
    [No. 2006.
    Decided January 22, 1896.]
    The State of Washington, Respondent, v. Sam Nelson, Appellant.
    
    CRIMINAL LAW — PROSECUTION BY INFORMATION—RECEPTION OF EVIDENCE IN REBUTTAL—CORROBORATION.
    Prosecution by information is authorized when it appears that the defendant is in custody on a charge of felony and that the court is in session and the grand jury is not in session.
    Evidence tending to establish a different state of facts from that testified to by a witness is not such impeaching testimony as will permit the introduction of testimony in rebuttal to sustain the witness who has been contradicted.
    Appeal from Superior Court, Columbia County.— Hon. R. F. Stukdevant, Judge.
    Affirmed.
    
      Griffitts & Nuzum, for appellant.
    
      Will H. Fonts, Prosecuting Attorney, for The State.
   The opinion of the court was delivered by

Hoyt, C. J.

Defendant was convicted of the crime of burglary, and from the judgment and sentence imposed has prosecuted this appeal. The first reason assigned for reversal is that the superior court had no jurisdiction because the necessary facts which would entitle the prosecuting attorney to file an information did not exist. The argument upon this question proceeded upon the theory that the record of the court below did not show that any of the conditions required by the statute, upon which the prosecuting attorney was authorized to file an information, existed. From the original transcript nothing was made to appear in relation to this question, but by a supplement thereto sent up by the respondent it appears that the defendant was in custody on a charge of felony and that the court was in session and the grand jury not in session. Hence, the conditions required by the statute were shown to exist and were sufficient to authorize the filing of the information.

The only other errors assigned are founded upon rulings of the court in the admission and rejection of testimony. As to the admission of testimony, the only complaint is that the court allowed certain testimony to be put in by way of rebuttal that should have been introduced as a part of the plaintiff’s principal case. But the statement of facts fails to disclose any such cicrumstanees as would authorize us to reverse the judgment for the reason that .the court abused its discretion even if we should come to the conclusion that the contention of the appellant, that the testimony should have been introduced as a part of the principal case, was correct. The appellant had introduced one Hayden as a witness who testified to certain facts. After-wards the respondent introduced testimony tending to show a different state of facts. Then appellant sought to put in additional testimony in support of the statements of Hayden. The ground upon which he sought this was that the respondent by its testimony had impeached the witness Hayden, and that on that account he was entitled to sustain him. If testimony had been introduced which was strictly in impeachment of the witness Hayden, there would be force in the contention of appellant that he should have been allowed to put in testimony to sustain him. But evidence tending to establish a different state of facts from that testified to by Hayden was ndt impeaching testimony within the meaning of the rule which allows a party to sustain a witness who has been impeached by testimony offered on the part of the other party.

The judgment and sentence must be affirmed.

Dunbar, Scott, Anders and Gordon, JJ., concur.  