#### The State v. Davis.

Criminal Evidence: contradictory statements of witness out OF COURT : instruction. Defendant was charged with an assault with intent to commit murder. His wife gave evidence on the trial tending to prove that he acted in self-defense. In rebuttal the State introduced evidence of statements made by her before the trial, which were inconsistent with her testimony, and which, if true, showed defendant to have been the aggressor. *Held*that such rebutting evidence was admissible only as affecting the credibility of the witness, and that an instruction (see opinion), from which the jury might infer that it was to be considered in determining the question of self-defense, was erroneous.

*Appeal from Lucas District Court.*— Hon. Dell Stuart, Judge.

Filed, June 1, 1888.

The defendant was accused by indictment of the crime of assault with, intent to commit murder. The jury found him guilty of assault with intent to commit manslaughter, and the court pronounced judgment against him on the verdict, and he appeals.

*Mitchell &*Penick, for appellant.

*A. J.*Baker, Attorney General, for the State.

Reed, J.

Defendant’s wife, who was present at the occurrence in question, gave evidence on the trial, and her evidence tended to prove that defendant, in the transaction, acted in self-defense. In rebuttal, the state introduced evidence which tended to prove certain statements or admissions made by her before the trial, which it was claimed were inconsistent with her testimony. The court gave the following instruction: “There has been some evidence of statements by witnesses in conversations shortly after the trouble in controversy. *579Admissions and statements made by parties in conversations should be received and considered carefully. All due allowance should be made for a possible misunderstanding of what the party said, or of the failure of memory to correctly retain just what was said. Admissions and statements in loose and random conversations are considered to be of an inferior grade of evidence. But when the evidence is clear and .satisfactory, and the admission or statement was clearly understood and correctly retained by the memory of the witness, and clearly stated by him, then the evidence is entitled to the same weight and consideration as other satisfactory evidence.’''’ This instruction was calculated to mislead the jury. They would understand that it laid down a rule for their government in considering the evidence wiih reference to the statements and admissions of defendant’s wife; for that was the only evidence in the case to which it could have had reference. They would also understand that, if the alleged statements were proven, they were to consider them in the determination of the case; and, abstractly, that is correct. But the vice of the instruction is that it gave the jury no direction as to the subject to which the evidence was applicable. If the witness made the statements attributed to her, and they are true, the defendant was the aggressor; and, under the instruction, the jury doubtless understood that they were to consider them, if they found them proven, in determining that question. But, as it is, they were mere hearsay. The state was entitled to introduce the evidence as affecting the credibility of the witness, but for no other purpose, and the jury should have been so instructed. It is true, the court, in another instruction, < told the jury that a witness might be impeached by proof of statements made by him at other times contradictory of his testimony. But they were not told that the evidence of contradictory statements could be considered only in that connection. The vice of the instruction was therefore not cured.

Eeveesed.