#### STATE, Respondent, *v.*BROADBENT et al., Appellants.

(No. 1,832.)

(Submitted November 12, 1902.

Decided January 2, 1903.)

*Criminal Law■*— Witness—Impeachment ■— *Cross-Lxammation.*

1. Defendant, having as a witness denied Ms guilt, may for tbe purpose of impeachment be ashed on cross-examination if he did not make statements to the contrary, and having denied making some of them, and stated that others, though made, were made under inducements, and were false, the persons to whom they were alleged to have been made may, for the same purpose, on rebuttal contradict him.

*3432. To the extent that testimony is admissible to impeach one defendant, testifying for himself and his co-defendant, his co-defendant is subject to be affected thereby.

3. Defendants in a criminal case, the evidence tending to show that a witness for the state, and ex-convict, is friendly to the prosecution and hostile to defendants, and that he was visited in the penitentiary by the prosecuting witness and taken into his employ, should be allowed to ask him on his cross-examination questions showing his relations to the prosecuting witness and his animus in the case.

*Appeal from District Court, Custer County; O. II. Loud., Judge.*

Wixxiam BiioadbeNt and James Donaldson were convicted of grand larceny, and appeal.

Beversed.

*Mr. William Wallace, Jr., Mr. II. J. Haskell, Mr. O. F. Goddard,*and *Mr. Sydney Sanner,*for Appellants.

*2Ir. James Donovan, Attorney General,*for tlie State.

ME. JUSTICE MILBUEN'

delivered the opinion of the court.

The defendants were convicted of the crime of grand larceny, having been duly charged by the county attorney with having on the 1st day of September, 1897, in the county of Dawson, stolen 600 sheep, of the value of $2,700, the property of E. S. Webster, Aldo Sanford, and D. O. Webster, copartners as Webster, Sanford & Co. From the order denying’ the motion of defendants for a new trial and from the judgment, the defendants, and each of them, ajipeal.

There are thirty-seven alleged errors of the district court argued under ten heads in the brief of counsel. There were twenty-ono witnesses examined, and the testimony covers two hundred and twelve pages of the record. It will not be necessary to talce up seriatim the exceptions which were saved to the rulings of the court as to admission of evidence.

1. The first specification in the brief depends upon assigned errors 5, "6, 17, 18, 19, 20, 27, 28, 33, 34, and 46. All of these refer to alleged confessions and admissions of the defendant *344Broadbent not made in tbe presence of bis codefendant, Donaldson. Tbe brief of counsel treats these alleged confessions of Broadbent, first, as to their effect upon him; and, second, as to their effect upon his codefendant Donaldson. We first consider the rulings of the court complained of SO' far as they affect Broadbent himself. It apjoears that two witnesses, one Hand and one Beatty, ex-convicts, testified as to certain admissions and confessions made by Broadbent. Counsel admits that their testimony was admissible as to Broadbent. The contention, so far as the admissions alleged to have been made by Broadbent against his own interests are concerned, is as follows: F. S. Webster, prosecuting witness, while upon the witness stand as a witness for the state in its case in chief, testified as to certain self-incriminating statements made by Broadbent. The court, upon consideration and on motion of the defendants, finally rejected these statements, holding that they were involuntary, and therefore not admissible. The defendant, having been put upon the witness stand by his counsel in his own behalf, was cross-examined as to these alleged admissions and confessions made to Webster, the questions on cross-examination, having been allowed over the objection of the defendant. The defendant thus cross-examined admitted having made one or more of the admissions, but undertook to explain by saying that Mr. Webster came to him while under arrest and engaged him in conversation, and promised to procure him a bail bond so he could be at large if he would testify for the state and against Donaldson, his codefendant, and that he made these admissions in order to procure this bail bond, but that he lied in so doing, and thought that he was doing right in lying to Mr. Webster for the purpose of getting a bail bond. Certain other alleged admissions concerning which he was interrogated on cross-examination ho denied having made. - Proper foundation appears to have been laid for rebuttal, if rebuttal were proper. Mr. Webster, having been put upon the witness stand in rebuttal, was examined, over the objection of the defendants, concerning the matter of these admissions or confessions and the question of inducement. Defendants’ objection was principally based *345upon tlie fact that tbe court had declared in the state’s case in chief, upon cross-examination of Webster, that the admissions or confessions were involuntary and inadmissible, and that therefore the state was precluded in law from introducing them on cross-examination of the defendant on rebuttal, or at all. The court allowed the cross-examination of the defendant and the rebuttal evidence of Webster, holding that, “if the defendant goes on the witness stand and denies his guilt of the crime charged, then the state is permitted, by way of impeachment or contradiction, the proper foundation being laid, to show statements inconsistent with the testimony which he gives upon the stand.” The question whether the court erred in rejecting the evidence of Webster in the case in chief as to the alleged confessions as substantive evidence tending, to show guilt is not presented, and therefore we do not p-ass upon the same. The question is, did the court err against defendants, or either of them, Broadbent being a witness in his own behalf, in permitting evidence to- be introduced in rebuttal of statements and denials made by him on cross-examination, not as substantive evidence, but for the purpose of contradicting him as a witness? We think not. The court in its charge to the jury, instruction No. 16, said to them as follows: “The jury are instructed that certain testimony has been introduced in the nature of admissions or confessions of guilt. This testimony was, in the first instance, held to be incompetent by reason of the fact that some inducement had been offered to the defendant making such admissions or confessions, and it was therefore excluded; but later in the course of the trial the defendant making such statements having become a witness in his own behalf, and having denied all knowledge of, or participation in, the offense charged, the court permitted such testimony to be introduced in this case for the purpose of impeachment and contradiction of the- statements made by such defendant while upon the witness stand. The court instructs you in relation to this testimony that this evidence is to he considered by you, together with all the other evidence in the case, for what you deem it to be worth as impeaching the credibility of or contradicting the testimony of *346tbe defendant making such statements or confession.” Tbe purpose of this instruction apparently was to say to tbe jury that tbe testimony of these alleged admissions or confessions was not admitted as substantive evidence tending to sbow guilt, but tbat tbe jury might consider tbe fact that tbe defendant bad made such statements, if they believed they were made and tbe circumstances surrounding tbe making of tbe same, for what they were worth in judging tbe credibility and truthfulness of tbe witness. Considering tbe remarks of tbe court heretofore quoted, with this instruction, this apparently was tbe idea of tbe court attempted to be expressed; but tbe language is such tbat it might have been misunderstood by tbe jury, and they might possibly have understood it to mean tbat tbe testimony relative to tbe alleged admissions and confessions might be considered by them as proving confessions, and not merely as affecting tbe truthfulness of tbe witness. Tbe declared purpose of tbe court in admitting this evidence on cross-examination and in rebuttal, as shown by tbe remarks of tbe court hereinbefore quoted, and instruction No. 16, is perhaps inconsistent with the idea expressed in instruction 14, which is as follows-: “You are instructed, further, tbat if declarations or admissions of either of tbe defendants, connecting or tending to connect him with tbe commission of tbe offense charged, have been proven, you are to receive tbe proof of such declaration or admissions with caution as applying to the defendant making such declarations or admissions.” Instruction 14 by its language covers all • confessions appearing in proof, and would lead, tbe jury probably to believe tbat they were to be received against the' defendant Broadbent, although with caution. We do not find error against tbe defendants, or either of them, in tbe rulings of tbe court complained of respecting tbe cross-examination of Broadbent and the evidence of Webster in rebuttal, but recommend tbat in a retrial of this cause tbe court be more careful to clearly state tbe law of tbe case in its instructions to tbe jury affecting tbe matter of admissions or confessions as they may appear.

As to' tbe effect of tbe testimony relating to admissions or *347confessions made by Broadbent implicating* bis codefendant Donaldson, and made ontside of tbe bearing of tbe latter*, tbe court instructed tbe jury not to consider them as against Donaldson. Apart from tbe seeming inconsistency between tbis instruction and instruction numbered 16, wbicb shows tbe sole purpose for wbicb sucb admissions or confessions were admitted, tbe court was correct in so instructing tbe jury, and we find no error in tbis bebalf prejudicial to tbe defendant Donaldson; but, on tbe other band, tbe court might have gone farther, and charged tbe jury that, so far as sucb testimony had any tendency to affect the credibility of Broadbent as a witness, it did affect bis codefendant Donaldson in so 'far as it might impeach Broadbent, who was not only a witness in bis own bebalf, but was a witness for Donaldson.

2. As to alleged errors 29, 30, and 31, it is only necessary to say that it appears that tbe court was strictly technical in sustaining tbe objections to tbe questions referred to1, and too much technicality and restriction is not to be recommended when it is evident from tbe connection what tbe question plainly means to a person of ordinary understanding.

3. Defendants assigned error (7, 8, 9, 10, 13, and 14) in that the court refused to allow certain questions to be asked of the ex-convict Hand, a witness for the state. The evidence tends to show that he was friendly to the prosecution and hostile to the defendants, or one of them at least; that be was visited in tbe penitentiary by the prosecuting witness Webster, and taken into tbe employ of tbe latter; and tbe questions were very proper, as likely to educe evidence from Hand showing bis relations to tbe prosecuting witness and bis animus in tbe case. Nothing is more important in a felony case than that each party should be allowed to thoroughly cross-examine tbe adversary’s witnesses. Again, we say that full cross-examination, within reasonable limits, must be permitted. Tbe court erred to- tbe prejudice of tbe defendants in tbis matter in tbis case. Tbe court erred, as said in assignments 11 and 12, but afterwards tbe witness testified in cross-examination as to these points, and *348tbe errors appear harmless. *(Cobban*v. *Hecklen, ante,*p. —, 70 Pac. 805.)

4. Alleged, errors 35, 36, and 40 are well assigned. Tbe court erred in permitting tbe impeaching witnesses to testify to tbe use or nonuse of tbe words “certain things” by Webster to Broadbent, for tbe reason that these words were not used by the defendant Broadbent as words actually spoken by Webster, but as characterizing things narrated by him as actually said to him by Webster. Broadbent testified that Webster mentioned matters which he said Webster wished him to swear, to, • and after narrating them he lumped them as the “certain things” that Webster wished to be told. He did not say that Webster used the words “certain things.” No foundation was laid for the questions asked, and the objections should have been sustained.

5. Assignments of error Nos. 2 and 3 are not tenable. As to assignment No. 16, considering the answers of the witness on cross-examination as to the same matter, we find no error.

6. We discover no error as suggested in assignment 41. The defendant Donaldson testified concerning the matter under consideration, and the evidence complained of was proper in opposition.

7. As to refused instruction “g,” we find it substantially covered, and there was no error assigned.

8. Refused instruction “d” should have been given.

9. Assignments 49 and 50 are not well taken. We see no prejudice to.the defendants.

10. It is not necessary to consider the matter 'of newly discovered evidence on motion for a new trial, as the case must be reversed for the reasons heretofore stated.

The order denying the motion for a new trial and the judgment are reversed, and the cause is remanded.

*Reversed and remanded.*

Me. Justice Pigott concurred in the reversal, but retired from the bench before the preparation of this opinion.