
    John Hudson v. State.
    [56 South. 345.]
    Witness. Impeachment. Inconsistent statements.
    
    Where in a prosecution for unlawful retailing, in order to lay a predicate for impeachment a witness for the state was asked on cross-examination if he had not made a statement before the grand jury at the time the indictment was found, that he had never bought whiskey from the defendant, it was reversible error for the court to exclude the question, as it went to the credibility of the witness.
    Appeal from the circuit court of Harrison county.
    Hon. T. M. Evans, Special'Judge.
    John Hudson Was convicted of unlawful retailing and appeals.
    The facts are fully stated in the opinion of the court.
    
      J. E. Misc. for appellant.
    The second error assigned is that the court erred in not permitting the witness, Loren King, to answer the question on cross-examination "by defendant if he did not state before a grand jury in Hardison connt-y, Mississippi, that he did not buy whiskey from the defendant, John Hudson, during the year 1909.
    This is clearly error, as it was an attempt on the part of the defense to impeach Loren King, the star witness for the state, by showing that he made a different statement before the grand jury. This defendant had the right to do, as this is clearly the law.
    This was error of the most palpable sort. A witness may be impeached by showing that he made statements before the grand jury in conflict with his testimony at the trial.
    This is the general line of the best authorities everywhere. State v. McPherson, 114 la. 492, 114 la. 492, 87 N. W. 421; Kirk v. Garrett, 84 Md. 383, 35 Atl. Eep. 1089; Commonwealth v. Meade, 71 Am. Dec. 741; Gordon v. Commonwealth, 92 Pa. St. 216, 37 Am. Eep. 672; Scott v. State, 5 S. W. 142.
    Loren King was asked straight out if he did not make •this statement before the grand jury and he was not permitted to answer. Of, course, if he had testified he made the statement before the grand jury, it would have opened up the question why he was testifying as he did on the trial, and would have been a very material contradiction. If he had denied making such statement before the grand jury, then the defendant could have produced members of the grand jury, to testify that he did make such statement, that he did not buy whiskey from Hudson in 1909. ‘But, when he was not permitted to answer this question, it shut off further inquiry and we submit that he certainly should have been permitted to answer the question, and the action of the court in not allowing him so to -do was error for which this case should certainly be reversed.
    
      James R. McDowell, assistant attorney-general, for appellee.
    The second error assigned is that witness, Loren King, who testified for the state, was not permitted to answer the question propounded to him by counsel for defense for the purpose of laying a predicate for impeachment. This witness was asked if he had not testified before the grand jury that he never did buy any liquor from the defendant in the year 1909. The state objected and the ■objection was sustained. Of course this witness could not be impeached until the proper predicate had been laid. Cheatham v. State, 67 Miss, 335; Fulton v. Hughes. ■63 Miss. 61, and numerous other cases which could be cited. I do not understand just why this objection should have been sustained. It seems to me that the court ■should have admitted it. It is not upon an irrelevant matter, but goes to the very meat of the case, that is, the credibility of the state’s witness. I do not think the court could have sustained this objection because the testimony was given before the grand jury for witnesses are not required to keep the secrets of the grand jury when questioned in the courts. If so, then no case would ever go to trial until after the six months had expired. In Underhill on Criminal Evidence, section 238, page 433, the text-book law is laid down as follows:
    “The witness whom it is desired to impeach may, upon his cross-examination, be asked if he has not made statements out of court relevant to the guilt of the accused which are inconsistent with or contradictory of his testimony given on direct examination. All the circumstances attendant upon the extrajudicial declarations must be ■embodied in the question. If he does not admit that, upon the particular occasion designated, he made the statement, it may be proved that he did in fact make it. ’ ’
    I think, therefore, that the testimony should have been admitted. Whether its exclusion is reversible error, I submit to the court. There is proof in the record of other sales. It may be that the court, upon reading the record, will feel that a conviction will result without doubt in spite of the exclusion of this testimony. I submit this proposition to the court.
   McLain, C.

Appellant was tried and convicted at the January term, 1911, of the circuit court of Harrison county, for unlawfully retailing liquor, and was sentenced. From this judgment and sentence he appeals to this court.

In our judgment, the chief assignment of error is as follows: “The court erred in not permitting the witness, Loren King, to answer the question, on cross-examination by the defendant, if he did not, before the grand jury in Harrison county, Mississippi, state, when this indictment was found, that he did not buy whiskey from the defendant, John Hudson, during the year 1909, or at any other time.” To this question the state objected, and the objection was sustained by the court. We think this was error. This witness could not be impeached until the proper predicate had been laid. Cheatham v. State, 67 Miss. 335, 7 South. 204, 19 Am. St. Rep. 310; Fulton v. Hughes, 63 Miss. 61. Several witnesses, all of whom were members of King’s family, testified that they had bought whiskey from appellant, but no two testified to the same sale.

This was a material inquiry, going to the credibility of this witness for the state. “The witness whom it is desired to impeach may, upon his cross-examination, be asked if he has not made statements out of court, relevant to the guilt of the accused, which are inconsistent with or contradictory of his testimony.given on direct examination. All the circumstances attendant upon the extrajudicial declaration must be embodied in the question. If he does not admit that, upon the particular occasion designated, he made the statement, it may be proved that he did in fact make it. ’ ’ Underhill on Crim. Ev., section 238. This was an attempt on the part of the defense to impeach the witness, by showing that he had made a different statement before the grand jury. The court refusing to allow this, the defense was not able to lay a predicate for impeachment. An impeachment could not be established until the proper predicate had been laid. In our judgment, the court erred in not admitting this line of inquiry. It was certainly not irrelevant matter, but, on tbe contrary, it was very material, as it went to tbe credibility of tbis witness.

For tbis error, we tbink tbe case sbonld be reversed.

Reversed and remanded.

Pee Curiam. Tbe above opinion is adopted as tbe opinion of tbe court, and, for tbe reasons therein indicated, tbe judgment is reversed, and tbe cause remanded.  