
    [No. 4654.]
    GEORGE O. LEONARD v. GEORGE L. KINGSLEY.
    Impeachment of Witness by his Lhttebs.—If a person not a party to an action is examined as a witness, letters written by him cannot afterwards be put in evidence by the party not calling him, unless, when examined as a witness, his attention is called to them, and the other party is afforded an opportunity of cross-examining him in relation to them.
    Ebbob is pbeshmed to Injhbe.—When the appellant has shown error in the admission of testimony, the error will be presumed to have been injurious to the adverse party, unless the contrary clearly appears.
    Appeal from the District Court, Second Judicial District, County of Tehama.
    The plaintiff resided at Eed Bluff, Tehama County, and was engaged in business as a gunsmith and glove-maker. He sued the defendant for a libel contained in a card published by the defendant in the Eed Bluff Sentinel, published at Eed Bluff. The card contained, among other things, the following:
    " Speaking about lying, did you ever lie to Mr. Howard that caused him to sell his home and his business, and come here to engage in business with you ? You deceitful creature! Get a man here because he has money, and then attempt to rob him as you did. Borrowed his money to use for a short time, but when called upon for it, put him off from time to time, and then make a homestead of your house; and by not paying him and doing as you agreed, have compelled him to import and sell a few guns for a reasonable profit. That hit your corns, and no doubt he will ever be a thorn in your ribs as long as he remains in Eed Bluff.”
    During the trial the plaintiff, who was a-witness in his own behalf, was asked on cross-examination if he had ever written letters to W. F. Howard, impeaching the character of defendant’s wife. He answered that he did not think he had.
    The defendant introduced in evidence the deposition of Howard, taken at Saratoga Springs, New York. The plaintiff’s counsel, Mr. Pendegast, in offering rebutting testimony, said: “I offer this series of letters, written by W. F. Howard from Saratoga Springs, and addressed to GL O. Leonard, marked ‘Exhibits One, Two, Three, and Four.’ The first is dated December 10, 1872; the second, January 24, 1873; the third, February 12, 1873; and the fourth, February 17, 1873.”
    Mr. Braynard. “For what purpose do you offer the letters?”
    Mr. Pendegast. “This purpose: there is a charge in this card, on which this suit was brought, of robbery—an attempt to rob this man Howard—on the part of Leonard, and there is an attempt to support that charge by the testimony of Howard himself, and, perhaps, somewhat by the testimony of Kingsley. I offer these letters to show that the very man who Kingsley claims was robbed, after the time of the alleged robbery, and for a series of months, wrote in friendly correspondence to Leonard, the alleged robber, pressing him to engage in business enterprises with him; offering to advance him money, and speaking of and to him in the kindest of terms.”
    Mr. Braynard. “We object that it is the declaration of a third party as to business transactions; upon which business transactions the individual whose letters are at this time produced was interrogated in the deposition that has been offered in evidence; and if the gentleman wished to question him relative to these business transactions which ho narrates in the deposition, he had an ample opportunity of putting his cross-questions at the time. They seek now to introduce the declarations of a third party,.without having given us any opportunity whatever of cross-examination. We object, further, that the letters sought to be introduced are inadmissible, if the object of the introduction is to discredit the witness Howard, the parties having made him their own witness.”
    
      Mr. Pendegast. “This is not the object, by any means; we do not intend it as matter of impeachment. ”
    The Judge. “The objection will be overruled.”
    Defendant excepted.
    Mr. Pendegast read the letters.
    The plaintiff had the verdict of-a jury and judgment in his favor.
    The defendant appealed.
    
      Creed Haymond, P. B. Nagle and C. P. Braynard, for the Appellant.
    
      W. W. Pendegast, for the Respondent.
   By the Court:

The letters from Howard, put in evidence by the plaintiff against the objection of the defendant, were improperly admitted. Howard was not a party to the action, but had been examined as a witness in the cause on behalf of the defendant, and his deposition had been put"in evidence. If the plaintiff desired to use the letters as evidence, he should have called the attention of the Avitness to them, and have afforded the defendant an opportunity to cross-examine him in respect to them. He might have shown by the testimony of Howard the circumstances under which the letters were written, and possibly have so explained the transaction as to render them harmless for any purpose. Standing alone and unexplained, the letters were not admissible for any purpose. They are not before us, nor do their contents appear in the record, except in so far as they may be inferred from the statement of counsel, at the time they Avere offered; and it is urged in argument, that in the absence of the letters, it cannot bo presumed that they were injurious to the defendant’s case, even though they were improperly admitted in evidence. But the rule long recognized and acted upon by this Court is, that when the appellant has shown error in the admission of evidence, the error will be presumed to have been injurious to the adverse party, unless the contrary clearly and affirmatively appears. If the production of the letters would have shown that they could not have damaged the defendant, the respondent should have had them incorporated into the record.

Judgment and order reversed, and cause remanded for a new trial.  