Dissenting Opinion.
Watkins, J.I am in accord with the opinion of the majority, except upon one question, and that is the right of the district attorney “ to have the accused called for the purpose of laying the basis for his contradiction,” under any circumstances, and particularly under the circumstances stated in the opinion.
The defendant had accepted the grace of a special statute, and placed himself on the stand as a witness in his own favor. He was examined, cross-examined and re-examined.
He was then discharged from the witness stand. “ The day after he had been discharged as a witness,” in the language of the court, he was recalled by the State and examined, “ for the purpose of laying a foundation for a contradiction.”
In so doing the State made the accused her own witness, and his testimony his own evidence. In my opinion, the statute authorizing accused persons to testify is not susceptible of the interpretation the court has given it. It declares that while “ the circumstance of the witness being a party accused shall in no wise disqualify him from testifying,” yet that declaration is coupled with the proviso, “(1) that no one shall be compelled to give evidence against himself;” and “(2) that if the person accused avails himself of this privilege, he shall be subject to all the rules .that apply to other witnesses, and may be cross-examined as to all matters concerning which he gives his testimony.” Sec. 2, Act 29 of 1886.
In this instance the accused has been coerced to violate both of the foregoing provisions of the act, (1) by compelling him to testify against himself as a witness for the State, against his solemn protest; (2) by compelling him to give testimony for the State otherwise than on cróss-examination, and in relation to matters and things about which he was not interrogated in chief while on the stand as a witness in his own behalf.
*1137If the decision be in conformity to the statute, it is plainly unconstitutional, being in direct conflict with Art. 6 of the Constitution.,
This statute is an enabling law, and like other enabling statutes should be strictly construed.
If the construction placed upon the statute in question prevails,. any ivitness who has appeared and testified for an accused becomes liable to be thus called by the State as a witness for the accused notwithstanding his discharge, and at any subsequent stage of the trial, and compelled to give evidence against himself. My understanding of the law is different. I am firmly of the opinion that the State exhausted her right of questioning the accused upon his cross-examination, and that both the statute and Constitution forbade his being-made a witness for the State, and coerced to give testimony against himself.
For these reasons I feel constrained to dissent from the opinion of the majority.