Whitsett v. Belue

SIMPSON, J. This is a contest of the will of Martha Higgins, deceased, filed by the appellees. Only 13 of the 20 persons summoned as .jurors answered to their names, and the proponent moved the court to have 7 jurors summoned, which motion the court overruled, and had 12 jurors placed in the bos. There was no error in this. Section 6198 of the Code of 1907 provides that “from the persons so summoned and in attendance a jury shall be organized,” and there is no provision requiring 20 to be in attendance before the jury is formed. As to the order in which the challenges were required to be presented, our statute has not prescribed any order, and the authorities are clear to the point that this is a matter resting in the sound discretion of the trial court, and will not be revised unless there has been an abuse of that discretion to the injury of the party complaining. — Wilson v. State, 31 Ala. 371, 375; Barker v. Bell, 49 Ala. 284, 291; Scheiffelin v. Scheiffelin, 127 Ala. 14, 33, 28 South. 687; Hodge et al. v. Ramo, 155 [262] Ala. 175, 176, 45 South. 678; Gravely v. State, 45 Neb. 878, 64 N. W. 452; 1 Thompson on Trials, § 94, p. 91; 24 Cyc. 365; 12 Ency. Pl. & Pr. 501. We cannot say that it was such an abuse of the discretion reposed in .the court as to constitute reversible error. The next assignment of error insisted on is the refusal of the court to give charge E requested by the proponent. When a charge contains several distinct alternative propositions, each alternative must be correct, in order to place the court in error for refusing the charge. If the testatrix did not execute the will at all, as contended by the contestants, by reason of not being in a condition to know what was being done, by some one else holding her hand, it could not be said to be “executed” with all the formalities required by law. The first proposition, as stated, was at least misleading. Without discussing the other alternative propositions, this is sufficient to authorize the court’s refusal to give the charge. There was no error in refusing to give said charge. The court erred in giving charges 4 and 22, at the request of the contestants. Said charges fail to state that the contradictory statements, by a witness, which the jury are authorized to consider, must be in reference to a material fact. — Crawford v. State, 112 Ala. 4, 11, 25, 21 South. 214; 7 Ency. Ev. 78, and cases cited. Charge 5, given at the request of the contestants, invades the province of the jury, and should have been refused. There was no error in giving charge 6, at the request of the contestants. • Chage 7 should have been refused, as it assumed the disputed facts, that she signed the will and requested Lee to witness it. [263] It is difficult to give any grammatical construction to charge 8, given at the request of the contestants. If it means that being under the influence of morphine or •opiates (without regard to the degree of influence) rendered her mentally incompetent, it is not correct. • If it means, if the jury believe that being under the influence, she was also mentally incompetent, that would be referring to the jury the determination of a legal question, without explaining to them what constitutes mental incapacity to make a will. We hold that the charge ■should have been refused. The witness T. C. Farris, on the part of the proponents, testified to facts tending to show the mental capacity of the testatrix. On cross-examination, he was asked, “if he did not, after his return to his home in Prague, Okl., write to his father, John M. Farris, at Florence, that one of his (witness’) neighors out there liad told him, witness, that if the will of Mrs. Higgins was defeated, he might have- to pay the money again ?” (referring t'o money he had paid the testatrix shortly before her death), to which he replied that he had not written such a. letter. The contestants placed upon the stand T. 0. Farris, who testified that he received a letter from his said son, T. 0. Farris after the death of Mrs. Higgins, and after his (T. C’.’s) return to Oklahoma, and said witness stated: “I have not the letter. I did not keep it. It has either been lost or destroyed.” He was then asked whether or not in that letter said T. 0. Farris had made the statement above set out. The objection to this question, and to any answer thereto-, is based on the propositions that “(1) the letter was the highest and best evidence of its contents; (2) that the letter had not been shown to the witness, ,T. C. Farris; and (3) that the matter sought to be elicited is immaterial. It will be noticed that the objection did [264] not really present the point that the loss of the letter had not been properly proved. The objection that the letter is the best evidence, and that it has not been produced, is no answer to a question predicated on the loss of the letter, which has been attempted to be proved. However*, as this question may come up- on the subsequent trial of this case, we treat it. It is a general proposition that a party offering secondary evidence must show that he has, to a reasonable degree, exhausted all means of locating the paper, and it is also stated that it must be shown that search, has been made of the place where the paper has been kept. —8 Ency. Ev. 850 et seq.; 17 Cyc. 543 et seq.; McGuire, Adm’r, v. P. & D. of Bank of Mobile, 42 Ala. 589, 592; Phoenix Ins. Co. v. McAuthor, 116 Ala. 659, 663, 22 South. 903, 67 Am. St. Rep. 154. We have had occasion to consider this principle at some length, citing Prof. Wigmore’s opinion that it is a matter which should be left to the discretion of the trial judge, and we stated that it is not sufficient for the witness to state “that he has not seen the paper and is satisfied that it is lost,” but that “it is necessary to show that search has been made in the place where the instrument was last seen or kept, or in the place where it is likely it would be found, if in existence” (Saunders v. Tuscumbia Roofing & P. Co., 148 Ala. 519, 521, 522, 41 South. 982) ; but it will be noted that the witness, in this case, states positively that he had not- the letter, that he did not keep it, axxd that it has been either lost or destroyed. If he did not keep it, it is difficult to suggest what place should be searched for it, in view of the further statement, not merely that he is satisfied, but that it is lost or destroyed. We think the proof of loss was sufficient.— Postel v. Palmer, 71 Iowa, 157, 32 N. W. 257, 258. [265] As to the objection to the immateriality of the evidence, great latitude is allowed on cross-examination to show any circumstance, though it might be otherwise immaterial, which has a tendency to show bias or interest on the part of the witness, which might influence his testimony.- — 3 Ency. Ev. 849, et seq. It is also true, as a general proposition, that if a witness, on cross-examination, be interrogated as to a matter wholly immaterial to any issue in the case, the party calling for such evidence is concluded by the answer and cannot impeach the witness by contradicting such answer.- — Carter A State, 133 Ala. 160, 32 South. 231. Yet a distinction has been drawn between irrelevant matter affecting the general character of the witness, and that which affects his credibility in the particular case, it being allowable to contradict his statements in the latter case. — Bullard & Wife v. Lambert, 40 Ala. 204, 211; McHugh v. State, 31 Ala. 317, 321; Fincher v. State, 58 Ala. 215, 219; Jones v. State, 141 Ala. 55, 58, 37 South. 390. See, also, Estes v. State, 140 Ala. 151, 37 South. 85. Referring back to what we have said in regard to charges 4 and 22, the manner in which the statements just disposed of may affect the witness’ credibility does not rest on his making contradictory statements, but on the fact, if the jury so believe, that he is to some extent interested in the result of the suit The objections to the testimony of John M. Farris were properly overruled. • The decree of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and McClellan and Mayfield, JJ., concur.