
    No. 12,076.
    State of Louisiana vs. Joseph Goodbier.
    The rule that statements of the witness out of court contradictory to his testimony cannot be proved unless he is first afforded the opportunity of denial, admission or explanation, is enforced whether the imputed contradictions are offered to impeach the credit of the witness or to show his malice to the accused. 1 Greenleaf on Evidence, Secs. 475,476,477; Sfcarlrie on Evidence, S.P 289, 210; notes at foot.
    If the witness admits the contradictory statements the accused can offer no proof of the contradictions thus admitted, although such proof is proposed to be given to show .the falsity of the explanations of the witness why he made the statements contradictory to his testimony. Wharton’s Criminal Evidence, Sec. 488; Rapalge,Law of Witnesses, Sec. 204.
    Although a defence witness has been cross-examined and dismissed without being questioned as to contradictory statements out of court imputed to him, and although other defence witnesses have been cross-examined and dismissed, yet the State, not having commenced rebutting, may be permitted to recall and examine the defence witness to lay the basis for contradicting him and to prove such contradictory statements; it appearing by the bill that the District Attorney learned of the statements after the cross-examination of the witness, the recall operating no delay and causing no denial of any right of the accused. 8 Bob. 562; 29 An. 716; 88 An. 982; 47 An. 886.
    APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.
    
    
      M. J. Cunningham, Attorney General, R. F. Broussards, District District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Ap-pellee.
    
      James Simon and James E. Mouton for Defendant, Appellant.
    Argued and submitted February 29, 1896.
    Opinion handed down April 6, 1896.
   The opinion of the court was delivered by

Miller, J.

The accused, sentenced for assault with intent to commit rape, appeals.

The first bill of exceptions relied on is to the exclusion of proof of statements out of court by the prosecuting witness, contradictory of her testimony. The objection was that the witness had not been questioned in reference to such statements, and afforded an opportunity of denial, admission or explanation. The argument for the accused concedes the rule exacting this preliminary basis for proof of such contradictory statements, but insists there is an exception when the statements are offered to show the malice or ill will of the witness to the accused, the purpose in this case. If this qualification is admitted the proof should have been permitted. The witness is the daughter of the accused, and had testified to the crimes charged. The contradiction imputed was that she had stated “this is not so,” referring to the rumor of the offence, but that she would avail of it as a pretext to leave her father. On a charge of this nature it is extremely unfortunate the accused should be denied any testimony tending to his exculpation. The excluded statements, with any accompanying denial or explanation from the witness, might still have weighed with the jury in favor of the accused, tried on a charge so serious. The question therefore, raised by this bill, with a natural appreciation of its importance to the accused, has received our careful attention. When it is proposed to assail the testimony of a witness by proof of variant statements claimed to have been made by him out of court, it is but fair that he should have been afforded the opportunity of explanation or denial. With that denial or explanation, the party, whether the State or the accused on whose behalf the witness testifies, is, at least, in some degree fortified against any attack on the testimony, and the effect of the testimony is, in the same degree, maintained. Hence, the rule that the witness against whom alleged contradictions are to be arrayed must be first afforded the chance of denial or explanation is necessary for the protection of the witness, and is also essential to the proper administration of justice. The reason of the rule would seem to apply whether the imputed contradictions are offered to impeach the character, motives or credit of the witness. His testimony, given for any purpose, is entitled to its effect, and if assailed by alleged contradictions, should be accompanied with the denial or explanation the witness may give, and to this end the opportunity must have been afforded him. In our view this reason and scope of the rule is borne out by the authorities. 1 Greenleaf on Evidence, Sec. 462. Wharton’s Criminal Evidence, Secs. 475, 476, 477, 485, 488. Starkie on Evidence, S. P. 239, 240; notes at foot. Much as we regret the possibility that the accused has not had the benefit of exculpatory testimony on so grave a charge, we must hold that there was no error in the ruling of the lower court presented on the first bill of exceptions.

The second bill is to the exclusion of the testimony of a witness for the defence, offered as stated in the brief to contradict the explanaiion of one of the State’s witnesses for contradictory statements, i. e., of his testimony on the stand. The witness whose statements out of court were proposed to be given in evidence, had admitted the contradictions on his attention having been called to the subject. The rule is that if the witness admits on the stand the contradictions imputed to him, the defence is under no necessity to sustain the contradictions, and is not permitted to offer the sustaining proof. Wharton Crim. Evidence, Sec. 483;Rapalge Sec. 404. The right of the party to offer proof of contradictory statements of a witness is restricted, and ceases altogether when the contradictions are admitted. Testimony to show that the explanation is false given by the witness of the admitted statements, it seems to us, is inadmissible as held by the lower court.

The last bill reserved was to the ruling permitting the recall by the State of a defence witness for the purpose of examination to lay a basis of proving his contradictory statements, and the objection extends to the proof of such statements. . This was allowed after the witness had been examined, cross-examined, dismissed, and after other defence witnesses had been examined, cross-examined and its case closed. The reason assigned by the prosecuting attorney for not cross-examining on the point is, that he only learned of the statements after he had dismissed the witness. He informed the court of his information and was permitted to recall the defence witness, examine him on the subject and prove the imputed contradictions. All this was done before the State entered on its rebutting testimony. Undoubtedly, the appropriate time for examination of a witness in reference to his statements out of court variant from his testimony on the stand is on his cross-examination.. Our jurisprudence has relaxed the rules as to the time and order of introducing testimony, whether for the State or defence. In this instance there was no delay, the witnesses being at hand, and there is no complaint of the denial of the right of the accused to sustain the credit of his witness. Under these circumstances we think there was no error in the ruling of the court. State vs. Duncan, 8 Rob. 562; State vs. Colbert, 29 An. 716; State vs. Rose, 33 An. 932; State vs. Nixon, 47 An. 836.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.  