Trammell v. Hemphill

By the Court. Benning J. delivering the opinion. The question is, was the Court right, in overruling the motion for a new trial. The fourth ground of the motion was, we think, good. The exclusion of the testimony of A. J. Hansell,|was put on the ground, that he could not give the very words of the deceased witness, Smith, although he could give their substance. We think it sufficient, in such a case, that a witness can give the substance of the words. New persons have [528] memories to enable them, to give the exact words ; and when a person professes to do that, he subjects himself to some degree of suspicion. If the substance is not receivable, it is plain, that the evidence, in most of the eases, will be wholly lost. No law was read to show, that the very words must be given. This, then, was a ground on which, the motion, we think, should have been granted. The last ground is not true in fact — as we understand the bill of exceptions. The Court certainly told the jury, that the fact that the fi.fa. was in the possession of J.ehial Jackson, the defendant in it, “might be used as a circumstance for the consideration of the jury,” on the question, whether the ji.fa. had not been satisfied. It is unnecessary to consider the other grounds. Judgment reversed and new trial granted.