Dissenting Opinion.
Cox, J.— I am unable to agree that this cause should be reversed on account of the admission of the testimony of the witness, which action the opinion of the court declares was both erroneous and prejudicial. It seems to me that the opinion of the court oh this question is out of harmony, if not in conflict with many former decisions of this court. Hobbs v. State (1893), 133 Ind. 404, 32 N. E. 1019, 18 L. R. A. 774; Ramey v. State, ex rel. (1891), 127 Ind. 243, 26 N. E. 818; Beauchamp v. State (1842), 6 Blackf. 299; Coffin v. Anderson (1837), 4 Blackf. 395; Walker v. State (1894), 136 Ind. 663, 667, 36 N. E. 356; Hicks v. State (1905), 165 Ind. 440, 75 N. E. 641, and cases there cited. It appears to be in direct conflict with the holding of this court in Hinshaw v. State (1897), 147 Ind. 334, 371, 372, 47 N. E. *135157. In that case a witness for the State had testified on her examination in chief that she saw no one running away from the scene of the alleged crime. On cross-examination for appellant, she testified that at first she had been under the impression that she saw the feet of men leaving the scene, as they disappeared behind a barn or woodshed, and that shortly after the tragedy she had so stated. On redirect examination she was permitted to testify over the defendant’s objection that later when inquiry was made of her about the circumstance of the feet disappearing behind the barn, she made the statement that she did not see them,. The court held that this was within the rule in this State which permits a witness to be sustained by proof of other statements in harmony with his testimony on the trial when an attempt is made to impeach him by contradictory statements. That the rule so declared in this State is not confined to this jurisdiction but has been announced in other states is shown by an extended monographic note in 41 L. R. A. (N. S.) 857, 904, 912, 938, which note also shows an astounding state of confusion on the entire subject. See, also, Underhill, Crim. Ev. (2d ed.) §223; 2 Elliott, Evidence §930.
But aside from any question of what the rule is or should be, I feel strongly that the transcript of the record before us does not present ground for reversal in permitting the witness on redirect examination to testify that she had testified before the grand jury in harmony, with her testimony on the trial in the particular involved. If conceded to be technically erroneous to permit her to so testify, the bill of exceptions containing the evidence makes it obvious that it was harmless error. From the bill of exceptions it appears that on the trial the witness on her direct examination testified that she was in the front room of her house, a two room house which was near the street; that she saw appellant as he passed along the street in front of her home in a buggy; that in a little while she heard the dog bark in the *136back room and looking through the door between the two rooms she saw appellant coming in at the back door. On cross-examination by appellant’s counsel, the witness, for the purpose of impeachment by contradictory statements, was asked if she did not say in her testimony in the preliminary examination in police court that, when she first saw appellant was when he came in the. back door. She answered, “Yes, sir, I did say that, I got tangled so, I didn’t know”. By further persistent questioning appellant’s counsel brought from the witness answers to the effect that while she did say while testifying in the examination in police court that she saw appellant first when he came in from the back she did not then think about seeing him pass in front; that she was there to tell the truth but so many questions were asked her by appellant’s counsel that she got “so tangled” she “did not know what to say”; that while she did not tell on the witness stand in police court that she saw appellant first while he was passing in front that she did tell the prosecuting attorney so before she went on the stand.
Following this the witness was permitted on redirect examination to say that she had testified before the grand jury that she first saw appellant as he drove past in the street in front of her house. For this the cause is reversed. I, think it should not be. In -no sense was it greatly material whether the witness first saw appellant passing in front of her house or whether she had made inconsistent statements in that particular. The material thing was that she saw him come into her house and what followed thereafter. It was natural that merely seeing appellant pass in the street in front of the house made the lightest impression on the memory of the witness while his unceremonious entrance into the rear door of her home without legitimate reason found a deeper lodgment. What more natural then that when first called to testify against him she should state the fact that had strongly impressed itself on her memory to *137the exclusion of one far less material.' Her admission that she had done so had little tendency to impair her credit as a witness. Considering all that was brought out by appellant’s cross-examination of the witness as above stated, it is manifest that it did not establish any vital inconsistency in her testimony on the trial and that in the preliminary examination, but only an immaterial variation of detail fully explained and not at all calculated to impeach the credibility of the material part of her testimony. There was nothing in the evidence at all relating to this matter but that elicited from the witness. Appellant in no way showed that her cross-examination was not entirely true. How then could harm have come to appellant by proof of the testimony before the grand jury in harmony with her testimony on the trial in this one particular when no real inconsistency had been shown by the cross-examination? Conceding it to have been technically erroneous, it was palpably harmless. Its only purpose was to sustain the credibility of the witness against the attempted assault and if the matter brought out on cross-examination was ineffective to affect her credit, I can not see that that brought out on reexamination to sustain it worked any harm to appellant.
Moreover it appears, as shown above, that the cross-examination by appellant’s counsel brought out the fact that the witness before testifying in police court had told the prosecuting attorney that she first saw appellant as he passed in the street in front of her home. In view of that fact I fail to see how appellant can complain of the State’s pursuing, on redirect examination, a course which counsel for appellant had opened and invited it into.
Note. — Beported in 108 N. E. 517. As to impeaching witnesses, - see 14 Am. St. 157. As to the admissibility of previous statements by a witness out of court consistent with his testimony, see-41 L. B. A. (N. S.) 857. As to the right to compel accused to exhibit himself to determine identification, see 28 L. B. A. 699. See, also, under (1) 12 Cyc. 851; (2) 12 Oyc. 920; (3) 40 Oyc. 2760.