Penney v. McCauley

PELHAM, J. A duebill, given by the appellant to the appellee, is the foundation of the suit brought in the trial court. The appellee having declared on the duebill, appellant pleaded the general issue, payment, and two special pleas, setting up a subsequent and separate agreement in satisfaction and settlement of the claim evidenced by the duebill. The evidence was in direct conflict as to .the parties having entered into the subsequent agreement, and the testimony of the appellee, McCauley, on this proposition being material to the issues made under the pleading, charge No. 4, requested in writing by appellant, should have been given, and its refusal constitutes reversible error.—So. Cotton Oil Co. v. Walker, 164 Ala. 33, 51 South. 169; A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28; McClellan v. State, 117 Ala. 140, 23 South. 653; Edmondson v. Anniston City [500] Land Co., 128 Ala. 589, 29 South. 596; Venable v. Venable, 165 Ala. 621, 51 South. 833; Williamson Iron Co. v. McQueen, 144 Ala. 265, 40 South. 306. Charge 3, requested by appellant, is argumentative, and singled out and gave undue prominence to a particular part of the testmony, and was properly refused. Charge B probably escapes the criticism made of charge 3, in that it falls within the exception to the general rule against giving such charges, as it goes only to the weight and credibility of the witness’ testimony; but its refusal would not constitute reversible error. The court committed no error in giving the charges requested by appellee. They assert correct propositions, and, if calculated to have a misleading tendency, and to include the subsequent verbal agreement, it was the appellant’s duty to request, explanatory charges. The court’s rulings on the evidence were free from error. The latitude allowed on cross-examination was not violated in the cross-examination of the witness Kent. That a person remains silent when accused of guilt is competent evidence as a. circumstance tending to show guilt (Jackson v. State, 167 Ala. 44, 52 South. 835) ; and when a witness remains silent upon being asked about matters or a transaction supposed to be within his knowledge, and which he subsequently details upon the witness stand, it is competent to show this on cross-examination, for the purpose of allowing the jury to consider it as a circumstance in determining, the weight they will give to his testimony; and if there was any explanation for the witness’ silence, as suggested by appellant, this could be made to appear upon redirect examination. For the error committed in refusing charge 4, requested by appellant, the case is reversed. Reversed and remanded.