White v. State , 87 Ala. 24 ( 1888 )

McCLELLAN, J.

A party may ask his witness, for the purpose of refreshing his memory, or of showing that he has been put at a disadvantage by unexpected evidence, whether at a certain time and place he has not made certain statements inconsistent with his testimony on the stand, even though the admission of such inconsistent statements will injuriously affect the witness’ credibility with the jury. Campbell v. State, 23 Ala. 77; Hemingway v. Garth, 51 Ala. 530; Roscoe’s Cr. Ev. 103; 1 Greenl. Ev. § 444. While this can not be done, when the purpose and only effect of such evidence is to impeach the witness (Gandy v. State, 81 Ala. 68); yet, the mere fact that the party expects the witness to admit the contradictory statements is not sufficient to show that the purpose and sole effect of the examination is to impeach the witness, or to justify the exclusion of the testimony. Therefore, the defendant’s witness, Lloyd, having, in reply to defendant’s counsel, sworn that the State’s witness, Harris, had not attempted to get her to “false-witness” the defendant, proper predicate having been laid for the impeachment of Harris, the court should have allowed counsel to ask Lloyd, if she had not, at a given' time and place, stated to him that such attempt was made. The refusal of the court to allow this question to be put and answered was error, for which the case must be reversed.

“When a party offers a witness in proof of his cause, he thereby, in general, represents him as worthy of belief;” and he will not be permitted to impeach the witness’ general reputation for truth, or otherwise show that he is unworthy of credit:’ The ground upon which the right to impeach his; own witness is denied to a party — the reason of the rule— Would apply equally to the witness after he had been examined and discharged by the one, and introduced by the other party; and would extend throughout the particular case. Eor such party to attack the credibility of the witness, in that case, even after he had become the witness of his adversary, would be inconsistent with his implied assurance of his worthiness of belief. And while a party may show that the fact is not as it was testified to by his witness, either during the time he continued to be so, strictly speaking, or after he had been offered as to new matters by the other party; it can not be said that, at any time, or under any circumstances, in that trial, he has a right to impeach him. As we have shown above, for certain purposes, other than impeachment, a party may show, by the witness himself, inconsistent statements; but, even with respect to these, he is not permitted to assume an attitude repugnant to his representation of general credibility. In the usual sense of the term, therefore, the statement of the solicitor, that the law did not allow him to impeach the witness, Catherine White, was - a correct exposition • of the rule, and a proper argument in reply to the position taken by defendant’s counsel. — 1 Gr. Ev. % M2.

Reversed and remanded.