I dissent. The witness Dolan called by the prosecution testified that he knew nothing about the killing-of the animal for the killing of which the defendant was accused, except what was told to him by Prentice, a witness for the prosecution. Upon the statement of the attorney for- the prosecution, that the witness -appeared- to be “hostile,” the court permitted the.examination of the witness as to statements made by the witness out of court. I think these questions were sufficiently objected to, even though the language of defendant’s attorney in making the objections was perhaps technically inexact. The counsel objected to one question which contained a direct leading question, asking the witness if he had not witnessed the killing of the cow about the 24th of August, 1892, at a certain place named in- the question, and *450a question as to the statements of the witness to that effect made to the examining attorney out of court, specifying the ' time and place of the statements and who were present. This question was objected to partly upon the ground that “that it is the fact and not what witness may have stated to the State that the jury are to take evidence upon.” When the witness answered the first part of the question, and said that he did not witness the killing of the animal, counsel for the State asked him to “answer the rest of the question,” and no objection was taken to that. I think that this reason for holding that the question was not objected to properly is purely technical. There were three conversations brought to the attention of the witness, at which he admitted that he made statements to the examining counsel and others inculpating the defendant, inconsistent with his testimony that he knew nothing about the affair. He testifies in court, in response to the question of the attorney for the defendant, that all these statements were untrue.’ A party may have the right to contradict his witness who unexpectedly testifies against him, by cross-examination, as to what he had stated in regard to the matter on a former occasion, either in court or otherwise, and thus refresh the memory of the witness, and give him full opportunity to set the matter right if he will, and, at all events, for the purpose of setting the party right before the jury. 'But this cannot be done for the mere purpose of discrediting the witness.' Greenleaf on Evidence, sec. 444á, a note to the statement of the author. Com. v. Welsh, 4 Gray, 535. This in effect is the rule'announced in Bullard v. Pearsall, 53 N. Y., 230, where it‘is said that “such questions (as to previous declarations inconsistent with the evidence of the witness) may be asked for the purpose of probing his recollection, recalling to his mind the statements he has previously •made, and drawing out an explanation of his apparent inconsistency. This course of examination may result in satisfying .the witness that he is fallen into error and that his original statements were correct, and it is calculated to elicit the truth. It is also proper for the purpose of showing the cir.cumstances which induced the party to call him. Inquiries *451calculated to elicit the facts, or to show to the witness that he is mistaken and to induce him to correct his evidence, should not he excluded simply because they may result unfavorable to his credibility. * * * As a matter of course, such previous unsworn statements are not evidence, and when the trial is before a jury that instruction should be given.” It is stated in the syllabus to the opinion, and this is the doctrine of the case, that where the party cross-examines his own witness, and the sole effect of an affirmative answer to a question asked by such party will be to discredit the witness, the question is properly excluded, and this “rule is the correct one under the authorities. Such I believe to be the ruling in the case of Hurley v. State, 46 O. S., 320. Applying these rules to the case at bar, there was manifest error in the action of the court and counsel. Ho instruction or direction was given to the jury to the effect that such unsworn previous statements of the witness were not evidence. On the contrary, additional error was committed when the court, against the objection of the defendant, gave to the jury the following instruction: “The jury are instructed that they are to take an accomplice’s testimony with caution, unless it is corroborated by other evidence of facts and circumstances as proven at the trial. The corroborating evidence need not of itself be sufficient to show the commission of the crime nor connect the defendant with it, nor need it be wholly inconsistent with the theory of the defendant’s innocence; it is enough if it tends to connect the defendant with the commission of the crime.” This instruction was clearly erroneous. The only evidence that could possibly be considered that of an accomplice was the testimony of Dolan, and nothing in his testimony shows that he was connected with the crime. He rented the ranch of defendant near the scene of the killing and was occupying it when the alleged offense was committed, and was in company with the defendant when he met Prentice, a witness for the prosecution, who accused both of them of killing the cow. There was not even “slight” evidence that Dolan was an accomplice. With this instruction in the case, and in the absence of any instruction modifying it, or an instruction or direction *452to the jury not to consider the statements made by Dolan out of court, which he stated under oath were untrue, it is clear to my mind that the jury regarded such statements as ■ substantive evidence, and the evidence of an accomplice. In a doubtful case like this where the evidence was purely circumstantial, this was sufficient to turn the scale against the defendant. -It is not proper, in my judgment, to’ permit the prosecution to manufacture evidence in this way, or to get it before the -jury as evidence, without asking the defendant to explain his inconsistent statements, and without any direction to the jury to disregard such statements .as evidence. When instructions are given to the jury, all extraneous matter must be excluded from the ease, and no instructions should be based on an assumed fact not'in the record, and especially the judge should not state anything not in the proofs. Bishop’s blew Crim. Pro;, sec. 978, and cases cited; Clark’s Crim. Proc.,.464, et seq. ...
’ 'The fact that by legislation since the trial, a party is permitted to impeaeh his- own witness is ho reason for. upholding the -rule contended for in the majority opinion. The statute is not declaratory of the common law, but establishes a new rule of evidence; But even if it. could be applied to the case, at bar,-yet "there would be. error in the action of the court and- counsel in the ease' at bar. • This statute provides that a party producing a witness shall not be allowed to impeach his credit by evidence,of his bad. character, but may contradict him' by-other evidence, and may also prove that at other times he has made statements inconsistent' with his present testimony,-and-this rule applies to-criminal as well as-to civil causes.' Before the' proof last mentioned can be given, the circumstances of the supposed statements sufficient to designate'the particular occasion-as-near _as .may be-must be mentioned to the witness, .and he must be asked whether =or not he--made such statements, and, if so, “allowed to explain them.” Ch. 68, Sess. Laws-1895.' It seems that under this statute, the explanation of the inconsistent statements .must go with his testimony, and that it would not do to thrust upon- -the - defendant the burden of requiring an explanation *453from tbe witness. However, under tbe common law rule, in force at tbe trial of tbe ease, this explanation should have been required of tbe witness while be was being examined by tbe prosecution, in my judgment. This would be fair to tbe witness and just to tbe defendant. But independently of this,, it plainly appears in the record that the purpose of tbe prosecution was not to elicit tbe truth from tbe witness, as it was not attempted by tbe prosecution to get any explanation at all from him, and only withdrew its objection to bis explanation after all the statements bad gone to tbe jury. But aside from this unfair and prejudicial examination of the witness, the error of the court below is glaring. It should have directed tbe jury to disregard tbe previous unsworn statements of tbe witness Dolan, which were stated by him to be untrue. The authority cited in.tbe majority opinion shows this to be the .rule. Bullard v. Pearsall, supra. This error was only intensified by the action of the court in instructing the jury as to the evidence of an accomplice, when there was no evidence whatever given by an accomplice. The jury must have given these statements the force of evidence, under the instruction of the court, as these statements of Dolan would have made him an accomplice if hé had testified to their truth. The judgment of the district court should be reversed and the defendant awarded a new trial.