Appellant files an able and interesting motion for rehearing in which it is first insisted that our disposition of his bill of exceptions No. 4 was erroneous. We have carefully examined said bill and the authorities cited, and notice the various contentions made. The wife of appellant was a witness for him on his trial in November, 1927, concerning an offense alleged to have been committed in April, 1927. Bill of exceptions No. 4, as appears *Page 394 in the original opinion, relates to certain questions propounded to the said wife while on the witness stand in this case. All we learn from said bill is that she was before a grand jury of the county during the week preceding this trial presumably to testify against appellant for some matter which had occurred after he was indicted for the offense here on trial, and was asked on cross-examination while such witness if she had not testified before said grand jury that she knew absolutely nothing in connection with this case (evidently meaning the case on trial). She said she did not remember, and when asked again if she swore that she did not make such statement, she said she did not know. When a wife becomes a witness for her husband she is subject to cross-examination and impeachment as any other witness, and it may be shown that at other times and places she has made statements which are in conflict with her testimony in the case on trial, and this proposition seems true whether she had made the contradictory statements in court or elsewhere. Applying this to the facts as shown in this bill, we hold, first, that it was not shown by her testimony whether she testified to such facts before the grand jury or not; second, that if it had been shown that before said grand jury she testified that she knew nothing in connection with the matters involved in this trial, this would have been admissible and pertinent to contradict her testimony given upon this trial as to things favorable to her husband, unless the bill of exceptions had gone further and shown that such statements were made by her as a result of improper questioning, or that the same were not voluntary, or that she was in some way forced or compelled to make such statements. It is unquestionably true that sometimes we are not quite as careful in our statements as we ought to be. The fact that this woman may have been taken before a grand jury shortly before this trial, under process, and that while there she made statements relating to the instant offense which were at variance with her testimony given on this trial, — would not constitute a showing sufficient to reject proof of what she then said. This is plain. To illustrate: Suppose she had been taken by process before the grand jury just before this trial to inform them of some occurrence, and while before such grand jury she had volunteered the information that she knew nothing connected with the offense charged against her husband in April, 1927. This court would certainly not hold on these facts that if she got on the witness stand when her husband was on trial for the April transaction, and swore she was present and knew all about it, the State might not prove her statement so made before *Page 395 the grand jury as aforesaid. If she had given testimony as to material facts connected with the April transaction, the State might prove, if it could, that she had made a statement to any person, whether within a few days or months or years, to the effect that she knew nothing of such transaction. The fact that she made such statement while a witness in court somewhere, or while before the grand jury, would not change its force or effect as contradicting her testimony given on this trial, and in order to have same rejected when offered by the State, the bill of exceptions must show that her former statement was improperly made and surrounded.
None of the cases cited by appellant go as far as he seeks to have us go here. The rule is well settled that each bill of exceptions must manifest the error therein complained of. This one does not do so. Our former holding was correct.
We have examined with interest all the motion for rehearing, — have looked to bills Nos. 3 and 3a and others, with the result that we are confirmed in our conclusion that it is shown that the search in the instant case was with the consent of appellant. We do not believe bill of exceptions No. 11, when considered with the qualification of the court, as same appears without exception thereon, shows any error. While it is to be expected that the courts will always treat courteously the attorneys before them, it will be equally expected that the attorneys will remain in the record when discussing cases before the courts.
Finding no error in the original opinion, the motion for rehearing will be overruled.
Overruled.