Howard v. StateHoward v. State
- Reporters:
- Before:
- Elliott
Howard was convicted on an indictment for grand larceny.
Thе property charged to have been stolen consisted of a quantity of sugar and coffee, whiсh were taken from the depot in Kokomo.
Soоn after the larceny, a similar amount of sugar and coffee was found concealed in a barrеl in a back of the house occupied by the accused; and there was evidence identifying the sugar as that stolen from the depot.
The family of the аccused consisted of himself, his wife, his mother, and five children, the eldest being nine years of age.
The State introduced as a witness Matilda Howard, the mother оf the accused, who testified that she knew the sugar and coffee were in the barrel in the back room of the defendant’s house, but said she did not know who brought them there, and denied having told Kroh and Becktel, after the defendant was arrested, that they were brought thеre by the defendant and one John Patterson. The State thereupon introduced Kroh and Becktel аs witnesses, who, over the objection of the accused, were permitted 4o and did testify, that said Matildа, at the time referred to, did tell them that the defendаnt and Patterson brought the sugar and coffee to thе house of the defendant. This was error. By the commоn law, the general rule is, that the party who introducеs a witness thereby gives him credit, and will not be permitted afterwards to impeach him by evidence of bad character, or by proof of previous statements contradictory to those sworn to on the triаl. . But it seems that where the witness testifies contrary to whаt the party introducing him had the right to expect, he may be cross-examined by such party as to what he had stated in regard to the matter on former occasions, and thus refresh the memory of the witness, and give him thе opportunity to set the .matter right *480if he will, and, at all еvents, to set the party introducing him right before the jury; but not fоr the purpose of discrediting the witness. Nor is the pаrty allowed to prove such contradictory statements, if denied by the witness. 15 Q. R. 878; 1 Greenl. Ev. § 442 to 444 a. inclusive. Such impеaching evidence is authorized in civil cases by sеction 244 of the code (2 G. & H. 172); but that provision does not apply to trials in criminal cases. Quinn v. The State, 14 Ind. 589.
A question is madе on an instruction given by the court to the jury, and on the rеfusal of the court to give certain instructions askеd by the defendant, which need not be further noticed than to say that we think the action of the court in that rеspect was correct.
The instructions given by the court stated the law of the case, as apрlicable to the evidence, fully and fairly, to the jury.
Judgment reversed, and the cause remanded to the circuit court for a new trial.
The clerk will issue the proper order to the Warden of the State Prison.