delivered the opinion of the court.-
The appellant, Ellerson Gofer, was indicted jointly with Floyd Carr, Lee Cofer, Fred Hamilton, and Glenn Davis for the murder of one J. IT. Pruitt. There was a severance and separate trial of the appellant, -which resulted in a conviction and sentence to life imprisonment *497 iii the state penitentiary, from which this appeal was prosecuted.
This appeal is from a second conviction of the appellant, the former conviction having been reversеd because of the admission in evidence of certain shotgun shells unlawfully seized in the search of the appellant’s home under a warrant authorizing a search for intoxicating liquors. Cofer v. State,
The appellant first contends that the court committed prejudicial error by permitting the impeachment of the testimony of a witness, Fred Hamilton, on immaterial and collateral matters.
The appellant offered as a witness in his behalf his codefendant, Fred Hamilton, and on cross-examination of this witness, after he had been questionеd at great length in reference to matters which occurred, and incriminating statements made by the appellant and the witness prior to the killing’, he was questiоned in detail in reference to certain statements and declarations made by him out of the presence and hearing of the appellant, and long after the alleged conspiracy had been consummated by the murder of Pruitt. The witness denied male- *498 ing these statements, and in rebuttal the court permitted the state to offer the testimony of four witnesses to prove that he did make the statements.
The rule is well settled in this state that it is not competent to cоntradict or impeach a witness about an immaterial or collateral matter. Williams v. State,
The test by which it shall be determined whether a matter is irrelevant or collateral is likewise laid down in prior decisions of this court, as illustrated by the case of Garner v. State,
It is likewise well settled that the acts and declarations of one conspirator, if made after the completion or abandonment of the criminal enterprise, are inadmissible as evidence against a coconspirator. Lynes v. State,
Aside from any consideration of whether or not the jury, in the consideration of thе main issue, did or could divest their minds of the statements and declarations proven by the four witnesses, and restrict their consideration thereof merely to the imрeachment of the witness Hamilton, the court, below, by the admission of this, rebuttal testimony and the granting of this instruction, told the jury that it could and should do the very thing that is prohibitеd by the above-stated rule of law. The rule prohibits the contradiction of a witness about irrelevant and collateral matters for any purpose, and to permit such contradictions with directions that they should be considered by the jury in passing upon the credibility of such a witness would largely destroy the force аnd effect of the rule.
Counsel for the state advances a further contention that these declarations were admissible, for the reason that the proof shows that the conspiracy between the appellant and Others included a purpose and design to murder not only Pruitt but also W. IT. Wright, who with *500 P'ruitt was a witness in the liquor charges against the appellant and others, and, consequently, that the criminal enterprise had not been completed at the time the declarations were made. The evidence is wholly insufficient to establish any conspiracy or design to kill, or otherwise remove, the said Wright, and consequently thеre can be no merit in this contention.
The appellant next complains of' the second instruction granted to the state. The language of this instruction is subjеct to some criticism, and it should be clarified before being used at another trial, but we think any alleged errors in this instruction were cured by instructions granted to the аppellant which clearly and accurately stated the law applicable to the facts.
The appellant next complains of the аdmission in evidence of two certain shotguns which, it was alleged, were illegally seized in the homes of Lee Gofer and Floyd Carr, under a warrant authorizing a seаrch of the said residences for intoxicating liquors. It has been repeatedly held by this court that a defendant cannot complain of a search of premises or property which is neither owned by him nor in his possession or control, and consequently there is no merit in this contention. Lee v. City of Oxford,
There is in thе record a purported special bill of exceptions signed by the attorneys who represented the appellant in the court below. It will not bе necessary, however, to now pass upon the validity of the statute under which this bill of exceptions was prepared and signed, or 1o decide the quеstions attempted to be raised thereby, as these questions and alleged errors may, and probably will, not arise upon a new trial of the cause. For the error indicated, however, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.