
    State of Iowa, Appellee, v. I. W. Halley, Appellant.
    1 WITNESSES: Impeachment — Immaterial Contradictory Stateménts. Impeachment may not be based on immaterial contradictory statements of a witness. (See Book of Anno., Vol. I, Sec. 11255, Anno. 23 et seq.)
    
    2 WITNESSES: Cross-examination — Accused as Witness. A defendant as a witness in his own 'behalf is subject, on cross-examination, to the same tests as to memory, history, motives, and other matters affecting his credibility; as any other-witness. (See' Book of -Anno., Yol. I, Seci 13892.) : ■ . - -'
    3 CRIMINAL'LAW: Evidence — Identification of Exhibits. Exhibits are receivable' in evidence only when' properly identified.
    4 CRIMINAL LAW: New Trial — Improper Argument — Waiver. -Improper argument'is deemed waived unless objection thereto is made in the tidal court; and it is ruled on;'and an exception savfed. (See Book óf Anño., Vol. I,. See. 13944, Anno. 112 et seq¡)' "• '
    
    5 TRIAL: Instructions — Evidence—Inaccurate Limitation. Limiting the jury to the testimony “offered”'or “produced -and submitted” does not necéssarily constitute reversible -error.
    Headnote 1: 40- Cyc..pp. 2699, 2701. Headnote 2: 40 Oye. pp. 2558, 2564, 2-565, 2572. ' Headnote 3: 16 C. J. p. 620. Headnote 4: 17 O. J. pp. 62, 73, 79.' Headnote 5Í 17 C. J.' -p. 345.
    Headnote 2: 28 R. O. L. 620. Headnote 4: 2 R. O. L. 444.
    
      Appeal from Polk District Court. — Hubert Utterback, Judge.
    
      November 16, 1926.
    ' Rehearing Denied February 19, 1927.'
    Defendant was informed against by the county attorney for maintaining a place where intoxicating liquors were kept for sale, was convicted by a jury at the trial, and sentenced to 10 months in the Polk County jail and a fine of $500 and costs, from which he .appeals.
    ^&emdash;Affirmed.
    
      Walter F. Maley, for appellant.
    
      Ben Gibson, Attorney-general, and Neill Garrett,. Assistant Attomeyrgeneral, .for appellee.. . .
   Albert, J.

On the trial of the ease, defendant contended that this matter had been submitted' twice to the grand jury of Polk County,' and no bill returned: In the cross-examination of the ' State's principal witness, defendant attempted to show that the witness had made differeht statements before the grand jury from what he was then making on the witness stand. The record; however, shows that the witness on the stand was testifying as to the names of two parties who were present at defendant’s house at the time they made the'search. It is the claim of defendant that the same witness had testified before the grand jury, naming another and' different person from the one he was then naming. This was purely an incidental matter, wholly foreign and immaterial' to the issues involved, and it is well settled that, in an attempt to impeach by showing Contrary statements, it must be on a material matter in the ease. State v. Sheridan, 121 Iowa 164.

It is next urged that the court permitted too wide cross-examination Of the defendant himself, at the hands of the county attorney. We have read the record oh this matter, and are disposed to hold that the court did not abuse its discretion in this respect. When the defendant takes the witness stand, he is subject to the same tests-'as to memory, history," motives, or matters affecting credibility, as any other witness. State v. Chingren, 105 Iowa 169; State v. Brandenberger, 151 Iowa 197; State v. Burris, 194 Iowa 628.

Certain exhibits were introduced in the trial which were said to have beeh samples of liquor taken from a larger quantity seized by the officers at the time the defendant was arrested. The rifle, of course., is that to receive liquor cxhibits in evidence without proper identification is prejudicial error. State v. Kingsbury, 191 Iowa 743; State v. Reid, 200 Iowa 892. But a reading of the record shows that there is no application for this rule in the present case, because the exhibits were properly identified, at least to such an extent that, if there were doubt about it, it was a question for the jury.

It is urged that the ceunty attorney used inflammatory remarks in his address to the jury. The record hardly warrants this contention. The argument te which objection was made, is set out in the record, and there seems to have been no ruling by the court on the proposition; and, under such circumstances, we do not consider the same. State v. Peacock, 201 Iowa 462.

An instruction on reasonable doubt is criticized, as placing on, the defendant the burden of showing such reasonable doubt; but, if the instructions are read as a whole, the criticism is not warranted.

Objection is also made to one of the instructions where a definition, of the word "evidence" is given. It is objected to as top broad,~ but it seems to be a current definition, quite generally approved.

In -one instruction, the court was unfortunate in the use of the, word. "offered," in relation to the evidence in the case. That we have condemned this phrase, see State v. Patrick, 201 Iowa 368. The term as used in these instractious does not bear the same relation to the instructions as it did. in the Patrick case; and, more than, this, a later instruction was given which limited the jury to a consideration o~f only that e~idence which was in fact admitted in the case, and a general instrue~ion was given tha.~ they were to consider all of the• instructions together; and we feel that, under such circumstances, the defendant was not prejudiced.

Instruction. 14 is attacked on similar ground, because it tells the jury to try and determine the ease according to the evidence “produced and submitted” to them in open court. We feel that this instruction is not vulnerable to this assault, because the use of the term “'submitted,” after the word “produced,” limits the jury to the consideration of the testimony which had been admitted by the court. .

It is further urged that the sentence of the court here amounts to cruel and unusual punishment. We are referred to State v. Butler, 186 Iowa 1247; State v. Ringdahl, 191 Iowa 748; State v. Dill, 197 Iowa 208. Under Section 1930,. Code of 1924, as amended by Chapter 46, Acts of the Forty-first General Assembly, the defendant could have been fined $1,000 and been imprisoned in the county jail for one year. We do not feel that the judgment of the court was erroneous, under these circumstances.

Some other matters of minor importance are urged in argument, but we have reviewed the case with care, and' find no error. — Affirmed.

De Graff, C. J., and Evans and Morning, JJ„ concur. ■  