*315Decided March 16, 1909.
On Petiton foe Rehearing.
[100 Pac. 258.]
Mr. Justice Kingdelivered the opinion of the court.
12. The main contention of counsel for the State in their petition for rehearing is that no error was committed on cross-examination of Mrs. Kruse, a witness for the defendant. But the error for which judgment of the court below was reversed was in permitting, over the defendant’s objection, proof of statements purporting to have been previously made by Mrs. Kruse contradictory to the answers elicited on cross-examination, and our reference to the law relating to abortion was' merely to show that, whether the statute includes this violation of the moral law in its category of crimes or not, the effect upon the jury, under the variant statements testified to by Mrs. Loomis, would be the same, and could but result in. prejudicing defendant’s right, making a reversal necessary. In support of its position the State insists that an unecessary abortion is not a crime, under Section 1748, B. & C. Comp., unless it results in the death of the mother, or of a quick foetus, and authorities are cited in support thereof. Bishop, Stat. Crimes (3 ed.), § 745; Wharton, Homicide (3 ed.), § 375; Evans v. People, 49 N. Y. 86; State v. Cooper, 22 N. J. Law, 52 (51 Am. Dec. 248); Commonwealth v. Parker, 9 Metc. (Mass.) 263 (43 Am. Dec. 396); Smith v. State, 33 Me. 48 (54 Am. Dec. 607); Wells v. New England M. L. Ins. Co., 191 Pa. 207 (43 Atl. 126: 53 L. R. A. 327: 71 Am. St. Rep. 763). But why this position is so earnestly pressed is not clear; for only in the event such acts constitute a crime could it properly be held, if at all, that State v. Bacon, 13 Or. 145 (9 Pac. 393: 57 Am. Rep. 8), presented as an authority in justification of the inquiry for which the judgment was reversed, is in point. Whether the interpretation invoked by the *316plaintiff of section 1748 of the statute is correct is not essential to a decision of the point under consideration, nor are we disposed to pass upon a question of such importance until necessary to do so. If the point is urged on the theory that the facts elicited could not have been prejudicial unless sufficient, under the statute, to constitute a crime, still the position thus assumed is untenable; for, as formerly explained, the testimony of Mrs. Loomis in reference to the matter was such as would ordinarily lead the jury to believe this section of the statute had been violated, the influence of which, presumably, had the same effect upon the jury as if the charges were in law conceded to be a crime. The defendant was on trial charged with having contributed to the delinquency of Hallie Williams, and not for having committed an abortion upon, or of having improperly treated, Mrs. Kruse. True, the statement of witness that defendant had “treated” her at one time was brought out on her direct examination, but this was a collateral matter, having no bearing on the issues involved. Mrs. Kruse was in no sense a party to the record, and the cestimony sought with reference to ner clearly comes within the rule that:
“Where a witness is examined as to statements that are irrelevant tó the issues, the cross-examining party is concluded by his answers, and it is error to permit him to prove such variant statements. * * Nor does the fact that a witness has testified to facts that are collateral or irrelevant to the issues in the case avoid such necessity, nor render it proper to elicit or prove statements of the witness that are relevant to and variant from the facts to which he has so testified, but which are collateral or irrelevant to the issues in the cause; and where such collateral matters are elicited from a witness the parties are concluded by his testimony in respect thereto, and cannot contradict it by proof of variant statements.” 7 Enc. Evidence, 81, 82.
13. We did not hold that an error was- committed merely because the State was permitted to go into these *317matters on cross-examination. The cause was decided on the assumption that the court did not abuse its discretion in permitting this line of inquiry on cross-examination; but as to the right, after the witness had answered the cross-interrogatories, of counsel further to proceed in introducing the testimony, discussed in the opinion which followed, we merely applied the above rule, together with that announced by Mr. Justice Wolverton in Josephi v. Furnish, 27 Or. 264 (41 Pac. 425), namely: “A witness, not a party to the record, cannot be impeached by showing that he has made contradictory statements concerning matters immaterial or irrelevant to the issues in the case.” It can make no difference whether the testimony sought to be impeached may be treated as the evidence of the party calling the witness, for the same reasons exist for the exclusion of the testimony as to the variant statements. It is not insisted that it was material or relevant to any of the issues upon which defendant was on trial that improperly, or in violation of any moral or statutory law, the defendant may have committed an abortion upon the witness, bringing the objection to this line of inquiry clearly within the above rule.
In Josephi v. Furnish it was maintained that an assignment by Wilkinson was made for the benefit of his creditors. Plaintiff therein purchased of Wilkinson the property affected by the assignment, and one H. L. Hasbrouck was placed in charge and remained in control for a short time, when Wilkinson was restored to possession. Wilkinson, being called as a witness for plaintiff, testified to the circumstances attending the sale, tending to show that it was made in good faith and for an adequate consideration. After the testimony to the above effect was given, Wilkinson, for the purpose of showing the relations existing between them, and of testing his credibility as a witness, was asked on cross-examination whether, on the date of the sale, he told W. M. Brown *318that he had Josephi come there, and had given him a bill of sale in order to stop a blackmailing suit, etc., and that he only put the property out of his hands for that purpose, etc., to which the witness answered in the negative. Brown was then called, and testified that such statements were made. The admission of proof of the contradictory statements was held prejudicial, and for the reasons stated in the above excerpt from the opinion the cause was reversed. This case is clearly in point, and we think decisive of the question here presented. Capital Lumbering Co. v. Learned, 36 Or. 551 (59 Pac. 454: 78 Am. St. Rep. 792) is cited as supporting plaintiff’s position, but the admission there evoked was held to be cumulative only; hence is not applicable here. In the case cited of Smitson v. S. P. Co., 37 Or. 88 (60 Pac. 907) the testimony sought by the inquiry was held to be material to the issues involved, and in State v. Ellsworth, 30 Or. 145 (47 Pac. 199) the questions only related to the manner of laying the foundation for impeachment, and as to what may be asked on cross-examination of a witness. These cases, like the others cited from this court, are not in point. Authorities are also cited from other states, but it is unnecessary to consider them, as we will be governed by the rule recognized by the highest courts within the jurisdiction in which the cause was tried. It is elementary that as a general proposition evidence offered must correspond with the allegations, and be confined to the points in issue, and equally as well settled that, except in rare instances, all evidence of collateral fácts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, should be excluded. Such evidence tends to detract the attention of the jurors to extrinsic matters, and to excite prejudice and mislead them. If some limitations were not placed upon inquiries of this character, it could but result, in many cases, in the jury losing sight of the *319merits of the controversy, and no method could well be adopted whereby the end of such inquiries could be determined. Other reasons may be given, and many authorities cited, as to why this course should not be allowed; but the rule announced in Josephi v. Furnish, is so clearly decisive of the question before us that we deem further elucidation thereof unnecessary.
The petition is denied.
Reversed: Rehearing Denied.