Carlisle v. Hunley

15 Ala. 623

Opinion

CHILTON, J.

If a party desired to impeach the credit,of a witness, by proof that he has made verbal statements, out of court, contrary to what he has testified upon the trial, -to avoid surprise, and to afford him the opportunity of explanation, he should be asked as to the time,-place, and person involved in the supposed contradiction. 1 Greenl. Ev. 415; Queen’s Case, 2 Bro. & Bingham, 313; 1 Ala. Rep. 65; 13 ib. 303. This was not done in the'case before us,- and consequently, the court erred in permitting the witness, Shaffer, to controvert what Carlisle-had sworn. . ■ '

The-subsequent instruction of the court, “that-thb jury might consider the testimony of Carlisle- for what it - Was worth, and as unaffected by Shaffer’s testimony, did not cure the error, in admitting Shaffer to testify as to the-statements of Carlisle; which conflicted with'his-evklence. ' Every one; familiar with the practice, knows how difficult it is to eradicate from the mind of a jury an injurious'impression thus created, (McCurry v. Hooper, 13 Ala. Rep. 823;) by permitting illegal proof to be submitted to- them, and in such case,' nothing short of a direct and unequivocal charge to them, to disregard'the illegal proof, would be likely to erase the impression. In the case before us, the charge of the court was, ■that they might disregard the illegal proof; thus giving them a discretion as to whether they should do so or not, whereas the law makes it peremptory upon them to lose sight of it. The court having failed so to instruct them, as to render the first error harmless, the judgment must be reversed, and the cause remanded. See Ames v. Schuesler and Donnell, 14 Ala. Rep. 600.