90 So. 2d 92 | Ala. Ct. App. | 1956
This is the second appeal in this case. Woods v. State,
The appellant now insists that the court erred to a reversal in permitting the solicitor on this trial to question the said Darrel Woods, called again as a witness by the State, as to such alleged previous statements.
The witness testified, as he did on the first trial, that he saw the defendant shove the rock at deceased but did not see the rock actually hit him.
Thereupon the solicitor claimed surprise and over defendant's objections was permitted to ask the witness if he didn't tell the solicitor the next day after the occurrence that he saw Romie Woods hit Burley Brown with a rock. The witness answered: "I might have, I don't know, I don't remember."
It is well settled that a party has no right to impeach his own witness, but, when he is taken by surprise and denotes such surprise, he may interpose questions to the witness as to his previous statements which are inconsistent with his present testimony. Woods v. State, supra; Ray v. State,
But it is not enough to claim surprise; the party offering the witness must be genuinely surprised at his testimony. Moomaw v. United States, 5 Cir.,
In Young v. United States, supra [97 F.2d 205], the court said: "It is, in our opinion, never admissible under any sound interpretation of the rule, certainly not in Texas, nor in the Fifth Circuit, to offer a witness whose testimony the offerer knows in advance will be adverse, in order to get before the jury, in the form of impeachment, contradictory statements of his which are useful to the prosecutor."
In State v. Cooper,
In Strand v. Village of Watson, Minn.,
Obviously, the State was fully aware of what the testimony of the witness Darrel Woods would be before he was called to testify. There being no surprise, the State should not have been permitted to attempt to impeach his testimony.
Reversed and remanded.