The rehearing in this case was granted because of our ruling on bill No. 5. We felt, in granting the rehearing, that the ruling *Page 1019 we then made was due to a misconception of the bill. Our further consideration of the bill leads us to the conclusion that we did misconceive it, and that this misconception led us into error. The bill, so far as pertinent to the question to be considered, reads as follows:
"Be it remembered, that on the trial of this cause, the district attorney asked that the testimony taken in the trial of an annulment suit filed by defendant in this case against the prosecuting witness be read to the jury.
"Defendant, through his counsel, objected to the reading of the testimony taken in the trial of the civil case for the reason that the testimony was immaterial and irrelevant hearsay and was not used to impeach any witness on the stand; could not be in rebuttal of anything that was introduced in this case and for the further reason that the court selected only the testimony of state witnesses which was given on the trial of the civil suit and the reading of the testimony could not act but to bolster the testimony of the same witnesses given on the trial of this case.
"Whereupon, the court overruled defendant's objection; selected certain parts of the testimony which had been given by the state witnesses on the trial of the civil case and permitted the clerk to read that testimony to the jury."
When the bill was tendered by the defendant's counsel to the assistant district attorney before its presentation to the judge for signature, the former wrote across it the *Page 1020 following, which, inasmuch as it was expressly approved by the trial judge, forms part of his per curiam, to wit:
"All the evidence actually permitted to be introduced was in direct rebuttal of defendant's attempt to show that the state witnesses had testified differently in the trial of the civil case for annulment, and was in explanation. Counsel for defendant openly charged on cross examination of the state witnesses that they were testifying differently in this case than they had in the civil case. The evidence in the civil case was, therefore, offered to show that this contention was not correct."
The trial judge, in a lengthy per curiam, says (so far as it is necessary to quote it to bring out the question before us) that:
"The statement of the assistant district attorney is correct.
"Harvey Patterson, (the accused), after marrying Mary Franklin, brought suit to annul the marriage. Mary and, perhaps, all the other witnesses who testified in this suit, civil suit, were witnesses in the criminal prosecution.
"When counsel for the defendant attacked the testimony of some of the state's witnesses, asking them if they had not testified differently in the civil suit, the state was allowed to introduce evidence of these same witnesses, given in the civil suit, but only on the points, on which counsel for defendant claimed their testimony differed.
"In questioning the state's witnesses, counsel for defendant would first examine the witness on a certain point, then ask if he *Page 1021 had not testified differently in the civil case, and in every instance he wound up by asking the witness if he did not say a certain thing in the civil suit, sometimes reading from the civil record.
"The state offered all the evidence of the witnesses taken in the civil case, but I permitted him to introduce and read to the jury only those parts of the evidence in the civil case that were asked about by counsel for defendant, which testimony of the state's witnesses in the criminal case was attacked."
It should be observed here that before the parts of the evidence in the civil case, which the trial judge deemed admissible, were permitted to be read to the jury, the correctness of the transcript of the evidence in the civil case, which included the parts offered, was established by the evidence of the court stenographer.
From the foregoing it appears that the question we are called upon to decide is whether or not it is permissible, where the defendant undertakes on cross-examination to discredit a witness for the state by questioning the witness as to his testimony, given in another case, or his failure to state a certain fact, and refers, it might be said, to the transcript of the evidence, sometimes reading from it, in so questioning the witness, for the state to offer in rebuttal of defendant's effort to discredit the witness all parts of the evidence relevant to the point of inquiry? In deciding this question, it may be said that the particular questions propounded by counsel for the defense and the answers thereto in the case on trial were not brought up, and *Page 1022 therefore we must look to the per curiam of the trial judge to ascertain their nature and character.
It is manifest that defendant opened the door for the introduction, by the state, of the parts of the evidence bearing on the point of inquiry. It would seem reasonable that the state should have the right to offer in rebuttal of defendant's effort, for the purpose of explanation and of showing what its witnesses did testify to, those parts of their evidence relevant to the point inquired about by defendant, to the end that the jurors might have before them, in passing upon the credibility of the state's witnesses, not only what they testified to in the case on trial, but what they testified to in the civil case. Such a course would have the effect of placing the jurors in position to determine whether or not there were conflicts between the evidence of these witnesses, given on the trial of the civil case, and that given on the trial of the present case. Since the purpose of the parts of evidence offered by the state was not to show the guilt of the accused, but to place the jury in position to determine intelligently and in the best possible manner whether or not the conflicts contended for existed, in passing on the credibility of the witnesses attacked, the evidence did not violate section 9, article 1 of the Constitution of 1921, relative to the right of the accused to be confronted with the witnesses against him.
Whenever either party to a case, whether it be a civil or a criminal case, undertakes to impeach a witness of the opposite party by showing that he is testifying differently from what he testified to in a prior case, it is *Page 1023 proper for the party, whose witness is sought to be impeached, to offer so much of the evidence, taken in the prior suit, as is relevant to the point of inquiry, for the purpose of placing the witness in a proper light before the jury. This appears, it may be said, to be the rule in other jurisdictions, and it is the rule here. Thus in Huntley v. Territory, 7 Okla. 60, 54 P. 314, it is held, quoting from the syllabus, that:
"Where the defendant, for the purpose of impeaching a witness by showing contradictory testimony given by the witness upon a former trial of the case, offers in evidence extracts from the witness' former testimony, reading the same from the official transcript, it is not error for the court to permit the prosecution to read to the jury from said transcript all the testimony of said witness in relation to the facts involved in the alleged contradiction, for the purpose of rebutting such attempted impeachment."
A similar doctrine was held in Lowe v. State, 97 Ga. 792, 25 S.E. 676; Clymer v. Commonwealth (Ky.) 64 S.W. 409; State v. Fairlamb, 121 Mo. 137, 25 S.W. 895; Thornton v. State (Tex. Cr. App.) 65 S.W. 1105; Kemper v. State, 63 Tex.Crim. R.,138 S.W. 1025; State v. Soileau, 173 La. 531, 138 So. 92.
There is no complaint evidenced by any bill of exceptions, that all of the relevant evidence on the point was not read to the jury. It is needless to say that the evidence offered was not hearsay, but was what the witnesses testified to in the civil suit. As to the remaining bills, there is no error in our original opinion. *Page 1024
Our original decree is set aside, and the judgment appealed from is now affirmed, reserving to defendant the right to apply for a rehearing.
BRUNOT, J., dissents.
ST. PAUL, J., absent on account of illness, takes no part.