dissenting.
Allison was the state’s witness. Twice during the progress of the cross-examination of Allison by the county attorney, defendant objected on the ground that the state was impeaching its own witness. It is quite apparent that under the repeated holdings of this court the state had the right, upon a proper foundation being shown, to impeach its own witness, and that the ruling of the court on the objection as made was correct. Later the state offered the signed statement of Allison. The objection then made was that it was “incompetent, irrelevant, and immaterial.” This the court overruled, and the exhibit was received for the sole purpose of impeaching the witness.
This court, in its first opinion, considered the statement to be substantive evidence, and it does not seem improbable that the jury did likewise and that the verdict of guilty rests thereon. It is likewise apparent that, had proper objection been made and the evidence admitted over that objection, it would have been reversible error. That appears to be the position of the majority. See Masourides v. State, 86 Neb. 105, 125 N. W. 132; Erdman v. State, 90 Neb. 642, 134 N. W. 258. However, the majority opinion reaches the conclusion that “the defendant’s counsel did not make the proper and necessary objection, or lay the required foundation for a reversal of the case.” In the light of that conclusion it is obvious that whether or not the county attorney was surprised and the evidence thereby admissible is not material to a decision here.
What foundation was necessary? The majority appear to hold that a sufficient foundation of surprise is shown when a witness by his answers discloses that he “is going back on a written statement which he has given.” That, however, is not sufficient.
The rule appears to be that, “In addition to the- requirement that a witness give material prejudicial testimony, in *885order that the party calling him may be allowed to impeach him by proof of prior inconsistent statements it must also appear that such a party was taken by surprise * * * and that such surprise was bona fide and founded upon an honest belief that the witness’ testimony would be different from that given.” 3 Wharton, Criminal Evidence (11th ed.) 2280. See, also, 3 Wigmore, Evidence (3d ed.) 397; Underhill, Criminal Evidence (4th ed.) 854; 70 C. J. 1032; Blochowitz v. Blochowitz, 122 Neb. 385, 240 N. W. 586.
Was the county attorney “actually surprised” by the testimony of the witness Allison ? The county attorney did not claim that he was surprised. The record does not show surprise, but clearly shows lack of surprise. The events here considered happened upon the second trial of the defendant. The statement was given to the officers before the first trial. Allison was subpoenaed by the state as a witness at the first trial. When asked if he testified, he answered, “No; they wouldn’t let me testify; they held me off the stand. ' I don’t know why.” This testimony was stricken on motion of the state as not responsive. Allison was arrested shortly after the first trial. He was asked, “You had refused to testify to anything derogatory to the defendant had you?” and he answered, “I knew it was all false.” This last answer was stricken from the record by the court on its own motion. When called as a witness by the state, Allison, after preliminary questions, testified that he was not at defendant’s store on the night in question. Without further direct examination about the alleged crime, the state started to cross-examine him regarding the statement he had previously given. Defendant’s counsel objected that the state was impeaching its own witness. The county attorney said nothing and made no showing of surprise. The court said: “He is taken by surprise. He can impeach his own witness. Proceed.”
This is not a showing of surprise, either by the county attorney or by the incidents of the trial, that meets the requirements of the rule announced by the cited texts and the supporting cases. The incidents of the trial negative surprise.
*886It will thus be seen that, upon the mere denial of Allison that he had been in the store that day, the state proved not only his previous statement that he had been in the store, but also put in all the questions and answers as to what Allison had said was his part and the part of Cornell in handling the property, and admissions alleged to have been made by Cornell. The state then called the stenographer who had transcribed the statement, had her identify it, and put it in evidence. Thus, the entire statement was twice put in evidence as impeaching Allison’s denial that he was in the store.
It is not our task to determine the guilt or innocence of the accused. That, under proper procedure, is the duty of the jury. One of our tasks is to announce and properly apply rules of law. The rule permitting the impeachment of one’s own witness is neither properly announced nor properly applied by the majority in this case.