Olds v. Powell , 10 Ala. 393 ( 1846 )

ORMOND, J.

When this case was here previously, (reported in 7 Ala. 652, and 9 Id. 861,) we held, that the declarations of the father in law, made at or about the time the slaves were sent home, to the son in law, were evidence of his intention as to the character of the estate intended to be created, and that proof of such declarations at any period between the time of the marriage and sending home the slaves, was competent. '

The objection to Miss Powell’s deposition, or to the part objected to, is, that it does not appear the declarations were, made in the presence of the parties; and to Mrs. Gilmer’s, that it does not appear when the conversation there deposed to, was had. We think it does sufficiently appear from the context, taking the entire deposition into view, that the objections are untenable. But there is another decisive answer to this objection. If the depositions are ambiguous, it was the duty of the party, on the cross examination, to ask such questions as would clear up the supposed difficulty. He cannot be permitted to stand silently by, when by a question he could have removed all doubt, and on the trial reject the deposition for uncertainty.

The witness also stated, that her sister know, of her father’s intention to make a qualified gift of the slaves, and she thought her sister was willing to receive them in that way : it is now insisted that this testimony was illegal, and comes within the principle of the P. & M. Bank v. Borland, 5 Ala. 531, and other subsequent cases, where it has been held, that a witness could not swear to the motives or intentions of others. We do not think the testimony open to this objection. The witness may have been able to swear to her sister’s knowledge of the fact, from being present when it was communicated to her, as in a previous part of the deposition she states she was, and to her willingness to receive the property on the terms offered by the father, from her declarations at the time. These are clearly facts which may be the subject of evidence, and are not like the cases cited, an attempt to give evidence of the secret purpose of the mind. If the opposite party desired to know the source of the witness’ knowledge, he should have brought it out on the cross examination.

Neither did the court err in refusing to permit the jury,rto take the memorandum made by the witnes's Thomason, of what another witness, he was called to impeach, had sworn to on a previdus trial. The memorandum, which it appears he made, might have been looked to by him, for the purpose of refreshing his memory of the facts there stated, but after such inspection, he must have been able to swear, that- he recollected what took place at the trial, without relying on the memorandum. The only purpose which the memorandum could subserve, was to revive a forgotten train of thought, by the mention of a fact, or incident, which had occurred, and which when brought before the mind, would bring with it, the other facts with which it had been originally associated— a process of the mind with which every one is familiar. The memorandum itself, was not evidence for any purpose.

In this case it appears, the witness did not rely upon the memorandum to revive his recollection of the facts, but having stated upon the cross examination that he had made one, when the witness was examined, which was correct as far as-it went, it was insisted that the memorándum should go to the jury with his testimony, and as a part of it. This was clearly improper. The only use which could have been made of it was to impeach his present recollection of the facts, by showing his previous, counter, written declaration of the same transaction, if there was any opposition between them. It was not in any sense, an instrument of evidence, and certainly was not a part of the testimony of the witness. It was-the right of the opposite party to use it, as a declaration of the witness, for the purpose of impeaching his recollection, as he appears to have done. He had no right to insist on its going to the jury, asan instrument of evidence.

Let the judgment be affirmed.