The crime for which the defendant was convicted was for willfully and corruptly swearing falsely upon the trial of a divorce action, in which Everett M. Crandall was plaintiff and Adelia R. Crandall defendant, to the effect that he had seen Everett M. Crandall in company with George Peckham in a house of prostitution, at Coleville, kept by one Jeannetta Yorkie, with whom Crandall made arrangements for illicit intercourse upon his paying three dollars.
On the trial George Peckham was sworn as_ a witness on behalf of the people, and gave evidence to the effect that this testimony of the defendant in the divorce action was entirely false and untrue. After the people had rested Peckham was again recalled by the defendant, and was asked: “ Did you, on the occasion of the trial of the Crandall case, at Norton & Church’s office, when Allen Peckham had asked you if you had not previously told him that you and'Mr. Crandall did visit a house of prostitution in Coleville, and that you had loaned Crandall two dollars, and afterwards one dollar to go up stairs with a girl, say that you might have said so; that you did a great many things that you could not now recollect % ” This was objected to by the district attorney. The objection was sustained and exception taken by the defendant.
It appears to us that this evidence should have been admitted. It bears upon the vital question at issue. The defendant has been convicted of the crime chiefly upon the testimony of Peckham. If he could have shown that Peckham had made statements to the effect that the defendant’s testimony was in substance true, or if he even admitted that he might have made such statements, but could not recollect, it would have an important bearing upon the credibility of the witness, and the amount of faith arid credit that the jury should place upon llis testimony. This question was proper on cross-examintiop,, and should have been then asked, and,’ perhaps, it was within the discretion of the trial court to exclude it at this 'time, but it was not objected to on this ground, and it is the general practice in criminal trials in case the defendant or counsel has overlooked or forgotten evidence, to allow reasonable, even liberal, latitude in permitting it to be called out. The evidence excluded might have been important to the defendant. It might have satisfied the jury that Peckham’s *645testimony was unreliable and should not be believed. Section 527 of the Code of Criminal Procedure, among other things, provides that the Appellate Court may order a new trial, if it be satisfied that justice so required, whether any exceptions shall have been taken or not in the court below. We can but feel that under the circumstances the trial court should have permitted the question to be answered, and believing that the defendant has been deprived of important testimony, we are of the opinion that a new trial should be had.
Question was also made in reference to the competency of the evidence as to the defendant’s intimacy with Crandall’s wife. It, however, appears to us that this evidence was properly received by the trial court as tending to show a motive on the part of the defendant for doing that which he has been convicted of doing.
The judgment and conviction are reversed and new trial ordered, and for that purpose the proceedings are remitted to the Court of Sessions of Alleghany county.
Smith, P. J.; Barker and Bradley, JJ., concurred.Judgment and conviction reversed and new trial ordered, and for that purpose proceedings are remitted to the Court of Sessions of Alleghany county.