Hudson v. Howlett

STONE, J.

After the plaintiff had read in evidence to the jury the direct and cross examination of the witness Booker, and, among other things, that portion which said, “ the recovery of his money was all that the defendant (Hudson) seemed desirous of, or expressed any wish to deponent to do,” it was improper to permit him to withdraw a portion of said statement, and leave the balance before the jury. True, this evidence was not, in the form in which the witness expressed it, a simple admission, or attempt at a reiteration of what Hudson had said. The portion, however, which was excluded was of that character, and such was in substance its effect. It was not permissible for plaintiff to avail himself of a portion of this quasi admission, and exclude that portion which he thought would probably make against him, or which might, 'perchance, open the door to farther explanation. This question is, in substance, very like the one considered and settled in McLean v. The State, 16 Ala. 672. See, also, Lyde v. Taylor, 17 Ala. 270.

There is another point of view, in which, we think, the error of the ruling in the court below is very manifest. The plaintiff, in reading the entire deposition, put in proof an admission of the defendant. This he had a clear right to do. After proving the defendant’s admission against him, it was not for him/ afterwards to move its exclusion, when possibly, in the shifting phases of the trial, or on more mature reflection, he became convinced the evidence would make against him. Parties cannot thus experiment with testimony, which is, when offered by them, legal.

[2.] The deposition of the witness Smith should not have been suppressed. The motion came too late, and the court did right in overruling it. — McCreary v. Turk, 29 Ala. 244, and authorities cited.

[3.] There is no error in the charge of the court.

The judgment of the Circuit court is reversed, and the cause remanded.