
    [No. 16808.
    Department One.
    April 19, 1922.]
    The State of Washington, Respondent, v. Charles Dale, Appellant.
    
    Witnesses (104, 105) — Credibility—Former Conviction — Arrest. Cross-examination of the accused and rebuttal evidence as to a previous arrest of the accused for a distinct offense, not confined to the question of a previous conviction of a crime, is inadmissible under Rem. Code, §§ 1212, 2148, 2290, relating to evidence of a previous conviction and the cross-examination of the accused.
    Same (126-1) — Impeachment—Contradiction—Coi/lateral Matters. Where the state, on cross-examination, explores the subject of a previous arrest of the accused for a distinct offense, it is bound by the answers as upon a purely collateral matter, and it is reversible error to permit the state to introduce rebuttal evidence thereon.
    Appeal from a judgment of the superior court for Spokane county, Webster, J., entered May 27, 1920, upon a trial and conviction of being a jointist.
    Reversed.
    
      W. C. Donovan, for appellant.
    
      William C. Meyer and M. R. Morton, for respondent.
    
      
       Reported in 206 Pac. 369.
    
   Tolman, J.

— Appellant was tried and convicted upon a charge of being a jointist, and from the judgment and sentence, entered upon the verdict of guilty, be has appealed. Of the many assignments of error, we find it necessary to consider and discuss but one. Appellant offered himself as a witness in bis own behalf, and on cross-examination by the state, over the- strenuous objection of counsel, be was asked and required to answer the following:

“Q. Fordyce bad you arrested down in Adams county when you plead guilty to violating the- liquor law too, didn’t be? Mr. Donovan: Object to that as not proper cross-examination. The court: You mean he was arrested — I will sustain the objection. Q. Fordyce arrested you one time when you had about thirty bottles of whiskey in your possession? Mr. Donovan: Object to that as incompetent, irrelevant and immaterial and not proper cross-examination. The court: Objection overruled. Mr. Donovan: Exception. A. Fordyce arrested me, but I didn’t have any whiskey. Q. Didn’t you have thirty bottles of whiskey in your possession? A. I didn’t have thirty drops of whiskey. Q. You didn’t have it? A. No, sir.”

And on rebuttal the state was permitted to recall the witness, Fordyce, when the following occurred:

“Q. Did you ever arrest Charley Dale prior to the 28th of October? Mr. Donovan: Object to that as incompetent, irrelevant and immaterial, not tending to explain any issue in this case, not proper rebuttal. Mr. Grant: It was brought out on the examination of Mr. Dale. The court: He may answer the question. Mr. Donovan: Exception. A. I did. Q. And where?-A. I arrested him once up in the alley right off Washington street between Second and Third avenue while he was delivering thirty-two quarts of whiskey.”

The question presented by this state of the record seems to be controlled by our statute. Rem. Code, §1212 (P. C. §7723), provides:

“No person offered as a witness shall be excluded from giving evidence by reason of conviction of crime, but such conviction may be shown to affect his credibility : Provided, that any person who shall have been convicted of the crime of perjury shall not be a competent witness in any case, unless such conviction shall have been reversed, or unless he shall have received a pardon. ’ ’

Section 2148, Rem. Code (P. C. § 9214), among other things, provides :

“. . . any person accused of any crime in this state, by indictment, information, or otherwise, may, in the examination or trial of the cause, offer himself, or herself, as a witness in his or her own behalf, and shall be allowed to testify as other witnesses in such case, and when accused shall so testify, he or she shall be subject to all the rules of law relating to cross-examination of other witnesses: . . .”

And § 2290, Bern. Code (P. C. § 8725), reads:

“Every person convicted of a crime shall be a competent witness in any civil or criminal proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence* or by his cross-examination, upon which he shall answer any proper question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer thereto.”

Neither the cross-examination nor the rebuttal testimony is confined to the question of previous conviction of a crime, consequently the provision in the section of the statute last quoted, to the effect that the state shall not be concluded by the answer, is not applicable. Since the state was not in any manner attempting to prove a previous conviction, the matter of a previous arrest and the previous possession of whiskey was not made admissible by the statutes, referred to, and if admissible at all, which in the light of what was said in State v. Smith, 103 Wash. 267, 174 Pac. 9, may well be doubted, was purely a collateral matter upon which the witness could not be impeached under elemental and familiar rules. The state was, in any event, therefore concluded by his answers upon cross-examination, and it was reversible error to permit the introduction of the rebuttal testimony. A careful study of the record fails to convince us that there was any other error of a sufficiently prejudicial nature to warrant reversal; but for the error pointed out, the case must be, and it is hereby, reversed and remanded for a new trial.

Parker, C. J., Fullerton, Mitchell, and Bridges, JJ., concur.  