11 Ala. 43 | Ala. | 1847
The mode in which the examination of a witness shall be conducted, must in a great degree be left to the discretion of the judge trying the cause. He may permit the examination in chief to assume the form of a cross-examination, if he considers it necessary, to enable the party to extract the truth from an unwilling witness. [Blevins v. Pope & Son, 7 Ala. 374.] If the objection is merely to the form of the question, and the court should erroneously refuse to permit it to be put, supposing it to be leading, when it is not, it is an error revisable in this court, unless the re
The first question proposed to the witness, Taylor, was in our opinion, entirely unexceptionable. The objection to questions of this kind is frequently captious, and made when there is no danger of the witness being prompted to answer in a particular way; and if the attention of the witness cannot be directed to the points to which his testimony is wanted, it would be difficult, and frequently impossible, especially in cases of this description, to get from him the facts which he might know. The objection to this question is, that it assumed the fact, that there was a difference in the conduct of the deceased during the last five years of his life, from the preceding period, during which the witness had known him ■ and if the witness had answered there was such a difference as the question supposes, it would have availed the defendant nothing, he must have gone further, and explained in what the difference consisted. It is therefore perfectly clear that the question was harmless, although in form to some extent leading, and should not have been excluded.
The next question is not so clearly unexceptionable, as it assumes the existence of a state of things, from which imbecility of mind might be inferred — and although it is difficult to suppose, that the opposite party could have been prejudiced by the form in which the question was put, we are not prepared to say, that under the discretion which must necessarily be reposed in the presiding judge, the refusal would be such an error, as would be sufficient to reverse the case.
The last question was clearly proper. The objection urged against it here is, that it referred t© the opinion of the witness, whether the deceased was of sound mind or not. We do not think the opinion of the witness was asked, or expected to be given. The question merely pointed his attention to the subject upon which he was to be examined, the capacity, or soundness of the mind of the deceased, in reference to which he was asked to state what he said, or did. When these declarations or acts were stated, it was for
For myself, I must say, that X have attained the conclusion to reverse this case very reluctantly, as it is incomprehensible-,- if the objection was to the form of the question merely, as it is admitted to have been, why it was not presented in one of the many other shapes in which it might have been conceived, and the facts within the knowledge of the witness elicited.
For the error of the court in refusing to permit the first question to be put to the witness, Taylor, the judgment must be reversed, and the cause remanded.
