¶1On certiorari the Supreme Court held that we were in error in ordering a reversal of the judgment below. The cause has been remanded to this court for further consideration.
¶2On the original submission of the case it was insisted that the solicitor was allowed, over timely objections, to impeach one of the State's witnesses. We entertained the view that this situation will not likely reoccur at another trial, so we did not respond to it.
¶3The witness in question testified at a former trial of the cause.
¶4On cross examination in the case at bar the witness gave evidence that was in some aspects at variance with his testimony previously given.
¶5On redirect examination the solicitor asked the witness several questions with reference to his former testimony. In these queries the attention of the witness was directed to certain specific replies to questions, and the solicitor inquired whether or not these answers were made.
¶6After objections were overruled the witness did not admit he made the replies. He either stated that he did not or that he did not remember.
¶7The matter was not further pressed. That is to say, the solicitor did not make any attempt to prove that the witness did testify to a different state of facts at the former trial.
¶8A fair interpretation of the record incident to this inquiry leads to the conclusion that the prosecuting officer was not attempting to lay predicates for impeachment purposes. It is true that he did not expressly announce a surprise, but unquestionably he realized the disadvantage which had inured to State by this unexpected departure and variance in the testimony of the witness.
¶9Our authorities are committed to the view that a party has no right to impeach his own witness, nor to show contradictory statements made by the witness. This rule, however, does not prohibit a party, when taken by surprise, or for the purpose of refreshing memory, to ask his witness whether or not he had made certain previous statements which were inconsistent with his present testimony.
¶10We think that our review should be made from this approach, rather than to hold that there was effort made by the solicitor to impeach a State's witness.
¶11Clearly the prosecuting attorney should have been given the privilege to attempt to clarify the inconsistencies that had developed by calling the attention of the witness to his former testimony and refreshing his recollection therefrom if possible. The following authorities support this view: Campbell v. State, 23 Ala. 44; Hemingway v. Garth, 51 Ala. 530; Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Louisville N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572; Duncan v. State,20 Ala. App. 209, 101 So. 472; Griffith v. State, 90 Ala. 583,8 So. 812. *264
¶12In our original opinion we responded to all other questions which merit discussion.
¶13It follows that on the authority of Jarrell v. State, Ala.Sup., 50 So.2d 774, the judgment below is ordered affirmed.
¶14Affirmed.