— This was a prosecution by the State, by indictment, of Bert Parker for assault and battery with intent to commit a felony, to wit, rape. The only assignment of error in this court is, the overruling of the motion for a new trial.
1. The questions presented for our consideration relate to the ruling of the court on the admission of evidence. It is contended by the attorneys for the appellee that the evidence is not properly in the record for the reason that the official reporter has failed to certify to the correctness of the longhand manuscript of the evidence as incorporated in the bill of exceptions, signed by the trial judge. It has been held repeatedly by this court that the certificate of the reporter adds nothing to the bill of exceptions and need not be incorporated therein. The settling and certifying the bill of exceptions containing the evidence are judicial acts and within the power of the trial, judge, who must be allowed to exercise his own. judgment in respect to the correctness of the evidence, ruling, exceptions, etc., *132therein embraced before it receives his approval. Adams v. State (1901), 156 Ind. 596, 602, 59 N. E. 24, and authorities cited; Oster v. Broe (1903), 161 Ind. 113, 121, 64 N. E. 918. As was said by the learned judge who wrote the opinion in the case first cited, “The administration of law and justice has been invested by our Constitution in the judiciary, and judges, not clerks or stenographic reporters of evidence, compose this branch of the State’s government.” The bill of exceptions containing the evidence in this ease was presented to the trial judge in due time and by him signed and made a part of the record in this case. It would be worse than useless to append to the longhand manuscript of the shorthand notes, a long recital of the fact that the reporter was duly appointed, sworn and took the evidence when the certificate of the trial judge is the only certificate that can be considered by this court. Such a procedure would only add to the expense of litigants and needlessly encumber the record.
2. On the trial of the cause, a witness testified that she saw some person leave the home of the prosecuting witness whom she did not know. The attorney for the State thereupon asked the witness the following question: “I will ask you what size man; what appearance the man had as compared with the defendant, Bert Parker ’ ’; the attorney at the same time commanded the appellant to stand up, to which attorney for appellant objected on the grounds that the appellant had not yet testified, and that he was not required to furnish evidence against himself. The court then ordered the appellant to stand, to which appellant excepted. We are inclined to think the objection was not well taken, but without deciding that question we are of the opinion that appellant was not harmed by being compelled to stand for the reason the witness answered, “About that tall, a little taller.”
*1333. *132The last question presented for our consideration is one of ordinary difficulty, and one on which the courts of the *133several states are not in harmony. The prosecuting witness testified in her examination in chief that the first she saw of appellant he was passing in an open buggy along in front of the house. On cross-examination the witness admitted that she had testified in police court on the preliminary hearing of this appellant, that she had said the first she saw of appellant was when he came in the back door. On reexamination the witness was allowed to testify that she had made the same statement she gave in her testimony on the trial, to others and to the grand jury. This was over the objection of appellant and is assigned here as error.
It seems to be the rule in nearly all the states that where a witness has been asked if he had not made statements to others in conflict with testimony given on the trial, and the witness denies making the statement and witnesses are called to impeach the witness by showing he had made the statement out of court, that witnesses may be called to show that the witness, sought to be impeached, had made statements to them or in their hearing, the same as given on the trial by the witness. This is not allowed in all the states, but where permitted, it is on the theory that if stated prior thereto, the same as upon the trial, and at a time when there was no opportunity to consider the weight or effect the statement would have in the case, it would rebut the probability ’ of the truthfulness of the impeaching testimony.
Judge Cooley in the case of Stewart v. People (1871), 23 Mich. 63, 74, lays down what we think is the true rule to be followed in such eases which is as follows: “If it were an established fact that the witness had made the contradictory statements, we should say that the supporting evidence here offered was not admissible. If a witness has given different accounts of an affair on several different occasions, the fact that he has repeated one of these accounts oftener than the opposite one, can scarcely be said to entitle it to any additional credence. A man untruthful out of court *134is not likely to be truthful in court; and where contradictory statements are proved, a jury is generally justified in rejecting the testimony of the witness altogether. But in these cases the evidence of contradictory statements is not received until the witness has denied making them, so that an issue is always made between the witness sought to be impeached and the witness impeaching him.” It will be noticed that Judge Cooley holds that it is never admissible until an issue is formed by the witness denying having made the statements out of court.
It was an established fact by the admission of the witness herself that she had made the contradictory statements in the police court; hence no necessity arose for proving this statement and there was nothing to meet by showing she had made the statement at another time in conformity to her testimony on the witness stand.
For the error in admitting the evidence, heretofore set out, this cause is reversed with instructions to the court below to grant a new trial.
Cox, J., dissents.