Richardson v. State , 237 Ala. 11 ( 1938 )

It appears to me the opinion of the majority both misconstrues the holding of the Court of Appeals and misapplies the rule in the premises.

The defendant had merely sought to impeach the state witness by proving declarations out of court to a third person at variance with his testimony in court. A predicate for such testimony called for time and place, and the person to whom the reputed declarations were made.

On redirect examination the state was permitted to show what the third party on the alleged occasion said to him, a statement coming from the mother of defendant in his answer, tending to admit guilt. If defendant had called for any statements by the mother on the occasion, this would have opened up the entire statement made at the same time on that subject.

But to seize upon the predicate for impeaching declarations by the witness to open the door to declarations by a third person, not at all inquired about by defendant, is such an obvious and dangerous misapplication of the rule that one who has drawn out part of a conversation opens up the whole, that I feel impelled to record a dissent.

Moreover, the majority opinion seems to overlook the following announcements of the Court of Appeals:

"As to the latter conversation Richburg testified: 'Eventually it rocked on and one Saturday she come over there, and she said as soon as she got hold of some money she would pay it, and that was two or three months ago. That was about all of the conversation.'

"* * * * * * *

"As to the second conversation above referred to therewas no semblance of inquiry by defendant on cross-examination of Richburg." (Italics supplied.)

To avoid confusion in the law I further observe: The better rule is that where a witness is asked touching a certain declaration out of court for purposes of impeachment, and he makes a simple denial, the opposing party is not entitled to inquire what he did say on the occasion until and unless the impeaching party has offered testimony that the witness did make such declaration. The witness, in the latter event, is entitled to tell what he did say in rebuttal or explanation of the impeaching evidence. Martin v. State, 119 Ala. 1, 25 So. 255; Cathcart v. Webb Morgan, 144 Ala. 559, 42 So. 25; 1 Greenleaf on Evidence, § 467; Sandlin v. State, 25 Ala. App. 311, 146 So. 82.