DISSENTING OPINION.
VALLIANT, J. —The majority opinion shows that the treaty with France has nothing to do with the law of this case and in that I fully concur.
I am, however, unable to concur in affirming the judgment of the circuit court, because, in my opinion, illegal testimony of a serious character, damaging to the defendant, was allowed to go to the jury over his objection.
The defendant was indicted for murder, and the question under the evidence on the trial was, was the billing murder, or was it excusable homicide? The testimony for the State on that vital question was'in direct conflict with that for the defendant. In the majority opinion it is held that if the story told by the State’s witnesses was true, the defendant was guilty of murder in the first degree, but that, on the other hand, if the story told by the defendant’s witnesses was true, the defendant should have been acquitted. In such case, where the two stories are in irreconcilable conflict, it is for the jury to decide which is true — which set of witnesses will be credited and which discredited, and, in such case, it is of vital importance that illegal evidence which tends to throw no light on the real question on trial, but only to blacken the character of the defendant, or of his witnesses, should be excluded.
The defendant was on trial for murder, and he was entitled to be tried for that crime and no other. The fact that he may have committed burglary four years before, or bank robbery more recently, was not *93a fact which the State was entitled to prove directly, or to infuse indirectly into the minds of the jury. Until a defendant himself brings his character into question, it is not involved in the inquiry — whether he be a good man or a bad man, he is entitled to be tried only for the offense charged in the indictment.
' And whilst it is the law that a witness may be impeached by showing that he has made statements at a former time contradictory of the statements he makes at the trial, yet this, is only so of statements that are material to the issue.
On the trial of this case the State was permitted to prove, over the objection of defendant, that one of the men in the party of the deceased had in his possession a warrant to arrest the defendant on the charge of burglary, alleged to have been committed four years before, and that warrant was read in evidence.
I can see no legal excuse for the introduction of that evidence and it seems to nJe that it was very damaging in its character. It tended to show, not the circumstances under which the killing occurred, but that the defendant was, irrespective of this killing, a bad man.
It is said that the warrant was to show that this man and his party were on the defendant’s premises for a lawful purpose. But how could that influence the conduct of the defendant when he knew nothing of the warrant, and how does it tend to prove that the act of killing occurred in the manner as told by the State’s witnesses and not in the manner as told by the defendant’s witnesses? The verdict should rest on the testimony of what occurred on the premises on the morning of the killing; the State’s witnesses said it occurred thus, while the defendant’s witnesses said it occurred so — now, how does that warrant in the pocket of one of the men tend to prove which set of witnesses told the truth? Then why was it introduced in evidence unless to show the jury that, irrespective of the charge *94in the indictment, this was a had man, of whom the State could well he rid?
The learned counsel for defendant complains that the court in its instructions failed to present for the consideration of the jury the question of whether the defendant knew that these men came in the name of the law with legal warrant. He says they came disguised as hunters, bearing no insignia of office, and giving no intimation of their real purpose, but showing only the conduct of armed men with hostile design, making violent demonstrations with their guns. And he contends that the court ought to have instructed the jury that, under the conditions, it was the duty of the attacking party to announce to the defendant that they came with a warrant for his arrest in the name of the law, so that he might understand their warlike array and bow to the mandate of the law, if he was so inclined. There is force in that argument. Even though the man was a burglar and a bank robber, no one had the right to kill him on sight, and he had the right to defend himself against an armed foe of whose purpose he knew nothing, except what he could infer from the demonstration.
In the majority opinion it is held that it was unnecessary to instruct the jury on this point because it was not a question of resisting an officer in his effort to arrest under a warrant, but that the trial court fully covered the case when it instructed the jury in effect that if the killing occurred as the defendant’s witnesses said it did, they must find him not guilty.
I am willing on that point to defer to the judgment of my learned associates. But if the question of killing an officer in resisting arrest under a lawful warrant was not in the case and, therefore, no instruction on that point was required, what excuse can be given for reading the warrant .in evidence? If the defendant was not entitled to have the jury consider the fact that he did not know that the man had a warrant for his arrest, *95what right did the State have to show that the man had the warrant?
I think it was also error, of even more injurious character, to admit in evidence the affidavit of the girl Esther Eudolph. That affidavit tended only to show that the defendant was guilty of bank robbery. Thus, while he was defending himself as best he could under the charge of murder, the State by the warrant and by the affidavit, laid upon his head the crime of burglary of date four year before, and that of bank robbery of more recent date. And not only that, but this affidavit was avowedly designed to impeach the credibility of one of the defendant’s chief witnesses. There was nothing in the affidavit, as I understand it, that contradicted anything that this witness testified to material to the issue on trial. It was only on cross-examination by counsel for the State that she was asked questions designed to elicit- evidence tending to show circumstances connecting the defendant with the bank robbery, and when her answers to those questions were denials of those circumstances, she was confronted with her affidavit, and then she said that the affidavit was not true. Whether the statements in the affidavit were true or false was immaterial, because they were statements irrelevant to the issue on trial. A witness can not be thus impeached on an immaterial issue.
Besides, even if the affidavit had tended to contradict the testimony of the witness on a material point, it ought not to have been admitted in evidence if it .was obtained in the manner in which she said it was. This was a mere child, thirteen years old when she made the affidavit, and she testified on the stand that she had been arrested, put in jail and frightened into making it. She said that they told her that if she did not sign the affidavit they would hang her father. Under those circumstances, the trial court ought to have inquired very carefully into the circumstances of the making of the *96affidavit before admitting it in evidence, even if it had been otherwise relevant and competent.
In my opinion the warrant and the affidavit were illegal, damaging evidence and because they were admitted over the objection of defendant, the judgment ought to be reversed and a new trial awarded.