The defendants, Henry Barbar and Norman Ruth, were convicted of theft of property (a number of bottles of whiskey) of the value of $200, and each was sentenced to serve ten years at hard labоr in the state penitentiary. They are appealing.
In order to obtain a reversal of the convictions and sentences defendants rely primarily on two perfected hills of exceptions, one taken to the overruling of certain objections made during the trial and the *511 ■other to the denial of their motion for a new trial.
The bills were reserved under the following circumstances: The state produced as a witness one Joseph D. White, in whose possession the stolen property was ultimately found, who testified that he had purchased the whiskey from a Walker Ferguson for $60. The state then called Ferguson who, when questioned by the assistant district attorney, denied that he had delivered any whiskey to White or received any money from him. Whereupon, such attorney informed Ferguson that the state intended to impeach his testimony with a written statement made by him to police officers on a date prior to the trial and out ■of the presence of the defendants.
Defense counsel objected to the impeachmеnt for the reason the state had not shown that it was actually surprised by the responses of its witness. But after a discussion among all counsel and the court, during which the jury was retired, the court ruled that the assistant district attorney, because he was surprised, could impeach the witness by questioning him about the prior written statement. The jury was then returned, and defense counsel reserved a bill upon the ■overruling of their objection.
Thereupon, the statement was read in its ■entirety to Ferguson in the presence of the jury. In it he had purportedly stated, in effect, that on the night following the alleged theft, at the rеquest of the defendants, he had found a purchaser for whiskey which they said they wanted to get rid of; that they put the whiskey in his car and he delivered it to White; that White paid him $80 which he delivered to the defendаnts; and that they had given him $10. Defense counsel again ob j ected urging that the statement “is rank hearsay.” The objection was overruled and a bill reserved.
Following the reading of the written statement to Fеrguson, in the presence of the jury, the assistant district attorney asked him if he had made it and if the signature thereon was his. He attempted to plead the Fifth Amendment, but was ordered by the court to answer the question. Whereupon, he unequivocally admitted having made the statement. The state then offered it in evidence unrestrictedly as the state’s Exhibit 1. Defense counsel objected to its introduction ; hоwever, the ob j ection was overruled and the statement admitted. Again, a bill of exceptions was reserved.
All of the above recited objections and exceptions are embodiеd in the first perfected bill; and the mentioned evidence, as well as the remarks of the court and counsel made in connection with the objections, is attached to the bill.
In the motion for a nеw trial it was urged (among other things) that it was reversible error for the judge to permit the statement to go to the jury without any instruction or caution by him as to its effect, that is, that it was solely for the purpose оf impeaching *513 Ferguson’s testimony and that it could not be used as substantive evidence on which to base a verdict of guilty. Defendants also reiterated therein their obj ection to the state’s impеaching its own witness because of a failure to show surprise. The motion was overruled and the second perfected bill reserved.
We shall pretermit the question of whether the state established its surprise at Ferguson’s testimony sufficiently to permit it to impeach him. This is done because we are of the opinion that, even if such surprise existed, it was reversible error for the judge to permit the stаtement to go before the jury without cautioning the latter in any way as to its limited use.
State v. Reed,
In State v. Blassengame,
»$ * ‡
“ * * * because of its materiality, it ought not to have been allowed to go to the jury as the hearsay testimony of Roscoe without instructions from the judge that it was admitted merely to prove that Winston had made the statements, but not that they were true, and that they were not to be taken as substantive evidence against defendant. State v. Rеed et al.,
Again relying on State v. Reed, supra, we reversed a conviction in State v. Paul,
In the instant case we find that not only did the judge fail to caution the jury, specially and expressly, that the impeaching evidence should not be considered as proof of defendants’ guilt but, rather, he virtually told such body that it should so consider it. Thus, when the assistant district attоrney asked the witness, after he admitted making the prior statement, “Were you lying then or now”, the judge stated: “Well, it is up to the jury”. This was almost identically what occurred in State v. Reed, supra, which conduct wе found to constitute reversible error.
There is no doubt in this case but that the court’s permitting the unsworn, hearsay statement to be read before the jury, as well as its subsequent introduction as criminative evidеnce against the accuseds, was highly prejudicial to them. Absent its consideration, there was no evidence to connect the defendants with the commission of the alleged offense. In this situation the inference is compelling that the jury (because it had not been instructed otherwise) improperly considered the statement as substantive evidence of the defendants’ guilt. Tending to substantiatе this conclusion is the following comment contained in the state’s supplemental brief filed here:, “ * * * Thus, the jury had before it all of the circumstances for evaluation and the State submits correctly gаve credence to the witness’ [Ferguson’s] testimony as contained in the written statement." (Italics and brackets ours.)
The state calls attention to the fact that defense counsel did not request the judge to give the proper instruction when the statement was introduced. We have carefully examined the records of the cases cited above and we find that in none of them was such a request made. Evidently, this court hаs aligned itself with those jurisdictions which declare that when such evidence is introduced it is incumbent on the judge, and is his duty, to especially and expressly instruct the jury as to its limited purpose.
We recognize that thеre are some jurisdictions which require that counsel request the proper instruction. However, even in some of them it has been said that the better procedure is for the court on its own motiоn to advise the jury of the restricted use of the evidence and that it should not be considered for any other purpose.
We believe that, in the absence of specific statutory authority tо the contrary, this court should continue to follow the precedent already set down by its previous decisions. When an attempt is made to impeach a witness by the introduction of prior inconsistent statements the judge *517 knows at once the limited purpose for which such evidence can be accepted. And it should be incumbent on him, and his duty, to so advise the jury without leaving it to the probability thаt, being laymen and not informed as to the niceties of the law, the members thereof will give it improper application.
The danger of such a probability is clearly recognized by this court in State v. Willis,
For the reasons assigned the convictions and sentences herein are reversed and set aside and the case is remanded for a new trial.