Defendant was charged with jnurder and convicted of manslaughter. He appeals from the verdict and sentence imposed.
[1] Bill of exceptions No 1: This bill refers to the overruling of defendant’s motion for a new trial, .which motion was based on the allegation “that the verdict of the jury is contrary to the law and the evidence, and the same should be set aside and annulled for these reasons, and because of the billing of exceptions previously reserved to the rulings of the court.” The bill presents nothing for this court to review.
[2] Bill of exceptions No. 2: This bill is reserved to the overruling of defendant’s objection to the testimony of a witness to the effect that the accused and the deceased had had a difficulty about four miles from the scene of the homicide, which difficulty was had some five months previous to the homicide. In offering the evidence, the district attorney said that it was for the purpose of proving motive. The evidence was competent for such purpose; and it was properly admitted.
[3, 4] Bill of exceptions No. 3: This bill is reserved to the reading to a witness for the state, in the presence of the jury, and over *211objections by tbe defendant, of bis testimony before tbe coroner’s jury, for tbe alleged purpose of refreshing tbe memory of tbe witness.
Tbe testimony of tbe witness is in tbe record, and is to tbe effect that be knew nothing whatever about tbe homicide; that be was so< drunk at that time and for three days thereafter that be did not remember any of tbe circumstances or that be bad testified before tbe coroner. Tbe district attorney expressed surprise at this attitude on tbe part of tbe witness, and asked tbe witness to take tbe .written testimony which be tendered to him, to read it, and to say whether be bad given that testimony before tbe coroner’s jury. Tbe witness read it, admitted that his name was signed thereto, but said that he did not remember any of tbe circumstances and that be did not remember having testified before a coroner’s jury. Tbe witness did not give any evidence whatever on tbe trial of the cause. He simply answered that be knew nothing at all of tbe facts of tbe case. Under such circumstances be should have been told to stand aside. He bad given no evidence to be impeached by tbe district attorney. Tbe state says on its brief: “It was not an attempt by tbe state to impeach its own witness,” and it could not have been tendered for that purpose, for tbe reason that tbe witness bad not testified to anything connected with tbe case. It was therefore not competent for tbe district attorney to use tbe written statement which be held in his band during tbe trial, and read it aloud before tbe jury. Tbe statement is in tbe record, and it is very damaging against tbe defendant; but it was not evidence in tbe case. It was well calculated to have a prejudicial effect upon tbe minds of tbe jurprs, although tbe judge instructed tbe jury to disregard tbe statement.
“The party must first show that tbe evidence, as given, has taken him by surprise. The witness may then be asked if he has made contradictory statements out of court; the times, places, and circumstances of the statements being described to him in detail. But the fact that a witness, when on the stand, seems ignorant of some or all of the facts he was expected to know, will not permit the examining party to prove that he made the desired statements out of court. In order that one’s witness may be contradicted, mere silence or ignorance on his part is not enough. The witness must testify expressly and in terms to facts which are in direct contradiction to his prior extrajudicial statements.” Underhill on Criminal Evidence, p. 229 et seq.
Tbe ruling of tbe district judge in permitting tbe district attorney to read tbe statement aloud to tbe witness in tbe presence of tbe jury was erroneous. There is reversible error in tbe ruling.
It is therefore ordered, adjudged, and decreed that tbe verdict and sentence be annulled, avoided, and set aside; and tbe case is remanded to be tried in accordance with law.