(dissenting).—I dissent from the opinion filed in this case, and shall only speak of two matters, and of these only because the facts are not fully stated.
Concede that the court erred in refusing permission to the defendant to interrogate Mortimer as to whether he had not been in the penitentiary two or three times, still no complaint was made of this ruling in the motion for a new trial, and the error is therefore not before us for review. The defendant did complain, in his motion for a new trial, that the court permitted incompetent witnesses to testify and that the court admitted illegal evidence offered by the state; but he made no complaint whatever that the court excluded evidence offered by *627himself. The evidence excluded was of no value except as affecting the credit to be given to the witness. It was in substance and effect evidence offered by the defendant, and, as exclusion of evidence offered by him was not made a ground for a new trial, the error in excluding it should not be considered in this court.
I do not understand the opinion before filed in this. case to hold that Mortimer was an incompetent witness. He was certainly competent to testify on behalf of the state; for he was not a party to this record. Besides this he entered a plea of guilty before he was called as a witness. It seems to be held that his evidence should have been excluded on the ground that he had made a corrupt contract with the state. The evidence of such a contract, if any there is, is that elicited from Mortimer on cross-examination, and that is this: Q. “You were indicted for this murder, were you not, George?” A. “Yes, sir.” Q. “You negotiated with the state to testify and they agreed to let you off from that indictment by a plea of murder in the second degree ? ” A. “Yes, sir.” Q. “ That was an arrangement between you and the state?” A. “Yes, sir.” Q. “You are indicted for several other offenses, are you not, in this court?” A. “Yes, sir.” Q. “Did they agree to let you off from those?” A. “Yes, sir.” Q. “Let you off free from those indictments and take a plea of murder in the second degree, if you would testify against Miller?” A. “Yes, sir.” Q. “ And that arrangement was made this afternoon in the court house, was it?” A. “ Yes, sir.”
I fail to discover anything in this evidence which shows, or has the least tendency to show, that the agreement was that the witness should testify to anything other than the truth, the whole truth and nothing but the truth. In my judgment a conclusion that this witness was not to make a full and complete disclosure is simply a play upon the words “negotiate” and “testify against Miller”— words which were put into the mouth *628of the witness by counsel who cross-examined him. This is but the ordinary case of an accomplice testifying against a confederate in the commission of a crime, and it is to hoped the time has not arrived in the criminal jurisprudence of this state when such evidence is to be excluded. There is certainly nothing in the extracts made from Bishop and Blackstone which gives any support to the proposition.
There can be no doubt bat these two men, defendant and Mortimer, murdered old man Apgar, and I see no error in the record before us, and the judgment should be affirmed.