HICKS vs. LAWSON

HICKS vs. LAWSON. L'rfeESPASS QUAKE CT.AUSÜM ERÉGXX.J 1. Second motion to suppress deposition. — When a motion to suppress a deposition lias been made and overruled, a renewal of tbe motion at a subsequent term, even on the ground of newly discovered evidence showing that the deposition was improperly taken, is addressed to the sound discretion of the primary coiart, and its action is not revise able on error or appeal. 2* Admissibility of evidence showing deposition to have been improperly taken, to impair Us tveighi %oiih jury ; offer of evidence for specified purposes, legal and illegal. — Evidence showing that a deposition was improperly or irregularly taken — as, that one of the parties was iireseht when it was taken, and had the answers of the witness already written out in his own handwriting, and read each answer to the witness as the questions were asked, and that they were written down as read by him — is proper for the consideration of the court, on a motion to suppress the deposition, but is not admissible before the jury, “for the purpose of impairing the weight of the deposition”; and if such evidence is offered for the purpose of impeaching the credit of two witnesses, whose depositions are shown to have been thus taken, while it contradicts the statements of only one of them, the court may reject it altogether. 3. Admission implied from silence. — Where evidence is offered against a party, showing that a statement was made in his presence, which contained an accusation against him, and to which he did not reply, thereby raising an implied admission on his part of the truth of the charge; and the court instructs the jury, both at the time the evidence is admitted, and afterwards when they are about to retire, that they must not allow it any weight or effect whatever, ‘'unless they are satisfied, from the whole evidence, that the statement was in fact made to him, and that it was made under such circumstances, and was of such a character, as would naturally call for a reply from him, and that he did not reply to it,” — the admission of the evidence, thus guarded, can not injure him. Appeal from tbe Circuit Court of Macon. Tried before tbe Hon. Eobeet Dougherty. This action was brought by John E. Lawson, against Henry H. Hicks, and was commenced on tbe 4th March* 1858. The trespass complained of was alleged to have been committed by the defendant, by entering on the plaintiff’s premises, on the night of 28th August, 1854, in company with several other persons, and shooting at the plaintiff through the windows of his house. The record does not show what pleas were filed. The jury gave the plaintiff $10,000 damages. “Before entering on the trial,” as the bill of exceptions states, “the defendant moved the court to suppress the depositions of Squire Hunter and Luther Eamsey. These motions were made at the same time, but separately; and, in support of said motions, the defendant offered to introduce the deposition of James Dennistoun, and to prove that the answers of said witnesses, Hunter and Eamsey, in the exhibits to Dennistoun’s testimony attached, and from which their answers in their said depositions were taken, were in the handwriting of the plaintiff,, and were obtained from said witnesses since the last term of the court; and that all these facts, so proposed to be proved in support of said motions, had been discovered by him since the last term of the court. It was duly proved to the court, by the records of the court, that the defendant had moved to suppress both of said depositions at the last term, and that said motions were then tried and overruled by the court. The court thereupon refused to receive said testimony, or any part thereof, and also refused to suppress said depositions, or either of them; to which several rulings and refusals the defendant excepted.” “After said depositions of Hunter and Eamsey had been read in evidence on tbe trial, against tbe objection of tbe defendant, tbe defendant offered to prove to tbe jury, for tbe purpose of impairing tbe weight of said depositions, that tbe plaintiff was present wben said depositions were taken by tbe commissioner, and read out to tbe commissioner, from a paper in bis (Lawson’s) bandwriting, tbe answer of eacb witness to eacb interrogatory; and offered to introduce said paper in evidence, and to sbow tbat it was in Lawson’s bandwriting, and tbat tbe answers therein contained were in exact accordance with their answers as found in their said depositions. Tbe plaintiff objected to tbe introduction of this evidence, and tbe court sustained bis objection; to which ruling tbe defendant excepted. The defendant further offered to prove, tbat tbe plaintiff was present wben tbe depositions of Hunter and Bamsey were taken, and, wben tbe questions were propounded to eacb witness, suggested to him tbe answer to be made to eacb interrogatory, and read to tbe commissioner, from a paper in bis (plaintiff’s) own bandwriting, tbe answer of eacb witness to eacb of said interrogatories. • Tbe plaintiff objected to tbe introduction of this evidence, and tbe court sustained tbe objection; to which rubng of tbe court tbe defendant excepted.” Luring tbe trial, tbe plaintiff offered to read to tbe jury tbe answer of one William Jackson to tbe 8th interrogatory propounded to him by tbe plaintiff; which answer was in tbe following words: “Shortly after Walker’s death, I met' .Hicks at Union Springs, and said to him, that be bad taken Walker, and others of bis crowd, and went down to Lawson’s bouse, and shot at him in tbe night, while asleep on bis bed; and, not satisfied with tbat, tbat be bad urged Walker on to Lawson, until be bad got him killed; and tbat it was a pity but it bad been him, instead of Walker. Hicks never denied it, but made no reply.” (Walker was tbe defendant’s overseer at tbe time of tbe alleged trespass on tbe plaintiff’s premises, and, according to bis subsequent confessions as detailed by tbe witness Jackson, was tbe person who shot at tbe plaintiff. He was afterwards indicted for tbat offense, was tried, and acquitted; but was subsequently killed by tbe plaintiff, in a rencounter between them.) “Before tbe plaintiff offered to read to tbe jury tbe answer of said Jackson to said 8tb interrogatory, it bad been proved that said Jackson was, at tbe time referred to in bis said answer, and bad been for many years, on intimate terms witb tbe defendant. Tbat part of tbe deposition of said witness, wbieb showed tbat be-was on intimate terms witb tbe defendant, was also introduced in evidence, against tbe defendant’s objection ; and to tbis action of tbe court tbe defendant excepted. Tbe court overruled tbe objection of tbe defendant to tbe answer of said witness to said 8tb interrogatory, and permitted tbe plaintiff to read said answer in evidence to tbe jury; but distinctly stated to tbe jury, at tbe same time, tbat they must not allow any weight or effect whatever to said answer, unless they were convinced from tbe whole evidence in tbe cause, in tbe first place, ibat tbe said statement of tbe said witness was in fact made to tbe defendant, and tbat it was made under such circumstances, and was of such a character as naturally called for a reply from him, and tbat tbe defendant was at tbe time in such a situation tbat be would probably respond to it, and tbat be did not respond to it; to which rulings and decisions of tbe court tbe defendant excepted.” Tbe court afterwards instructed tbe jury, in reference to tbis evidence, “tbat they must first determine, from tbe. whole evidence, whether they believed tbat said statement was made by tbe witness to tbe defendant, and was made under such circumstances, and was of such a character, as naturally called for a reply from him, and tbat be made no reply to it; that,- if they did not believe all tbis from tbe evidence, they must not allow any weight or effect whatever to said answer as evidence, and must altogether exclude it from their consideration in making up their verdict; but, if they befieved all tbis, they might consider tbe defendant’s failure to reply to tbe said statement as an admission of tbe truth of said statement, if they thought proper so to consider it. Tbe defendant also excepted to tbis charge of tbe court.” Tbe several rulings of tbe court to which, as above stated, exceptions were reserved, are now assigned as error. Geo. W. Gunn, with, whom were Clopton & Ligón, and Thos. H. Watts, for appellant. W. P. Chilton, conira. [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. 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. 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. 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.