Hicks v. Lawson , 39 Ala. 90 ( 1863 )

R. W. WALKER, J.

[1.] The action of the court below in refusing to hear the evidence offered in Support of the motion to suppress the depositions of Hunter and Ramsey, and in overruling that motion, was, in substance and effect, a refusal to re-try, on the ground of newly discovered evidence, a motion to suppress depositions. The hearing a second time of a motion to suppress a deposition, is *a matter which must be left to the discretion of the court to which the application is made. It is like an application for a new trial, or for permission to file new pleas, or to renew any motion which is made in the progress of a cause, and falls within the principle of several decisions heretofore made by this court, which are collated in Mahone v. Williams, decided at the present term. The refusal of a new trial can not be revised, no matter how important the cause, nor how well founded the application may have been. There is no distinction, between the refusal of a new trial of a cause, and the refusal of a new trial of a motion to suppress a deposition, which would justify the adoption of a different rule in the two cases. We think it consistent with principles recognized in this court, and in every respect ' the better practice, to hold the decision of all such questions as the allowance of Ihe renewal of a motion to be in the discretion of the court below, and not revisable. Such a question “depends so much on the discretion of the court below, which must be regulated more by the circumstances of every case than by any precise and known rules of law, and of which the superior court can never become fully possessed, that there would be more danger of injury in revising matters of this kind, than what might result now and then from an arbitrary and improper exercise of this discretion.” — Mar. Ins. Co. v. Hodgson, 6 Cranch, 206.

[2.] After the court had refused to hear the evidence which the defendant proposed to introduce in support of his motion to suppress the depositions, the defendant, in the course of the trial, offered the same evidence, “for the purpose of impairing the weight of the depositions.” This evidence related entirely to the manner of taking the depositions, and would seem to be pertinent only to the question, whether they had been regularly or irregularly taken. This was a question exclusively for the court, and had been decided by the court. It is said, however, that the evidence was admissible, for the purpose of impeaching the witness Hunter, because it contradicted some of the statements contained in his deposition. We need not inquire whether the statement that evidence was offered “for the purpose of impairing the weight of the depositions,” should be construed as a statement that it was offered for the purpose of impeaching the witnesses. Nor will we stop to consider whether the witness Hunter could be impeached by contradicting his statements as to the matters referred to; nor whether there are not other satisfactory reasons for rejecting the evidence. It is a sufficient answer to the argument just mentioned, to say that, conceding the appellant’s construction of the bill of exceptions to be correct, the evidence was offered for the purpose of impeaching the witness Kamsey, as well as for the purpose of impeaching Hunter; and as it is not pretended that it contradicted any part of Eamsey’s deposition, it was clearly not admissible for the purpose of impeaching him.— Campbell v. State, 23 Ala. 44 (81). When evidence is offered for two specified purposes, for either of which it is inadmissible, it is not error to reject it. — Johnson v. Marshall, 34 Ala. 522; Bartee v. James, 33 Ala. 34.

[3.] The defendant could not have been injured by the admission of the answer of Jackson, to the 8th interrogatory, guarded, as it was by the court at the time of its introduction, and by the subsequent charge to the jury.— See Lawson & Swinney v. State, 20 Ala. 65.

Judgment affirmed.