Weaver v. Traylor

5 Ala. 564

• Court: Supreme Court of Alabama
• Decided: June 15, 1843
• Status: Published

Opinion

CLAY, J.

But one question arises under the assignment of errors. That question is, whether it was proper to permit evidence to go to the jury, to impeach the credibility of the witness, Laughridge, on account of declarations of his interest in the matter in controversy, made before his deposition was taken? The general rule is, “ that, whenever the credit of a witness is to be impeached, by proof of any thing he has said, or declared, or done in relation to the cause, he is first to be asked, upon cross-examination, whether he has said or declared, or done that, which is intended to be proved.” If the witness admits the declarations or acts, he has it in his power to explain, or give the reasons which go in exculpation of his conduct, and the whole matter is brought fairly before the court. If'he deny the declarations or acts imputed tp him, then witnesses may be called to contradict him. This rule is extended so far, that « although the fact to be adduced, in order to impeach the winess’s testimony, be not discovered until after the conclusion of the cross-examination, the rule still holds; and evidence cannot be given, for the purpose of thus impeaching his testimony, without previous examination of the witness, even although the witness should have departed the court, and cannot be brought back, after the discovery has been made.” [See 3 Starkie’s Ev. 1753,’4’6.] This rule is equally necessary to protect the witness from unjust aspersion, and to protect the interest of the party who relies on his testimony.

The rule laid down has received the sanction of this court on more than one occasion. In the case of Lewis v. Post & Main, [1 Ala. Rep. N. S. 65,] it was ruled, that when a witness, on cross-examination, is asked whether he has not made other statements than those sworn to, he may inquire as to the particular time or statement, to which the cross-examination relates, and if the informationis not given, he ought not to be compelled to answer. [See the State v. Marler, 2 Ala. Rep. N. S. 43, and 2 Brod. and Bing. 310.]

In this case, the bill of exceptions shews, that the defendant was represented by counsel when the deposition was taken, who cross-examined the witness, but propounded no question in rela-tibn to any previous declaration of the witness, about his interest in the matter of controversy. If he had done so, the witness might have explained satisfactorily, or he might have been able to show, that although once interested he had ceased to be so; then the defendant might have introduced testimony to contradict the witness, if in his power.

This view of the authorities applicable to the subject, brings us to the conclusion, that the couit below erred in admitting proof of the declarations of interest, previously made by the witness.

Let the judgment be reversed and the cause remanded.