63 So. 949 | Ala. | 1913
— This court in the case of Birmingham R. R. v. Seaborn, 168 Ala. 658, 53 South. 241, in discussing the rule as to refreshing the memory of witnesses from memoranda, reiterated the rule as laid down in the case of Acklen v. Hickman, 63 Ala. 498, 35 Am. Rep. 543, wherein it was said: “ ‘The law recognizes the right of a witness to consult memoranda in aid of his recollection, under two conditions: First, when, after examining a memorandum made by himself, or known and recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinguishing difference between testimony thus given and ordinary evidence of facts is that the witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollection of the transaction he testifies to had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to> the jury, unless opposing counsel call out the same on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason. In the second class are em
We do not think that the witness James Smith brought himself within the influence of the first proposition, for the reason that, after repeated examinations of his own deed, he was unable to give the contents of the missing paper as a matter of independent recollection with that degree of certainty as to leave no reasonable doubt as to the substantial parts of the lost deed. —Elyton Land Co. v. Denny, 108 Ala. 562, 18 South. 561. In other words, the evidence of this witness, when brought to a final analysis, is that he knew that Kelly gave Smith and Williams a paper identical with his own, except perhaps as to. the description of the land,, bnt as to the-form or contents of same he could not testify except by way of comparison with and as dependent upon his own deed. This is to say that the witness,, after examining his own deed, did not and could not testify as to the contents of the missing deed independent of his own deed, as he made repeated efforts to do. so and corrected and changed his testimony so fre
We do not understand the case of Stewart v. Harris, 6 Ala. App. 518, 60 South. 445, as being in conflict with the foregoing rule, as the witness Packett had no personal knowledge of the correctness of the entries with which it was sought to refresh his recollection.
As this case must be reversed, we will add, as a guide upon the next trial, that the trial court did not err in holding that a sufficient predicate was laid for the introduction of secondary proof of the deed to Smith and Williams. It Avas last traced into the possession of W. C. Easton, and every reasonable effort Avas shown to locate the original if never returned by him. Its absence was also sufficiently accounted for by those in charge and control of the effects of Emanuel Smith, deceased, and the proof shows that it could not "reasonably be located if ever returned to Williams, as the evidence shows that he and his wife were both dead, and that they left no known representative or relatives
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.