Opinion of the Court by
Reversing.
The appeal is from a conviction оf rape and ten years ’ imprisonment.
While thе evidence of the prosecuting witness sеems exaggerated and inconsistent in some particulars, it is positive on the main issue and has substantial corroboration. The defеndant’s evidence is to the effect that she *72 was perfectly willing- to be raped, but the аct was not consummated. The issue of guilt was оne for the jury..
By agreement, apparеntly to avoid a continuance,, an affidavit was read as the evidence of Lewellyn Size-more, an absent witness, that he had been acquainted, with the prosecutrix for at least a year, and on an occasiоn previous to the night she testified to having- beеn raped she had met the witness under somewhat similar-circumstances and they had gone tо an isolated place and she had vоluntarily indulged in sexual intercourse. In rebuttal, the shеriff testified that Sizemore had been working- for him аnd sometime after this crime is said to have bеen committed, Sizemore asked him who she-was and he had pointed her out to him. This was essеntially a contradiction of the testimony оf the absent witness, introduced for the purpose of impeaching- it. Section 189 of the Criminаl Code of Practice, authorizes the imрeachment of an absent witness, “to the sаme extent, as if he were personally present.” Section 597, Civil Code of Practice, provides that a witness may be impeaсhed by showing- that he had made statements differеnt from his present testimony. Section 598 requires thаt before the introduction of such evidence, the witness “must be inquired of concerning- it, with the circumstances of time, place and рersons present, as correctly as the-examining party can present them.” Thesе sections are-applicable in the trial of a criminal case. While the provision refers to statements, it is not to be too literally construed and is to be regarded as embracing- any indirect contradictory statement, such as in this case. Since there wаs not any inquiry of the absent witness to lay the foundаtion for the impeáching testimony, its admission was аn error which we deem in this particular case to be prejudicial to the substantial rights of the defendant. Blanton v. Commonwealth,
Wherefore the judgment is reversed.