Beversed and remanded on rehearing July 1, 1910.
On Rehearing.
(182 Pac. 153.)
On petition for rehearing.
In Banc.
Rosa Reghitto Merlo shot and killed her husband Joseph Merlo on October 4, 1915. She was convicted of manslaughter upon an indictment charging her with murder in the second degree, and she appealed from the judgment pronounced by the court.
Joseph Merlo came from Italy to this country in March, 1907, and on June 29th following, he and the defendant, Rosa Reghitto, who is also an Italian, were married. At the time of the marriage she was about *69030 years of age. She says that prior to the wedding he told her that he was 42 years of age; but she claims that she afterwards ascertained that he was much older. He had four children, by a previous marriage, living in Italy. Joseph sent for his children and they came to this Country in 1909 and made their home with their father and stepmother. Subsequently two of the daughters married and became established in homes of their own. Mary Guiso and Letizia Partipillo are the married daughters. Louisa Merlo is the third daughter and Louie Merlo is the son; these two children continued to live with their father and stepmother until the date of the homicide. Two children were bom,to the defendant and her husband. David Reghitto is the father of Rosa Merlo. Pietro Debenedetti who, for the sake of brevity, will be called Pete, was an employee of the Merlos.
The defendant and her husband were truck farmers, and they lived upon a tract of several acres of land which was owned by the defendant and is located near a railway station called Santa Rosa. David Reghitto lived near Beaverton, a town about two and a half or three miles distant from Santa Rosa.
Joseph Merlo took a wagonload of Vegetables to Portland and disposed of them during the morning of October 4,1915. The defendant went to Portland that morning on the train and arrived there “a little after 9.” She says that soon after her arrival she met her husband and that, upon noticing that she looked pale and sick, “he suggested that they go to Garbarino’s and take something and you will feel better”; and that they did go to Garbarino’s, where she took some Fer-net bitters. David Reghitto also went to Portland on the train on the morning of October 4th and arrived *691there about 11 a. m. At about 1:20 p. m. the defendant in company with her father boarded an Oregon electric car in Portland and reached Beaverton about 1:42 p. m. They then went to David Reghitto’s home where, according to the testimony of the defendant and her father, she drank only a part of a glass of wine. At 4:07 p. m. the defendant boarded a car at Beaverton and arrived at Santa Rosa five or seven minutes afterwards.
Joseph Merlo reached home about 1 p. m. Three hunters came to the Merlo place early that morning and they were eating their lunch when Merlo arrived home with his wagon. Each of these hunters testified that Merlo was intoxicated when he returned home. The defendant says that when she came from the depot Louisa said that she thought that her father “has got some drink” and that “when he came home from Portland he was quarreling mad.” However, Louisa denies making this statement and asserts that her father was not under the influence of liquor. Pete likewise says that the decedent was sober when he came home.
In its case in chief, the state called Letizia Partipillo, Mary Guiso, Louisa and Louie, the four children of the decedent, Pete and three other witnesses who testified about frequent quarrels between the defendant and her husband and that the quarrels were always brought on by the defendant. When asked what they quarreled about, Louie Merlo stated: “Every time Rosie drank there was quarrels.” A number of witnesses swore that on various occasions they heard the defendant threaten to kill the decedent; some of these threats mentioned by the witnesses were made in the presence of the decedent while others were not made in his presence.
*692' The defendant, in her ease in chief, presented one witness who told about the defendant and decedent coming to the witness’ office in Portland and that during an ensuing quarrel between the defendant and her husband the latter “got awful mad at her” and he picked up a heavy cuspidor “and wanted to hit her with it.” Another witness testified that on Easter Sunday in 1915 he heard the decedent call the defendant a prostitute. Three other witnesses narrated instances calculated to indicate that the decedent was jealous and that he was an aggressive participant in the quarrels with his wife. Evidence in behalf of the defendant is to the effect that upon three occasions the defendant left her husband and talked about procuring a divorce; on one of these occasions she returned to him only upon his promise to do better. The defendant said that three days after their marriage she and her husband quarreled; that he was jealous, cranky and mean; that he called her “all kinds of dirty names”; that he threatened to kill her many times; that he attempted to kill her four years before the homicide; and that she was afraid of him. In addition to what the defendant said about the representation made by her husband concerning his age, she stated that before their marriage he ‘ ‘ told me he leave lots of money in the old country and property; and next he said when I get married I don’t get anything.”
Louisa Merlo testified that when her father came into the house, after returning from Portland on October 4th, she prepared a meal for him, and that after eating “he went upstairs to bed.” According to the testimony of the defendant, when 'she reached the house she met and talked with Louisa and then went upstairs and changed her clothes. Her husband was lying on the bed asleep but awakened while she was *693changing her clothes. She testified that he then asked her what time it was and that when she told him that “it was about half-past 4” and that she had just come home he accused her of “looking around all day with your friend in Portland,” applied an opprobrious name to her, tried to catch her and “he said to-day I am going to fix you.” The defendant says that she ran downstairs and out through the back door into the yard. According to the version given by the defendant, both Louisa and Louie were in the yard and endeavored to aid their father by attempting to catch the defendant, and that she picked up a stick and kept off the children. The defendant says that Louisa soon went “down” to the cabbage-patch where Pete was working and Louie went either to the barn' or to the tomato-house. Louie claims that he was in the tomato-house all the time and did not witness or participate in the quarrel. Louisa says that while on her way from the tomato-house to the cabbage-patch with some boxes for Pete and when at a point some little distance from the house she saw her father and the defendant outside of the house and heard the defendant say: “If anybody comes near me I hit them on the head.” Louisa insists that she went on down to the cabbage-patch and that she neither participated in the quarrel nor even saw or heard any more of it than as already stated. The defendant contends that after Louisa had gone to the cabbage-patch and after Louie had gone to the bam or to the tomato-house the decedent said: “To-day I want to get rid of you and your father and mother and every Reghitto that is bom the same place that I am.” The defendant says she then started to run down to the cabbage-patch where Pete and Louisa were but her husband soon caught her and “he threw me on the porch like an old shoe.” The defendant *694claims that she then fled through the hack door and after locking it ran upstairs and took refuge in her bedroom and locked the o'nly door to that room. The defendant contends that her husband entered the house through a window, came upstairs, broke open the bedroom door and that in order to defend her own life she shot him1. The decedent was shot'four times; twice in one arm and twice in the body. As we read the record it is admitted by all that Louisa and'Pete were in the cabbage-patch when the shots were fired. Louie insists that he was in tÉe tomato-house when he heard the shots; the defendant says, however, that he was at but outside the house and was attempting to persuade his father not to break into the bedroom. Upon hearing the shots Louisa and Pete ran to the house and Louie says that he likewise ran to the house; and they all stated that when they reached the house they found Joseph Merlo lying on the floor in the bedroom. Reversed and Remanded.
For appellant there was a brief over the names of' Messrs. Huston S'Huston, .and Mr. Harry T. Bagley, with oral arguments by Mr. Samuel B. Huston and Mr. Bagley.
For the State there was a brief and an oral argument by Mr. Edmund B. Tongue, District Attorney.
HARRIS, J.When presenting its. case in chief the state called Luigi Beggi as one of its witnesses. After having explained that he had been acquainted with and had worked for Rosa arid Joseph Merlo and that “they used to quarrel” he was asked: “Do you know what they quarreled about?” and his answer was “No.” The witness was next asked: “Who seemed to start *695the quarrel?” and he answered thus: “Well, I don’t know, they started it together; I don’t know.” Subsequent questions asked by the district attorney and answers given by the witness were as follows:
“Q. Do I understand you to say that you don’t know which one generally started the quarrel when they quarreled?.
“A. No.
“Q. You remember of being in the grand jury room, don’t you?
“A. Yes, sir.
“Q. When this case was being investigated? You remember that time?
“A. Yes, sir.
“Q. And the grand jury and myself being_present, didn’t you at that time and place, in the first part of November, I think it was, make this statement—
o “A. Yes; I know it— °
o ° “Q. ‘All the time they had trouble, Rosie all the time start it, she start it first sometimes Joe run away outside sometimes, she drink too much.’
' “Q. Didn’t you say at that time .and place—
“A. I think so.
“Q. You think you said that?
“A. Yes, sir.
“Q. Was it true?
“A. I guess so—
“Q. Was it or not true?
“A. Well, that is true.”
9. The defendant objected to the questions last above quoted “as being .apparently and plainly an attempt to impeach their own witness.” Our statute, Section 861, L. O. L., does not permit the party producing a witness to impeach his credit by evidence of bad character, but the party producing a witness may show that such witness “has made at other times statements inconsistent with his present testimony.” That part of Section 861 which prohibits a party from *696impeaching his own witness by evidence of bad character is simply declaratory of a common-law rule; and this, like most rules, is based upon a reason. In theory, the ultimate object of every lawsuit is to ascertain the truth. Every person participating in the trial of a lawsuit is supposed to assist in ascertaining the truth so that justice can be administered. The party producing a witness is presumed to know the character of that witness; and since a party, like all others concerned in the trial, is at least supposed to aid in discovering the truth, he is deemed to represent to the court that such witness is worthy of credit or at least is not so infamous as to be wholly unworthy of it. It would be a perversion of the judicial function if an unscrupulous litigant could produce a witness, whom he knows to be'Unworthy of belief, and then gamble upon the kind of testimony to be given by the witness, with the accompanying right to accept any benefit that might come from favorable testimony taken from a foul and polluted source or to reject and to destroy the testimony, if unfavorable, by showing that the witness is unworthy of belief. A party who produces a witness of bad character cannot show the bad character of that witness and thus relieve himself from the injurious effects of any unfavorable testimony given by such witness. The element of surprise is not supposed to be present, and hence a party must accept the consequences which he himself has brought upon himself by producing a witness of bad character.
Professor Wigmore says that the “conception, that a party calling a witness must not even discredit him, was not enforced as a rule of law until a comparatively late period.” (2 Wigmore on Evidence, § 896.) This author gives an interesting account of the origin and growth of the rule and says that the enforcement of *697it in the trial of Warren Hastings, in 1788, “seems to have been the immediate cause of its general currency.” The rigor of the rule, when applied to prior self-contradictions, has been, slowly but surely relaxed during the last century, not only by force of statutes but also by the influence of judicial decisions. Professor Wigmore’s treatise on Evidence contains an exhaustive narrative of the origin, growth and establishment of the rule and the processes which in most jurisdictions have brought about a relaxation of the doctrine when applied to prior self-contradictions: Section 896 et seq; Section 1017 et seq. This process of relaxation has naturally resulted in a multitude of judicial decisions. A comparatively few of these de-' cisions have attempted to stem the current of judicial opinion by refusing to relax at all; some have relaxed only slightly; while still others have relaxed much. Whether relaxing much or little, the courts have not always assigned the same reasons for their conclusions. These multitudinous decisions, appearing as they ofttimes do in varying and even contradictory forms and based as they frequently are on different reasons, must always be read in the light of the genesis and subsequent development of the rule now under discussion.
’ Judicial decisions dealing with prior self-contradictions may be divided into three general classes: (1), Those which prohibit the use of prior self-contradictions for any purpose; (2) those which permit a party to direct the attention of his own witness to a prior self-contradiction, but at the same time refuse to permit proof of such prior inconsistent statement even though the witness denies having made the statement; and (3) those which permit a party to direct the attention" of his own witness to a prior inconsistent state*698ment and also allow proof of such prior statement if the witness denies having made the statement. The reported precedents belonging to the second class assign different reasons for their conclusion. Some in general terms declare that a question containing reference to a prior self-contradiction is competent to show surprise; and others in equally general terms say that the question is proper for the purpose of refreshing the recollection of the witness. The cases properly assignable to the third class usually proceed upon the theory that it is competent to prove a prior self-contradictory statement for the purpose of neutralizing the prejudicial testimony of a party’s own witness in the event the witness fails to remember or denies having made the prior statement. Cases found in the second class permit a party to take but a single step; for he can do no more than ask the question and whether the witness admits or denies having made the prior statement, the answer concludes the party. If the cases in this class are resolved to their final analysis it will be found that they exclude rather than include the element of impeachment as the primary basic idea; for the avowed purpose of the doctrine of these eases is to show surprise or to refresh the recollection of the witness. Cases belonging to the third class permit a party to take two steps if necessary: (1) To ask the question; and (2) to prove the utterance of the prior inconsistent statement if the witness denies having made it. In some jurisdictions the right to impeach a party’s own witness is made absolute, either by judicial decision or by statute; while in others, by force of judicial declaration or legislative fiat, the right is made dependent upon the discretion of the trial judge. —
*699A statute in this jurisdiction confers the right and fixes the conditions under which a party may impeach his own witness hy prior inconsistent statements. Section 861, L. O. L., reads as follows:
“The party producing a witness is not allowed to impeach his credit by. evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in Section 864.”
10. Although the language of Section 861, L. O. L., is broad and comprehensive, nevertheless a party cannot assert the right to discredit his own witness by the use of prior inconsistent statements unless such witness gives testimony which relates to a material matter and is prejudicial to the party calling him. If the witness merely fails to testify as he was expected to do, or fails to testify as strongly as was expected, or gives testimony which is favorable to neither party, and does not give testimony prejudicial to the party calling him, then the party producing the witness cannot impeach him by showing inconsistent statements. This is the rule which prevails in this as well as in all jurisdictions coming within the third class: State v. Steeves, 29 Or. 85, 104 (43 Pac. 947); State v. Bartmess, 33 Or. 110, 113 (54 Pac. 167); State v. Yee Gueng, 57 Or. 509 (112 Pac. 424); State v. Jennings, 48 Or. 483, 488 (87 Pac. 524, 89 Pac. 421); Woodburn v. Aplin, 64 Or. 610, 622 (131 Pac. 516); Reimers v. Brennan, 84 Or. 53, 57 (164 Pac. 552); Wigan v. La Follett, 84 Or. 488, 496 (165 Pac. 579); People v. Godwin, 123 Cal. 374 (55 Pac. 1059); Sturgis v. State, 2 Okl. Cr. 362 (102 Pac. 57); Culpepper v. State, 4 Okl. Cr. 103 (111 Pac. 679, 140 Am. St. Rep. 668, 31 L. R. A. *700(N. S.) 1166; Andrews v. State, 64 Tex. Crim. Rep. 2 (141 S. W. 220, 42 L. R. A. (N. S.) 747).
11. Stated broadly, since a party is supposed to know the character of his own witness and having such knowledge should not be surprised at any testimony given by a witness of bad character, a party is not permitted to show the bad character of his own witness and must accept the consequences of his own fault in calling such a witness; but where a presumably truthful person makes a statement and afterwards as a witness makes an inconsistent statement to the surprise and prejudice of the party calling him then the party calling the witness is not in fault and should be permitted to repair the damage.
12. Applying the established rule to the record presented here it cannot be said that the testimony of Luigi Beggi was affirmatively prejudicial to the state. He did not testify as strongly as was expected by the district attorney; but he gave no testimony against the state; and hence the state could not have properly called any of the grand jurors to testify about what was said by Luigi Beggi in the grand jury room. If Beggi had stated that the decedent always or even sometimes started the quarrels the situation would have been different. The essential facts in State v. McDaniel, 39 Or. 161, 181 (65 Pac. 520), bear some resemblance to the record of Luigi Beggi’s testimony; but notwithstanding the similarity in the controlling facts and the ruling made in State v. McDaniel our conclusion is that the testimony given by Beggi was not such as would have authorized the state to impeach him by evidence of prior inconsistent statements.
13. However, no witness was called for the purpose of impeaching Luigi Beggi. The district attorney did not tell the court that the questions were being asked *701for the purpose of laying the ground for impeachment. Indeed, counsel for the state made no statement whatever concerning the purpose of the questions; and the court said nothing, except to overrule the objections. It is true that the defendant objected, claiming that the plaintiff was attempting to impeach its witness; and yet the' objection made by the defendant did not necessarily alone and of itself fix and limit the purpose of the testimony. The defendant does not contend that it was incompetent for Luigi Beggi to testify: “All the time they had trouble, Rosie all the time start it, she start it first, sometimes Joe run away outside, sometimes she drink too much”; and yet in the final analysis the witness did that and nothing more. It is true that the testimony was not given until the attention of the witness was first called to a statement made by him in the presence of the grand jury; but it is also true that when his recollection was refreshed, he remembered that he had made the statement and he then affirmed that the statement was true. If it be conceded that the ultimate answer was competent, then the defendant can have no just ground for complaint unless it can be said that the method pursued was objectionable. The testimony finally given was highly important to the state. A mere reading of the questions and answers already quoted at once suggests that the witness may have been an unwilling witness; and it may be that in addition to the suggestion carried by the paper record the appearance and conduct of the witness made it plain to the trial court that Luigi Beggi was a reluctant witness. Moreover, this same witness afterwards testified that on the night of the shooting David Reghitto told him that he would have to give certain testimony and “if you don’t I fix you.” Here then was a witness whom the court apparently *702treated as an unwilling witness and there is much in the record which would seem to justify what appears to have been the opinion of the court. If Luigi Beggi is viewed as a reluctant witness the next question for decision is whether the substantial rights of the defendant yere affected. Section 1626, L. O. L., provides that:
“After hearing the appeal the court must give judgment, without regard to the decision of questions which were in the discretion of the court helow, or to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”
Our Code expressly provides that “under special circumstances, making it appear that the interests of justice require it” the court may in the exercise of a sound discretion-permit leading questions to be asked on direct examination: Section 858, L. O. L.; State v. Ogden, 39 Or. 195, 202 (65 Pac. 449).
If it be assumed that Luigi Beggi was an unwilling witness and if the questions were asked for the purpose of refreshing the recollection of this unwilling witness, then the ruling of the trial court finds support in our own precedents as well as in parallel cases reported in other jurisdictions: Langford v. Jones, 18 Or. 307, 326 (22 Pac. 1064); State v. Bartmess, 33 Or. 110 (54 Pac. 167); State v. McDaniel, 39 Or. 161, 181 (65 Pac. 520); People v. Sherman, 133 N. Y. 349, 356 (31 N. E. 107); Arnold v. State, 5 Wyo. 439, 447 (40 Pac. 967); Territory v. Livingston, 13 N. M. 318 (84 Pac. 1021); People v. Kelly, 113 N. Y. 647, 651 (21 N. E. 122); Cady Lumber Co. v. Wilson Steam Boiler Co., 80 Neb. 607, 610 (114 N. W. 774); Smith v. State, 46 Tex. Cr. Rep. 267 (81 S. W. 936, 108 Am. St. Rep. 991, 1001). See, also, Sturgis v. State, 2 Okl. Cr. App. 362 (102 Pac. 57, 71); Stanley v. Stanley, 112 *703Ind. 143, 145 (13 N. E. 261); Thompson v. State, 99 Ala. 173, 175 (13 South. 753); People v. O’Neill, 107 Mich. 556, 560 (65 N. W. 540); Battishill v. Humphreys, 64 Mich. 514, 518 (38 N. W. 581); State v. Cummins, 76 Iowa, 133, 135 (40 N. W. 124); People v. Lukoszus, 242 Ill. 101 (89 N. E. 749); Bullard v. Pearsall, 53 N. Y. 230. In view of the apparent reluctance of Luigi Beggi to testify and in view of the answer finally given hy the witness and the special circumstances surrounding the examination of the witness, the defendant is not entitled to a reversal of the judgment on account of the questions asked Luigi Beggi.
14. However, since a party cannot use the prior inconsistent statement of his own witness as substantive testimony, the court should always be careful to protect the rights of the opposing party, and, whenever permitting a party to 'refresh the recollection of his own witness by directing attention to a prior inconsistent statement, the court should inform the jurors of the limited use to be made of the prior statement and should advise them that the prior statement cannot be considered as substantive testimony.
15. The defendant called a number of witnesses who testified that they had never seen the defendant intoxicated or under the influence of liquor. Frank Stroud was one of such witnesses. On his direct examination he stated that he had resided in Beaverton about eight years; that he had been acquainted with the defendant seven or eight years and had seen, her frequently during that time; that he had seen her “a great many times in Beaverton and out of Beaverton a few times”; that he had been “out to her place” a number of times and that he had never seen her intoxicated or under the influence of liquor. On cross-*704examination the witness was asked the following question: “In fact she had a reputation down there of getting drunk didn’t she?” The defendant objected to the question on the ground that it was not proper cross-examination and was hearsay. The court overruled the objection and thereupon the district attorney repeated the question as follows: “She has got a reputation down there for getting drunk hasn’t she?” and the witness answered thus: “I could not answer that question‘yes.’ I don’t think so.” Again the witness was asked on cross-examination, “Isn’t it a matter of general neighborhood talk down there that Rosie gets drunk?” The defendant again objected and upon the objection being overruled the witness answered thus: “I can’t answer that question. I don’t think so.” Assuming without deciding that the questions were objectionable nevertheless it is plain that the answers1 given by the witness in no wise prejudiced the defendant. It is true that subsequently the witness testified that he had heard that the defendant drank and that he had heard “that she gets drunk,” but there was no objection made to the questions calling for those answers.
16. David Réghitto was called as a witness for the defendant and, on direct examination, testified that he had “been over to Rosie’s home quite often,” and, indeed, as often as once or twice a week during the spring and’summer time; that Joe “was afraid of nobody”; that he had been at the home of the Mellos at “different times” when “Rosie and her husband were quarreling”; that he had heard Joe call Rosie such names as “cow,” “prostitute” and “pig”; that on one occasion the defendant left her husband “and was going to get the sheriff to get her children” and that “Joe came to Beaverton to get Rosie to come *705back” and that Joe came to see the witness; that the witness told Joe that he did not feel like attempting to persuade Eosie to return because he had persuaded her on two previous occasions not to secure a divorce; that Joe said “if she come back on the place and everything was all right and they make money and he would treat her nice and respect her”; and that Joe “begged and was nice and sweet as he can be, and talked to my daughter to come back.” On cross-examination this witness stated that Joe “was a man that was very jealous.” When asked on further cross-examination to tell what the trouble was between Joe and Eosie the witness explained: “they don’t get along good. All the time he scolded bad.” David Eeghitto also stated on cross-examination that Joe and Eosie did not get along because “he was a rough man, and a bad man; and no education; an Italian; a low-class Italian.” The witness was then asked by the district attorney the following question:
“Didn’t the whole row start over the fact he told Eosie before he was married that he had a lot of money?” “Didn’t he tell Eosie before he was married that he had a lot of money?” “And when Eosie found out that he didn’t have any money after they were married they had trouble from that time on didn’t they?”
In substance, “No” was the answer to each of the quoted questions. Continuing with the cross-examination the district attorney afterwards asked the following questions and the witness gave the following answers:
“Q. Didn’t you at that time tell Mr. Holsheimer that you had never seen Eosie and Joe quarrel?
“A. No; I didn’t speak to him; I just go around quick to find Eosie.
*706“Q. And at that time and place didn’t you say to Mr. Holsheimer that Joe had come from the old country and he boasted of being a rich man?
“A. No.
“Q. And he didn’t have anything and that was the cause of most of the troubles or quarrels?
“Q. Did yon tell Mr. Holsheimer that or words to that effect?
“A. I never told Mr. Holsheimer.
“Q. Didn’t you tell Holsheimer that at that time?
“A. No, sir. Yon know yourself that — ”
Subsequently, George H. Holsheimer was called as a witness for the state in rebuttal, and he stated that at the time and place mentioned in the questions submitted to David Reghitto the latter stated to the witness “that Joe and Rosie could not get along, but they quarreled all the time, but that he never saw them quarrel”; and “that Joe came from the old country and boasted of being a rich man, but he didn’t have anything and that was the cause of most of the quarrels.”
The defendant contends that she made no attempt to show, by the witness David Reghitto, the cause of the quarrels, and that therefore it was not proper cross-examination for the state to inquire into the cause of the quarrels. The defendant admitted that she killed her husband; and hence as stated by the defendant in her printed brief:
“The great issue in the case of course, is as to whether or not the killing of the deceased by the defendant was justifiable.”
No person now living besides the defendant herself was present at the shooting. No person except Louisa and possibly Louie saw Rosa or Joe, prior to the shooting, at any time after the defendant arrived at the *707house that evening. It is true that the defendant says that Louie was at the house, but he denies it;.and consequently the prosecution was obliged to rely upon circumstances to support its contention. The state had introduced evidence of threats made by Rosa; both the plaintiff and the defendant introduced witnesses who testified about many quarrels; the defendant had already appeared as a witness in her own behalf and testified about the representation made by Joe concerning his age and that he had told her prior to the marriage that “he had lots of money,” but that she found out that he did not have any money. It is admitted that the defendant and her husband quarreled frequently; and consequently the fact that Joe or the fact that Rosa, as the case may be, usually brought about the quarrels would be a very persuasive circumstance in determining whether the killing was criminal as argued by the prosecution, or justifiable as contended by the accused. Before calling David Reghitto, the defendant had told her own story and she as well as other witnesses had given testimony from which it could be argued that the decedent was either alone responsible for the quarrels or at least was an aggressive participant in the quarrels. Indeed, the testimony given by David Reghitto on direct examination, if believed by the jury, furnished a substantial foundation for a finding that Joe and not Rosa was responsible for the quarrels; and while the defendant did not in terms ask the witness to state the cause of the quarrels the questions submitted to bim and the answers given by him did in effect say to the jury that the quarrels were caused by Joe illtreating Rosa; and, therefore, the district attorney was well within the limits of Section 860, L. O. L., when he asked the witness whether the quarrels began when Rosa learned that *708Joe did not have “lots of money.” The matter inquired about on cross-examination was obviously connected with matter stated by the witness in his direct examination and the cross-examination was designed to explain and qualify the direct examination: Speer v. Smith, 83 Or. 571, 575 (163 Pac. 979).
17. The defendant insists that the cross-examination of David Eeghitto concerning his alleged statements to Holsheimer and the testimony of Holsheimer as to those statements was prejudicial error because it was an attempt to impeach a witness by showing contradictory statements concerning matters which were immaterial and irrelevant to the issues in the case. The general rule is that when a cross-examination elicits from a witness matter that is immaterial or wholly irrelevant to the issue the party conducting the cross-examination is concluded as to such matter and cannot impeach the credibility of the witness by showing that he has at other times made contradictory statements touching the same matter: Josephi v. Furnish, 27 Or. 260, 264 (41 Pac. 424). As already pointed out the cross-examination of David Eeghitto was proper because connected with matter stated by him in his direct examination; and it is manifest that the matter inquired about on the cross-examination was material and relevant, to the issue.
Among the witnesses called by the state after thfe defendant had completed her case in chief was Mike Partipillo, a son-in-law of the decedent, who testified about going to the Good Samaritan Hospital in May, 1915, to visit Annunziatta Merlo, a sister of the defendant, and there, in the presence of Letizia Partipillo and Annunziatta Merlo, hearing the defendant say: “Some day I am going to blow Joe’s brains out.” Letizia Partipillo, a daughter of the decedent, was a *709witness for the prosecution in its case in chief and had testified about the threat referred to by her husband Mike Partipillo. 'Annunziatta Merlo was also a witness for the state in its case in chief and she had testified that the defendant said that “she would blow somebody’s brains out.” When the plaintiff called Mike Partipillo and requested him to tell about what occurred in the hospital the defendant objected because the testimony was not proper rebuttal. The district attorney thereupon stated to the court:
“The court has the right, rebuttal or no rebuttal, in the interest of justice, to allow the introduction of testimony that might throw any light on the case. We intended to put this witness on in the direct case but he didn’t get out on the train and we rested our case without him”;
—and, in the light of that statement, the court ruled that the witness could testify. Strictly speaking, the testimony was not proper rebuttal but was a part of the state’s case in chief. It is not claimed that Mike Partipillo had not been subpoenaed. His evidence was cumulative only. The defendant could not have been surprised at the testimony given by Mike Partipillo because both Letizia Partipillo and Annunziatta Merlo had previously testified that he was at the hospital when the alleged threat was made. It is apparent that the plaintiff did not offer the evidence as rebuttal, but upon the contrary, recognizing that it was not proper rebuttal, the district attorney in effect requested the court to reopen the case so that this evidence could be introduced as a part of the state’s case in chief. We think that we may fairly assume that the court treated the explanation of the district attorney as a request to reopen the ease. Viewing the ruling of the court as a permission to reopen the state’s case *710in chief, it was in harmony with rather than in violation of the doctrine announced in State v. Minnick, 54 Or. 86, 95 (102 Pac. 605).
18. Mrs. Martha Hansen testified in rebuttal for the state that she was a passenger on the car which carried the defendant from Beaverton to Santa Rosa, and that in her opinion the defendant was intoxicated when she alighted from the car at Santa Rosa. In its case in chief the state offered no evidence indicating that the defendant was intoxicated on October 4th; nor did the plaintiff offer any evidence that the defendant had on that day drunk any intoxicants except the testimony of J. E. Reeves, the sheriff, who told about the defendant telling him that “she had a couple of drinks of Fernet bitters ’ ’ in Garbarino’s saloon with her husband and the testimony of Palmiro Reghitto, who stated that the defendant, when at her mother’s house in Beaver-ton on the afternoon of October 4th, said: “For once she drank with her husband in Portland,” and also that Rosa said “she drank twice with her father.” The defendant called six witnesses who had seen her at different times while she was in Portland on October 4th and each of these witnesses stated that the defendant was not under the influence of intoxicating liquor. G. L. Thompson, another witness for the defendant, testified that she was sober when she alighted from the car at Beaverton at 1:42 p. m. and that she was not intoxicated when she departed' at 4:07 p. m. Doy Gray, a witness for the defendant,-talked with her “a couple of minutes” while waiting at the Beaverton depot for the 4:07 p. m. car and he saw no signs of intoxication. William E. Beydler, another witness for the defendant, saw the defendant within a few minutes after the shooting which had occurred at about 5 o’clock p. m. and he saw no evidence of intoxication. *711The testimony of Mrs. Martha Hansen was probably more appropriately a part of the state’s case in chief; and yet it must be apparent that the defendant was ■not prejudiced in the slightest degree by reason of the reception of the evidence in rebuttal instead of in chief.
19. After most of the evidence for both the state and the defendant had been introduced, the district attorney recalled Luigi Beggi in rebuttal and the following questions were asked by the state and the following answers given by the witness:
“Q. Ask bim if his uncle — ask him if Davie is his uncle?
“A. No.
“Q. Ask him if he knows anything about the time Rosie got a revolver and was going to kill his uncle?
“A. Yes, sir.
“Q. Ask him to tell the jury about that?
“A. Yes; Davie’s brother was cleaning land and Rosie came up and told him — Rosie said if he should not take back the words he said she would shoot him.
“Q. Ask him if she got a gun after him?
“A. I didn’t see it. But he told me that she had it.
“Q. Did he see it?
“A. No, sir. My father was there.
“Q. Did Rosie tell you that?
“A. No, sir.”
There is but little evidence in the record referring to the relationship of Luigi Beggi, but we do read in the transcript, however, that Rosa Merlo in her testimony refers to “Louie Beggi” as “my cousin”; and hence if “Louie Beggi” is the same person as “Luigi Beggi” there is affirmative testimony that Joseph Merlo was not an uncle of Luigi Beggi. At any rate there is not one word of evidence to indicate that Joseph Merlo was an uncle of the witness; nor is it *712claimed by the state that such was in truth the relationship. The answer of the witness would affirmatively indicate that Eosie, the defendant, addressed her threat to her father’s brother. Moreover, this testimony of Luigi Beggi was doubly incompetent because he did not “see it” but had only heard about it. It is plain that this testimony of Luigi Beggi about what the defendant did and said was not competent for any purpose; and when we remind ourselves that any evidence tending to show that one rather than the other was the probable aggressor on the day of the homicide would operate as an important factor in the deliberations and conclusions of the jurors, it can at once be seen that this incompetent testimony of Luigi Beggi was highly prejudicial to the substantial rights of the defendant. The reception of this incompetent evidence compels a reversal of the judgment. It is not necessary to determine the extent of the power conferred upon the Supreme Court by Article VII, Section 3 of the State Constitution, for the reason that what was said about the evidence in State v. Rader, 62 Or. 37, 41 (124 Pac. 195), is equally applicable to the record presented on this appeal. We do not find it necessary to discuss any other assignments of error because some of them are without merit and the questions involved in others will probably not occur on a retrial.
The judgment is reversed and the cause is remanded for a new trial.