1. verdict should find ¿gfree of mur(after stating the facts.) As to the first . ground ot motion tor new trial, we are unable to see anything in section 2284, Mansfield’s Digest (which requires juries in the trial of cases of murder to find the degree of murder) inconsistent with sections 254, 255, 259 and 260 of the criminal code, as originally numbered, or with any other section of same ; and while there may be a difference of opinion as to whether or not the code, in attempting to cover the whole ground of our criminal procedure, may not contain a provision tantamount to this section 2284 of the Digest, yet it must be confessed by all'that the'latter is more explicit, direct and definite than anything to be found in the code on the subject. We are of the opinion that the statute in question is not inconsistent with anything in the code, and further, that it is not repealed by implication. Besides, it has been so long recognized, acted upon and treated without question or controversy, as the law, and has in fact become so fixed and established as a part of our criminal jurisprudence that we should be loth to dispense with its most excellent use in our criminal practice. Thompson v. State, 26 Ark. 323 ; Trammell v. State, 26 id. 534; Neville v. State, 26 id. 614 ; Ford v. State, 34 id. 649 ; Allen v. State, 26 id. 333 ; Porter v. State, 57 id. 267. We are of opinion, therefore, that this ground of the motion for a new trial was well taken, and should have been sustained.
% Admission. of deposition. The admission of the deposition of the deceased wit- . ness, bailie Hannibal, without some proof that the fendant was present and had the privilege of cross-examination, when her statement was made and taken down by the justice of the peace, we think, was improper. We do not think that the mere use of the heading “Cross-examination” and “Re-direct-examination” employed by the person taking down the statements, is sufficient to establish the fact that the defendant was present, and cross-examined the witness. We are of the opinion, however, that the certificate of the justice of the peace, made in obedience to the law on the subject, is a sufficient authentication and proof of the fact that such was the substance of the testimony of the witness as given before him on the occasion, to make the deposition -prima facie at least. Had his certificate shown that the defendant was present, or had that fact been shown by any other competent testimony, the deposition would have been admissible, in accordance with the rule adhered to in many decisions of this court. Hurley v. State, 29 Ark. 22 ; Shackleford v. State, 33 id. 539 ; Dolan v. State, 40 id. 461 ; Sneed v. State, 47 id. 180. The third ground of the motion for new trial was, for the reason stated, well taken and should have been sustained.
3. Proving former statements of witness. ’ As to the refusal of the court to admit testimony to bolster up the testimony of witness Hugh Estelle, which furnishes the ninth ground for the motion for new trial, the court can only state the rule (or rather an exception to the rule) to be that where an effort by the opposite side is made to impeach the witness under certain circumstances and on certain grounds, evidence is admissible to show that former statements of the witness, either under oath or not, were similar to those he makes on the trial. Henderson v. Jones, 10 S. & R. (Pa.) 322; State v. George, 8 Ired. (N. C.) 324 ; Cooke v. Curtis, 6 Harris & Johnson (Md.), 93 ; Coffin v. Anderson, 4 Blackford (Ind.), 395.
The court cannot, however, rule on the point, except to sustain the court below, for the reason, that the bill of exceptions as copied in the abstract of counsel, or in the transcript, as we have been, able to find, does not show how or by whom the witness was attempted to be impeached.
4. Evidence -iml?of;,omt We think the tenth and eleventh grounds were well taken. Upon the theory of the State that the murder was committed by the two Carpenters, the parts of the testimony of Sallie Hannibal and W. O. Carpenter which the court below refused to admit could not have been prejudicial to the State, as we view it, and since, upon its theory, it was a joint murder, anything bearing upon the case of one, we think, might have been admitted, provided it was not inadmissible upon other grounds.
The appellant complains that the tenth instruction given by the court at the instance of the State is inconsistent with — in fact, completely at war with — one and two given by the court at the instance of the defendant. It seems that one and two were given first, and hence the propriety of the saying that ‘ ‘ number ten is at war with numbers one and two.” Under the state of facts in the case, and the various therories predicated thereon, there is an obvious repugnancy, but we are inclined to find less fault with number ten than with numbers one and two, but since the error, viewing it in this light, was not prejudicial, at least could not have been objected to by the defendant, we make no ruling to affect this appeal, but only by way of suggestion that a more successful effort to harmonize the instructions may be made in the further proceedings in this behalf.
For the errors of the court below, pointed out in the foregoing opinion, the judgment is reversed, and the cause remanded for further proceedings.
Justices Hughes and Wood did not participate herein.