Toole v. Nichol , 43 Ala. 406 ( 1869 )

B. E. SAEEOLD, J.

A rehearing has been had on the judgment of affirmance in this case. A more thorough examination of the question at issue satisfies us that the judgment of the city court should be reversed.

In the case of the Phil. & Trenton R. R. Co. v. Stimpson, (14 Peters, 448, 461,) the supreme court of the United States lays down this rule of cross-examination: A party has no right to cross-examine a witness, except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own, and calling him as such in the subsequent progress of the cause. To the like effect are the decisions in Floyd v. Bovard, 6 Watts & Serg. 75, and Ellmaker v. Buckley, 16 S. & R. 77.

The purpose of a cross-examination is to sift the testimony of a witness, and to try his integrity. When he has not been examined in chief, there can be no necessity for this, j In the present case, the defendant’s witnesses were put under the rule, for examination apart, at the instance of tbe plaintiff. The defendant having concluded his evidence, without calling one of the witnesses sworn by him, the court allowed the plaintiff to cross-examine him as the witness of the defendant. In this we think there was error.

The judgment is reversed, and the cause remanded.