Dissenting. I cannot concur with my brethren in the conclusions of law to which they have arrived in this case. It seems to me that the rule laid down in relation to the impeachment of a witness by proof of different statements made out of court from those made upon the stand, is too limited, and if rigidly applied in all cases would seriously impair, if it would not destroy, the utility of that mode of impeachment. It seems to me, (although the bill of exceptions is exceedingly awkward and confused) that the subject matter, time and place of the inquiry put to the witness was sufficiently specific to command the attention of the witness, and sufficiently suggestive of detail to preclude mistake or forgetfulness, and ought to have been answered.
Besides, it should be borne in mind that the witness stood in the place of an accomplice, and hence great latitude should have been given on cross examination. Here was presented the disgusting spectacle of the husband becoming the prosecutor of the defendant for adultery with his wife, and calling upon the wife, the sole witness to the corpus delicti, to sustain the prosecution. Under such circumstances it is submitted that the sphere of cross-examination should not have been too critically circumscribed, but that all the tests of truthfulness which the law has provided should have full scope. Although the jury had the right to convict, and in this instance did convict under proper instructions, yet under such circumstances the most searching cross-examination might sometimes fail to protect the innocent againsc a thorougly planned conspiracy.