I dissent, being unable to agree with the conclusion reached in the matter discussed under paragraph 7.
I think the refusal of the court to allow defendant to *179recall the witness, Christopher, for the purpose of laying the foundation for his impeachment, was an abuse of discretion which denied the appellant his right to a fair and impartial trial. Christopher’s evidence, much more strongly than did Richardson’s, indicated that the killing was willful, deliberate, and premeditated. If that evidence was false, if it could be established to the satisfaction of the jury that Christopher did not witness the occurrences he described, or if his testimony could be legally discredited by showing that he made contradictory statements regarding the facts, a man on trial for his life should not have been denied the important right of proving it. If it does not appear affirmatively that Christopher was present at the time permission was asked, still the presumption is that he was within call, since the subpoena commands his presence during the trial of the cause, and it does not appear that he had been excused. To the contrary, it does appear that he was afterward recalled by the prosecution. It is true that defendant did not then attempt to ask the impeaching questions, but the reasons are obvious. He had once asked the privilege, which under the circumstances amounted to a right, of examining the witness upon these matters, and had been denied. He was not to expect that a different result would follow another application. He could not with propriety have asked the questions as tending to impeach the witness upon the evidence he had last given, as that evidence did not bear upon the occurrences of the killing to which Christopher had declared he was an eye-witness, and upon which alone it was sought to impeach him.
Beatty, 0. J., concurred.