Stewart v. Russell

38 Ala. 619 | Ala. | 1863

STONE, J.

The testimony which tended to prove protest of the bill of exchange, which was the foundation of the present suit, was that of three witnesses, who produced what they testified was a copy of the protest. We are not informed that there was any conflict of the evidence on this point. The court charged the jury that'“the exhibit, (copy of the protest attached to the depositions,) “together with the depositions accompanying the same, was sufficient evidence, of themselves, of the protest of the bill here sued on.” The exhibit- does not appear to have been a certified copy, nor to have been authenticated, otherwise than by said depositions. The objection urged to this charge is, that it invaded the province of the jury, by assuming the credibility of the testimony, without referring that question to the jury.

There is, at least, an apparent conflict in the decisions of this court on the question we are considering. Williams v. Shackelford, (16 Ala. 318,) and Nelms v. Williams, (18 Ala. 653,) give countenance to the idea, that when there is no conflict in the evidence, the court may charge positively, without hypothesis. These two cases, it will be seen, are rested on the authority of Henderson v. Marberry, 13 Ala. 713. In the case last cited, the charge expressly referred to the jury the question of the credibility of the testimony ; and, hence, did not sustain the latter cases of Williams v. Shackelford, and Nelms v. Williams. There were also, in the cases last cited, some peculiarities of circumstances.

In our later decisions, we have not followed the lead of the two cases from 16th and 18th Alabama Reports, but have held, that on questions of fact, dependent on oral testimony, if there be any evidence before the jury bearing on the point, the decision is for the jury, and can not be pronounced by the court. — See Hollingsworth v. Martin, 23 Ala. 598; McKenzie v. Stevens, 19 Ala. 691; Hopkins v. Scott, 20 Ala. 185; Stokes v. Jones, 21 Ala. 736 ; Abney v. Pickett, ib. 741; Thompson v. State, 30 Ala. 28 ; Hughes v. State, ib. 45 ; McDougald v. Rutherford, ib. 253 ; Carter v. State, 23 Ala. 430; Rigby v. Norwood, 34 Ala. 132 ; Shep. Digest, 459-60, §§ 13, 14, 24, 25, 30, 32, 36.

In the present case, the court assumed as a fact that which it was the province of the jury to find ; and, however conclusive the testimony may be supposed to have been, still we think it much safer not to open the door to so dangerous an innovation.

We deem it unnecessary to inquire whether there is any thing in the objection, that the evidence offered of protest is secondary — a mere copy — without accounting for the absence of the original. If the original be contained in an office book, or quasi record, that fact can be shown on another trial.

In the other rulings of the court we find no error ; but, for the error in the charge above pointed out, the judgment of the circuit court is reversed, and the cause remanded.