Phillips v. State

Supreme Court of Alabama

Phillips v. State

66 So. 3, 188 Ala. 57, 1914 Ala. LEXIS 243

CourtSupreme Court of Alabama

DecidedJune 30, 1914

StatusPublished

Cited by1 cases

This text of 66 So. 3 (Phillips v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Phillips v. State, 66 So. 3, 188 Ala. 57, 1914 Ala. LEXIS 243 (Ala. 1914).

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Opinion

de GRAFFENRIED, J.

A 'witness cannot be impeached by showing contradictory statements made out of court, unless his attention is called to the time and place at which he made them.—Lewis v. Post & Main, 1 Ala. 65; Powell v. State, 19 Ala. 577; Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 422; Southern Railway Co. v. Williams, 113 Ala. 621, 21 South. 328.

We cite the above cases, not for the purpose of showing authorities in which a well-known rule is announced but because they discuss the rule and give the reasons upon which it is based.

In the instant case the Court of Appeals find, as a fad, that when the impeached witness Myers was being interrogated in reference to the statement about which he was contradicted by the .witness Mixon, it was evident that Myers kneio the place of the conversation inquired about and which was made the subject of contradiction. If the trial judge saw that Myers knew the place of the alleged contradictory statement, if the trial judge had facts which established this, then there was no necessity for fixing the place of the alleged contradictory statement in the preliminary question.

“The predicate is sufficiently laid when the attention of the witness is called to the time, place, and circumstances and persons involved, and the statements made; but the rule is not iron-clad, (that is, it does not require [59]*59perfect precision as to either). When it is clear that the witness cannot be taken by suo-prise, and ample opportunity is afforded to make any explanation desired, the predicate is suffcient to authorise proof of contradictory statements.”—Southern Railway Co. v. Williams, supra.

The opinion of the Court of Appeals fully recognizes the above rule, and, in its opinion on file in this case, that court states, as a finding of fact from the bill of exceptions, that, under that part of the rule which we have above italicized, the evidence of which appellant complains was competent. We have steadily refused to review the findings of fact of the Court of Appeals, and for that reason this writ must be denied. The other questions presented to us for review were properly disposed of by the Court of Appeals.

Writ denied.

All the Justices concur.

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de GRAFFENRIED, J.

A 'witness cannot be impeached by showing contradictory statements made out of court, unless his attention is called to the time and place at which he made them.—Lewis v. Post & Main, 1 Ala. 65; Powell v. State, 19 Ala. 577; Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 422; Southern Railway Co. v. Williams, 113 Ala. 621, 21 South. 328.

We cite the above cases, not for the purpose of showing authorities in which a well-known rule is announced but because they discuss the rule and give the reasons upon which it is based.

In the instant case the Court of Appeals find, as a fad, that when the impeached witness Myers was being interrogated in reference to the statement about which he was contradicted by the .witness Mixon, it was evident that Myers kneio the place of the conversation inquired about and which was made the subject of contradiction. If the trial judge saw that Myers knew the place of the alleged contradictory statement, if the trial judge had facts which established this, then there was no necessity for fixing the place of the alleged contradictory statement in the preliminary question.

“The predicate is sufficiently laid when the attention of the witness is called to the time, place, and circumstances and persons involved, and the statements made; but the rule is not iron-clad, (that is, it does not require [59]*59perfect precision as to either). When it is clear that the witness cannot be taken by suo-prise, and ample opportunity is afforded to make any explanation desired, the predicate is suffcient to authorise proof of contradictory statements.”—Southern Railway Co. v. Williams, supra.

The opinion of the Court of Appeals fully recognizes the above rule, and, in its opinion on file in this case, that court states, as a finding of fact from the bill of exceptions, that, under that part of the rule which we have above italicized, the evidence of which appellant complains was competent. We have steadily refused to review the findings of fact of the Court of Appeals, and for that reason this writ must be denied. The other questions presented to us for review were properly disposed of by the Court of Appeals.

Writ denied.

All the Justices concur.

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