Thomas v. State, 117 Ala. 178

Thomas v. State

117 Ala. 178

Ala.

1897

Check Treatment

Dissenting Opinion

COLEMAN, J.,

dissenting I rеcognize fully the principle, that a party is not bound by the testimony of a witness who has testified differently from what the party calling him had a right to expect, and has been then thus taken by surprise. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍It is stated by Greenleaf on Evidence, Vol. 1, section 444, as follows : “Whether it be competent for a party to prove that а witness whom he has called, and whose testimony is unfavorable to his cause, had previously stated the facts in a different manner, is а question upon which there exists some diversity of opinion. On the one hand, it is urged, thаt a party is not to be sacrificed to his witness ; that he is not represented by him, nor identified with him; and that he ought not to be entrapped by the arts of a designing man, perhaps in the interest of his adversary. On the other hand, it is said, that to admit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such prоof would enable the party to get the naked declarations of a witnеss before the jury, operating, in fact, as independant evidence ; and this, tоo, even where the declarations were made out of court, by collusion, fo^ the purpose of being thus introduced. But the weight of authority seems in favor of admitting the party to show that the evidence *182has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial, or tо what the party had reason to believe he would testify ; or, that the witness had recently been brought under the influence of the other party, and has deceived the party calling him. For ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it is said that this course is necessary for his protection against the contrivance of an artful witness ; and that the danger of its being regarded by the jury as substantive evidence is no greater in such cases than it is where the contradictory declarations are proved by the adverse рarty.”

The rule is also correctly stated in Hemingway v. State, 51 Ala. 530, and Campbell v. State, 23 Ala. 76. The rule applies in all cases where the witness is interrogated as to some facts bearing upon the issue before the jury, and surprises the party by testifying differently from what was expected. I cannot conceive of any legal reason for extending the rule to the case under consideration. A predicate had been laid ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to impeach the witness Henry Hunter, by asking him if he had nоt told the witness that “he did not know who assaulted him.” Having answered in the negative, for the purpose of proving a contradictory statement, the witness was asked if Henry Hunter did not make such statement. Having answered that ‘ ‘he did not, ’ ’ the witness herself was asked if she had not told the father of defendant that she would swear that her brother, Henry. Hunter, had made such a statement, and the question was askеd in connection ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with the statement to the court by the counsel of defendаnt that his “purpose was to show surprise, and to prove by defendant's father thаt she had made this statement to him.” Not only was the question asked to show surprise but, as admitted, for the purpose of impeaching his own witness, by showing that she had made contradictory statements. The questions to the witness Hunter as to his statements wеre mere hearsay on the issue before the jury, and were admissible purely for the purpose of affecting his credibility, and now it is held, that his credibility may be impеached by showing the impeaching witness made contradictory statements. The rule was never intended to be extended or applied in this way.

Lead Opinion

McCLELLAN, J.

The fact that the defendant, very • soon after the assault he is charged with having made upоn Hunter, married Hunter’s sister, Virginia, was competent to go to the jury as tending to show motive for the assault, in connection with the fact that Hunter immediately preceding the assault had taken her away from Rogers’ restaurant where defendant also was.

The court erred in refusing to allow defendant to ask the witness, Estelle Hunter, whether she had not told the father of the defendant the morning of the trial, аt her father’s house, that she would swear “that her brother Henry Hunter came homе soon after he was struck that night, and told her he did not know who hit him.” The purpose оf this testimony was to show surprise on the part of the defendant, and to relieve him from the disadvantage at which he had been put by unexpected evidence, and not to impeach his own witness, though that might have been an incidental effect.— White v. State, 87 Ala. 24; Griffith v. State, 90 Ala. 583; Hemingway v. State, 51 Ala. 530.

Reversed and remanded.