
    John C. Lawler v. Elizabeth McPheter et al.
    1. Distinction between Instructions and Rulings.—Instructions proper are directions in reference to the law of the case, but what a court says on withdrawing testimony already given in, from the consideration of the jury, is a ruling, and not an instruction.
    2. Exception to Ruling Withdrawing Testimony.—In such case an exception to the ruling of the court is sufficient without any statement of the character or purpose of the testimony.
    3. Impeaching a Witness by Contradictions.—While it is necessary that the time,, place and persons present shall be given, it is not necessary that the impeaching •witness, when called, shall be able to give the exact date. It is enough if it appears that the impeaching witness is about to speak in reference to the same declaration or conversation to which the attention of the principal witness has been called.
    Filed May 11, 1881.
    Appeal from Washington Circuit Court.
    David M. Alspaugh and John C. Lawler, for appellant,
    cited JBennett v. O'Byrne, 23 Ind. 605, as to dates in impeaching testimony.
    S. B. Voyles, for appellees,
    cited Etter v. Armstrong, 46 Ind. 197, as to the mode of exception; Baltimore, eta., B. R. Co. v. Lansing, 52 Ind. 231; Toledo, etc., R. R. Co. v. Goddard, 25 Ind. 185; Meek v. Keene, 47 Ind. 77 ; Bowman v. Phillips, 47 Ind. 343; Mitchell v. Chambers, 55 Ind. 294, as to the record showing the purpose and facts of withdrawn testimony; also, 25 Ind. 185; 30 Ind. 257; and Hill v. Gust, 55 Ind. 51, as to laying foundation for impeachment and the matter of time.
    A. B. Collins, also for appellee,
    cited 1 Greenleaf, § 462; 49 Ind. 119; 37 Ind. 57; 26 Ind. 393, as to the rule of impeachment.
    HefFren & Zaring, also for appellees,
    cited Riley v. Murray, 8 Ind. 356, as to the discretion of a court in trying a cause on the merits, in excluding irrelevant testimony; also, Fleming v. Flagg, 8 Ind. 363, on same points; and Rockhill v. Spruggs, 9 Ind. 34; Lyon v. Perry, 14 Ind. 515; Pennington v. Nave, 15 Ind. 325, as to effect of harmless error; Freeman v. Bowman, 25 Ind. 236; Dunning v. Driver, 25 Ind. 271; Holcraft v. King, 25 Ind. 361; Anderson v. Coble, 26 Ind. 329; Hedge v. Sims, 29 Ind. 577, as to estoppel to complain of a party’s own negligence in providing evidence.
   Opinion of the court by

Mr. Justice Woods.

Suit by appellant against the appellees for the alleged balance due on a promissory note. Answer—denial and payment by George McPheter. Verdict and judgment for the appellees.

The only question made here is, whether the court erred in withdrawing certain testimony from the jury. The defendant, George McPheter, testified as a witness in behalf of himself and his co-defendants, in support of the plea of payment, and on cross-examination said : I was present at the residence of Samuel McClana-han, in Salem, on the 26th of March, 1878; Mr. Lawler, Mr- and Mrs. McClanahan and my mother were there. * * * I did not say at that time, place and in the presence of the parties named, in-reply to a statement made by Mr. Lawler to Mrs. McClanahan (that it would require her to furnish about $800, including the $415.45 already advanced, to complete the payments for the land.) ‘ I think that is about right.’ I heard no such conversation.”

Upon this foundation laid in the cross-examination of said witness, the plaintiff, in rebuttal, introduced Samuel McClanahan as a witness, and, concerning his testimony, the record is as follows:

Ques. “ Did the defendant George McPheter, at your house, in Salem, on the 26th day of March, 1878, in the presence of Elizabeth McPheter, Mrs. McClanahan and yourself, say, in reply to the statement made by Mr. Lawler to Mrs. McClanahan, that it would require her to furnish about $800, including the $419.45 already advanced, to complete the payment for the land, I think that is-about right.’
The witness answered, I can’t recollect whether that is the date. I can’t tell if it was three or six months ago. It was the only time they were there together when I was present.’ Here the defendants objected to the witness answering further unless he could state that the conversation occurred on the 26th day of March,. 1878, the exact date fixed by the plaintiff in his question to George McPheeter. The court decided that the witness might answer,, but notified the parties that his testimony would be withdrawn from the jury, if the court, on further examination, should conclude it was not admissible. The witness then answered : George said I think that is about right.’ Cross-examined ; Gentlemen, I can not state the day or the month on which that conversation occurred at my house. I paid no attention to the date.’”

The evidence being all in, the court instructed the jury that it had concluded that the testimony of this witness was inadmissible, and the same was withdrawn, and they should not consider it. The plaintiff excepted.

The counsel for the appellees claim that the action of the court as set forth, cannot be reviewed by this court, because not made a ground for a new trial in the motion therefor. In reference to this subject the motion for new trial contains this: 2d. Error of law occurring at the trial, etc., in this that the court erred in ex-eluding from the consideration of the jury the evidence of Samuel McClanahan, a .competent ivitness, which evidence consisted of a ^conversation between the plaintiff and the defendant, George Mc-Pheter, at the residence of the witness.”

This was sufficiently explicit to recall the attention of the court to the ruling complained of, and is therefore sufficient to present the question here. It is not, as counsel for the appellees contend, a question arising on an instruction of the court to the jury. Instructions proper are directions in reference to the law of the case; but that which the court said in reference to the testimony under consideration was simply a ruling of the court, withdrawing the evidence from the jury, and the motion for a new trial properly referred to it as such. Stanly v. Sutherland, 54 Ind. 339. Neither is there anything in the suggestion that the record fails to show the object for which the testimony was attempted to be introduced, or what facts were expected to be established by the witness. If this witness had not been allowed to give his testimony at all, there ■would, doubtless, be pertinency in these considerations, but the testimony having gone to the jury, it was needless to inform the court that it was expected to elicit from the witness that which the witness had already said, and the court having withdrawn the testimony from the jury, an exception to the action of the court is sufficient, without any statement concerning the character or purpose of the evidenee.

The testimony so excluded had a direct tendency to contradict or at least discredit the testimony of *said George McPheter in regard to the payments in dispute, and was properly admissible by way of impeachment and in rebuttal. It may possibly be that the appellant was not harmed by the exclusion, and that the result would have been the same with the testimony in, which was ruled out. Counsel should rather have thought of this, when moving the court to the omission of the error. We cannot say that the error was harmless. While it is necessary in laying the foundation for impeaching a witness by proof of contradictory statements, that the time, place and persons present shall be given, it is not necessary that the impeaching witness when called shall be* able to swear to the exact date. It is enough if it appear, as it clearly did appear in this case, that the impeaching witness is about to speak in reference to the same declaration or conversation to which the attention of the principal witness has been called.

This court has said, “the rule on this subject is a practical one, and is founded on clear principles of common sense; the exact time of a conversation it is often impossible to fix; and to require it would be simply to cut off all opportunity of impeachment in such cases. The object to be attained is to call the witness’ attention to a particular conversation, so that he may not be taken by surprise. * * * Usually dates are the least efficient of all means which can be used to refresh one’s memory of events, and sometimes they afford no aid whatever. Each case depends somewhat on its own circumstances.” Bennett v. O’Byrne, 23 Ind. 604; Wilkerson v. Rush, 57 Ind. 172.

Judgment reversed with costs and with instruction to grant a new trial.  