(dissenting). A reading of the whole record shows conclusively that it was taken as a conceded fact that the complainant was unmarried. If anything were needed to remove all doubt as to such -concession, it is to be found in an instruction given at defendant’s request, which announced “the issue to’ be determined” to be '.‘whether or not the defendant * * * is the father of the * * * child shown to have been born to the complaining witness.” The appellant should not now be heard to raise any question as to the sufficiency of proof of this conceded fact.
To support the holding that it was error to allow the physician to be inpeached by the testimony of other witnesses, my colleague has cited the case of State v. Davidson, decided by this court. My colleague has certainly failed to- correctly interpret the views expressed in that case, as the decision in that case fully supports the ruling of the trial co-urt in this case. It is well to note the difference in the situation presented in this case at the time of the cross-examination of the physician and that presented in either the Davidson Case when Hodgkins was cross-examined, or that in the Drake Case (quoted from in the Davidson Case) when the defendant’s son -was cross-examined. By calling the physician and introducing his testimony appellant raised an issue not collateral to, but directly hearing upon, the main issue of this case; he raised the issue of whether the complainant had made a statement which, if true, would throw 'doubt on the paternity of her child- — the sole question 'before the jury. The state had- a right to meet this issue by any competent proof, either through such direct testimony of complainant or -other witnesses as would- throw doubt on the truthfulness of the physicianls statement, or by direct impeachment of the physician. Any fact which a party would have a right to prove directly he can seek to establish through -cross-examination, and, if -disappointed in such cross-examination, then through -the impeachment of the witness cross-examined, by showing that such witness has, prior thereto, made statements inconsistent with his testimony in- chief. Such proof is not proof of something collateral to the issue, under the rule laid down by Sharswood and quoted in the Davidson Case) nor is the fact sought to be proven a collateral fact under the test of what is collateral as announced- in th-e leading case of Attorney *563General v. Hitchcock, i Exch. 99, which has been generally approved and adopted. Wigmore, § 1021. “The test of whether a fact inquired of on cross-examination is collateral is, Would the 'cross-examining party toe entitled to prove it as a part of his case tending- to establish his plea?” “Could the fact, as to' which the prior self-contradiction is predicated, have been shown in evidence for any purpose independently of the self-contradiction?” The fact sought to be established upon the cross-examination and by the examination of the impeaching witness was that complainant had never made statements to the physician which statements cast doubt upon the paternity of her child. That th.e matter sought to be proven on the cross-examination — namely, statements- by the witness inconsistent with his evidence in chief — was not collateral is virtually conceded by my colleague; he admits that if the statement in question had been a statement of fact and not of opinion it would have been a proper subject for cross-examination and a proper subject to form the basis for impeachment. It seems, therefore, that the real basis for his holding is the fact that the statement was one of opinion. He seems to have overlooked an important matter. In offering, for the purpose of impeachment, evidence of a statement of fact inconsistent with a witness’ sworn statement, the evidence is not necessarily offered for the purpose of proving the prior statement to be true, 'but merely for the purpose of leaving it doubtful as tO' which statement is true. In the same way a prior statement of opinion is not offered for the purpose of showing what the witness’ prior opinion really was, but to raise a doubt as to whether such statement correctly gave the witness’ opinion, or whether his evidence given on the stand was truthful. As is well said by Wigmore at section 1041, when discussing the question of impeachment by showing self-contradiction on the part of a witness:
“The usual case of this kind is that of a general statement upon the merits of the controversy, which is now offered against a witness who has testified to a -specific matter. Thus: A. testifies for the prosecution that he saw the defendant near the scene of the alleged arson; it is offered to show that he has elsewhere declared that he is sure that the defendant is innocent; is this admissible? The usual answer of some courts is that the declaration should be excluded because it is mere opinion.' Post, §'1918. *564This is unsound1: (i) Because the declaration is not offered as testimony (ante, § 1018), and therefore the opinion rule has no application; and (2) because the declaration in its opinion aspect is not concerned, and is of importance only so' far as it contains 'by implication some contradictory assertion of fact. In short, the only, proper inquiry can be, Is there within the broad statement of opinion on the general question some implied assertion of fact inconsistent' with the other assertion made on the stand? If there is, it ought to be received, whether or not it is clothed in or associated with an expression of opinion.”
I think the following test announced in Whipple v. Rich, 180 Mass. 477, 63 N. E. 5, to be commended:
“The question is whether the specific facts testified to lead so directly to a conclusion that it is obviously unlikely that a man will believe a contrary conclusion if he believes the specific facts.”
In Jones on Evidence, § 850, the author says:
“The question has often arisen whether a witness can be impeached as to specific facts stated in his testimony by proof of his general expressions of opinion as to the merits of the case or the parties. No fixed rule can be declared, and although such expressions of opinion are often rejected, yet in other instances where the opinion expressed seems inconsistent with -the belief of the witness in the truth of his testimony they may be received.”
Of course the statements which it is claimed the doctor made were not statements directly expressing the opinion that appellant was the father of the child, but were statements that could not honestly have been made except he believed him to be such father. There is no hard and fast rule as to what evidence is competent •for impeachment purposes — the only guide is human experience. One has a right to cast doubt on the veracity of the witness in order to weaken his testimony, and it may be done in any method which human experience has shown is fairly intended to rightfully effect such result. Common sense and all human experience teaches that an expression of an opinion, which opinion could not reasonably be based on a certain set of facts, is as .absolutely inconsistent with the known existence of such facts as would be a statement of such facts as would support such opinion; in other words, when the facts testified to by a witness lead so *565directly to a certain conclusion that the party testifying could not reasonably be justified in holding an opinion inconsistent therewith, evidence tending to show that he expressed such an inconsistent 'Opinion at a time when he claimed to be knowing to such facts throws just as much doubt on his veracity as would evidence that he had, at some time, made a statement of such facts as would support such former expressed opinion.
The facts of this case 'bring it peculiarly within the law announced in 7 Ency. Ev. 66:
“An assailed witness’ previous statement, showing a state of mind at variance with that which would likely be produced by the facts testified to ¡by him, may also be shown.”
The following authorities fully support the ruling of the trial court, and a reading of tire same shows that the rulings therein were placed upon the grounds suggested above: State v. Hogan, 117 La. 863, 42 South. 352 ; State v. Matheson, 130 Iowa, 440, 103 N. W. 137, 114 Am. St. Rep. 427, 8 Ann. Cas. 430; Lowe v. State, 118 Wis. 641, 96 N. W. 417; Jordan v. State, 120 Ga. 864, 48 S. E. 352; Franklin v. Commonwealth, 105 Ky. 237, 48 S. W. 987; State v. Exum, 138 N. C. 599, 50 S. E. 283; Bates v. State, 4 Ga. App. 486, 61 S. E. 888; Denver v. Lomovt, 53 Colo. 292, 126 Pac. 276, Ann. Cas. 1914B, 106; Holder vs. State, 119 Tenn. 178, 104 S. W. 225.
The appellant has not questioned the sufficiency of the evidence, except its sufficiency to establish that complainant was unmarried. Under such circumstances, though we may feel far , from satisfied with the proof received, we should not let our desire : to grant a new trial lead us into laying down rules of evidence 1 that will not stand the test of reason and are wholly lacking in authoritative support. ’ '
McCOY, J., concurring in above dissent.