Applying this test to the case before us, there is no error; for we cannot, nor could the court below say, that Dr. Henkle was better qualified to testify to the character of the disease under which the slave labored, than Dr. Jackson. They were both shown to be physicians of skill, and though Dr. Henkle was called in first, it does not appear that he did more than prescribe for the ordinary fevers of the country. But when Dr. Jackson was called to see the slave, two months afterwards, he examined the slave thoroughly, and from this examination testified as to the nature and duration of the disease. Under these circumstances, we cannot say that Dr. Henkle could have testified more accurately than Dr. Jackson, and therefore it did not appear that the plaintiff could have introduced more satisfactory or conclusive proof than he did.

Let the judgment be affirmed.