aroused and refreshed by these details he may be able to show that he was honestly mistaken on the former occasion, or that the persons then present misunderstood or misquoted him. The impeached witness ought to be permitted, in giving his evidence, to state any facts which will explain or reconcile the seemingly inconsistent utterances or show their relation to one another and the meaning and purpose of each.31

If the witness declares he does not remember making the contradictory statements, he may be contradicted at once, without further foundation for their introduction.$2

If the witness admits that he made the contradictory statements it is not then competent to prove the statements by witnesses to whom they were made or who overheard them.3

33

Both the admissions and the confessions of the accused are admissible against him as a part of the evidence for the prosecution and as direct evidence of guilt, and not merely to contradict him when he testifies as a witness. Hence, the fact that he testifies as a witness and denies that he confessed or affirms his innocence does not render it necessary to lay a foundation before introducing any of his contradictory statements, which are in form or substance confessions and admissions, as in the case of other witnesses who are to be impeached by contradiction. On the other hand, if the accused is a witness, his confession is not admissible as a contradictory statement to impeach him if it would not be admissible as a confession.35

34

But if the accused, being a witness, expressly denies on crossexamination that on a prior occasion he had made an incriminating statement not already proven by the prosecution he may be

Bressler v. People, 117 Ill. 422, 8 N. E. 62; Henson v. State, 120 Ala. 316, 25 So. 23; Brown v. State, 46 Fla. 159, 35 So. 82.

22

Payne v. State, 60 Ala. 80; Wagner v. State, 116 Ind. 181, 184, 18 N. E. 833: Billings v. State, 52 Ark. 303, 12 S. W. 574; Levy v. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. 826; Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108; Smith v. State (Tex.), 20 S. W. 554; Jones v. State,

145 Ala. 51, 40 So. 947; Campos v. State, 50 Tex. Cr. 289, 97 S. W. 100. 33 Bice v. State, 51 Tex. Cr. 133, 100 S. W. 949.

34 Klug v. State, 77 Ga. 734; Lewis v. State, 91 Ga. 168, 16 S. E. 986; State v. Forsythe, 99 Iowa 1, 68 N. W. 446. In State v. Callahan, 100 Minn. 63, 110 N. W. 342, a foundation was required to be laid.

35 State v. Barrett, 40 Minn. 65, 74, 41 N. W. 459. See Underhill on Evidence, p. 509, note 4.

contradicted by the testimony of one who heard him. His incriminating statement being in form either a confession or an admission is properly a part of the case for the prosecution. He has a right to contradict it, of which he cannot be deprived by the fact that it is offered out of its regular order. It is error to refuse to permit him to attempt to show by other witnesses that he never made such an incriminating statement.3

37

And in conclusion we may say that the jury have a right to determine what effect upon the credibility of the witness they shall give to the statement. The mere fact of contradiction is not in law sufficient to justify a reasonable doubt of the truth of all the testimony of the witness in the minds of the jury.38

§ 239. Impeachment by contradictory affidavits, depositions and other writings.-The rules governing impeachment, by contradictory statements, as above set forth, are equally applicable whether the inconsistent declarations are oral or are contained in affidavits and depositions, or in publications by the witness on the subject to which his testimony relates.40

39

Thus the accused, when testifying, or any witness called in his behalf, may be contradicted by the evidence as stated by him in the affidavits which were made and used by the accused upon a motion for a continuance or postponement."

41

Contradictory statements contained in affidavits, depositions

36 State v. Constantine, 48 Wash. 218, 93 Pac. 317.

87

947.

38

'Jones v. State, 145 Ala. 51, 40 So.

40 Hartford v. State, 96 Ind. 461, 468. 49 Am. 185.

41

Snyder v. State, 145 Ala. 33, 40 77 Ga. 242, 3 S. So. 978.

39

'Gilyard v. State, 98 Ala. 59, 13 So. 391; State v. O'Brien, 18 Mont. 1, 43 Pac. 1091; United States v. Taylor, 35 Fed. 484. See also, Sullivan v. Jefferson, etc., Co. 133 Mo. 1, 34 S. W. 566, 32 L. R. A. 167; Fein v. Covenant &c. Assn., 60 Ill. App. 274; State v. Cater, 100 Iowa 501, 69 N. W. 880; People v. Smith, 114 App. Div. 513, 100 N. Y. Supp. 259; State v. Jennings, 48 Ore. 483, 87 Pac. 524.

Commonwealth v. Starr, 4 Allen (Mass.) 301, 302; Fledger v. State, E. 320; State v. Hayes, 78 Mo. 307; People V. Sweeney, 55 Mich. 586, 590, 22 N. W. 50; Weaver v. State, 83 Ark. 119, 102 S. W. 713. In Behler v. State, 112 Ind. 140, 13 N. E. 272, the court says: "There is nothing giving to the statements in an affidavit for a continuance of a privilege; nor is there anything which impresses upon them any compulsory or confidential feature. The affidavit is a paper belonging to the files, public in its character and freely executed."

and other formal judicial documents are obviously to be considered from a different point of view, so far as their impeaching character is concerned, than oral statements.

In the case of contradictory writings, it is manifestly unfair to the witness to confront him with an affidavit or other paper couched in formal and technical phraseology. The language of the document is usually not his. In a criminal trial the affidavit or other legal instrument is usually prepared by the clerk of the court, as, for example, in the case of a complaint or affidavit on a preliminary examination, and, though the affidavit or deposition may have been read over to the affiant before he signed it, by the person whom the witness trusted; or whose duty it was to frame his ideas in proper words, he may have most likely wholly misunderstood the true meaning of a writing couched in such technical, and to him novel and unusual, language.*2

These considerations ought to be kept in view when the affidavit or deposition of the complaining witness, taken down by the clerk of the court, as a basis for issuing a warrant for the arrest of the accused, is employed to contradict the witness at the examination before the magistrate or at the trial.13

43

3 Commonwealth v. Snee, 145 Mass. 351, 14 N. E. 157. A proceeding against an alleged criminal may be begun by four methods. The party aggrieved may give information to the public prosecuting officer, who prepares an indictment and brings the evidence orally before the grand jury. The accuser may file a written complaint on oath before a magistrate who issues a warrant, followed by the preliminary examination and the possible holding of the accused for the action of the grand jury. The grand jury may act upon the knowledge of any of its members that a crime has been committed and make a presentment against the accused. The prosecuting attorney may file an information with the grand jury.

The most common mode is that of filing a written complaint with the examining magistrate followed by a preliminary examination. It is usually necessary that the complaint shall be sworn to before the examining magistrate, but not necessarily written out by him. The clerk, if any, of the justice of the peace or other examining magistrate usually prepares the complaint and affidavit. If there be no clerk the complaint is prepared by the magistrate himself. Except perhaps in the cities, the magistrate is rarely an attorney and even in the cities the clerk is usually a layman. It follows that complaints are often carelessly and unskillfully drawn, omitting material facts and including much that is immaterial; and by reason of lack of intelligence or for other causes, the statements of the

§ 240. Contradictory writings must be shown to the witness who is to be impeached.-The writing by which it is proposed to contradict the witness must be shown him on his examination so that he may read it, or it may be read to him. He must be asked if he wrote it or signed it, and if he admits this his attention must then be called to the inconsistencies. If he admits that he wrote or

45

signed it, the whole ought to be read to the jury as the best evidence of what the writing contains. If he denies that he is the author, the fact that he wrote it may be proved by proper evidence. The stenographer who took down the testimony of a witness at a former trial to impeach the witness may read from his notes if he will swear that they are accurate, the witness having first been asked if he has testified on the former trial.**

§ 241. Contradiction of irrelevant matters not permissible— Proof of confirmatory statements.-The rules above discussed. regulating the introduction of inconsistent declarations for the purpose of contradicting a witness, permit him to be contradicted only as regards matters relevant to the guilt or innocence of the prisoner. Where the witness is confronted with contradictory or inconsistent declarations made out of court and pertaining solely to irrelevant matters, and denies that he is their author,

accuser may be incorrectly understood and transcribed by the clerk. So, also, in haste the clerk may omit to read the complaint and procure the signature of the accuser to statements of which he had no knowledge. These facts should be taken into consideration on a criminal trial where the prosecuting witness is confronted with contradictory statements in or omissions from his complaint before the examining magistrate.

"Gemmill v. State, 16 Ind. App. 154, 43 N. E. 909; Floyd v. State, 82 Ala. 16, 2 So. 683; People v. Ching, 74 Cal. 389, 16 Pac. 201; Cooper v. State, 90 Ala. 641, 8 So. 821; State v. Crow, 107 Mo. 341, 17 S. W. 745; State v. Steeves, 29 Ore. 85, 43 Pac. 947; State v. Callegari, 41 La. Ann.

578, 581, 7 So. 130; Cole v. State, 59 Ark. 50, 26 S. W. 377; Gunter v. State, 83 Ala. 96, 3 So. 600; State v. Leeper, 70 Iowa 748, 751, 30 N. W. 501; State v. Baker, 136 Mo. 74, 37 S. W. Rep. 810. The testimony of a witness, taken before a magistrate, or at a coroner's inquest reduced to writing and signed by the witness, is not admissible unless it is first shown to him and his attention called to the inconsistencies. Simmons v. State, 32 Fla. 387, 13 So. 896; State v. O'Brien, 18 Mont. I, 43 Pac. 1091, 44 Pac. 399.

For numerous civil cases illustrating this rule see Underhill on Ev., pp. 510-512.

his replies are conclusive. He cannot be contradicted on that point by the party seeking to impeach him. The cases are not harmonious upon the question whether, after it has been shown that a witness has made contradictory statements out of court, it is permissible to prove upon his re-direct examination that he has made other statements which are consistent with and confirmatory of his testimony. The majority of the cases maintain the negative.48 When, however, it appears that the witness is probably biased in favor of the party calling him because of his relation to him, or on account of his relation to the crime which is under investigation, it may be shown that, before such relation existed, the witness made statements confirmatory of his testimony now given in open court. 48

§ 242. Previous silence as impeachment.-A witness may be impeached, not only by his contradictory or inconsistent state

"Crawford v. State, 112 Ala. 1, 21 So. 214; State v. Conerly, 48 La. Ann. 1561, 21 So. 192; Wilson v. State, 37 Tex. Cr. 64, 38 S. W. 610; Reynolds v. State, 147 Ind. 3, 46 N. E. 31; State v. Brown, 100 Iowa 50, 69 N. W. 277; Carter v. State, 36 Neb. 481, 54 N. W. 853; Hill v. State, 91 Tenn. 521, 19 S. W. 674; State v. Morris, 109 N. Car. 820, 2 Am. St. 415, 13 S. E. 877; Commonwealth v. Jones, 155 Mass. 170, 171, 29 N. E. 467; Commonwealth v. Fitzpatrick, 140 Mass. 455, 5 N. E. 272; Welch v. State, 104 Ind. 347, 351, 3 N. E. 850; Ford v. State, 112 Ind. 373, 384, 14 N. E. 241; Huber v. State, 126 Ind. 185, 189, 25 N. E. 904; People v. Greenwall, 108 N. Y. 296, 15 N. E. 404; State v. Dunn (Oreg. 1909), 99 Pac. 278; Henson v. State, 120 Ala. 316, 25 So. 23; State v. Teachey, 134 N. Car. 656, 46 S. E. 733; Dillard v. United States, 72 C. C. A. 451, 141 Fed. 303; Justice v. Commonwealth, 20 Ky. L. 386, 46 S. W. 499; McKnight v. State, 50 Tex. Cr. 252, 95 S. W. 1056; People v. Turner, 1 Cal.

App. 420, 82 Pac. 397. A witness cannot be impeached by showing that out of court he had expressed suspicions of the prisoner, or an opinion of his guilt, which he denies on cross-examination. Welch v. State, 104 Ind. 347, 351, 3 N. E. 850; People v. Stackhouse, 49 Mich. 76, 77, 13 N. W. 364; Commonwealth v. Snow, III Mass.

411.

48 Sentell v. State, 34 Tex. Cr. 260, 30 S. W. 226; Goode v. State, 32 Tex. Cr. 505, 24 S. W. 102; Williams v. State, 24 Tex. App. 637, 7 S. W. 333; Feople v. Doyell, 48 Cal. 85; Connor v. People, 18 Colo. 373, 33 Pac. 159, 36 Am. St. 295; Fallin v. State, 83 Ala. 5, 3 So. 525; State v. Flint, 60 Vt. 304, 14 Atl. 178; Lowe v. State, 97 Ga. 792, 25 S. E. 676; Holmes v. State, 52 Tex. Cr. 352, 106 S. W. 1160; Burks v. State, 78 Ark. 271, 93 S. W. 983; State v. McDaniel, 68 S. Car. 304, 47 S. E. 384, 102 Am. St. 661; State v. Houghton, 45 Oreg. 110, 75 Pac. 887; Rice v. State, 50 Tex. Cr. 648, 100 S. W. 771; Lounder v. State, 46 Tex. Cr.