
    Evans v. The State.
    Bleckley, O. J. — 1. One of the State’s witnesses having testified that he was induced by the father of the accused to testify falsely before the coroner’s jury, and the father having contradicted him as to the facts and circumstances by which the alleged influence was exerted, a conversation between the two witnesses after the false swearing was done is not admissible merely to corroborate the State’s witness, but is admissible to impeach the father, if, on being interrogated as to the same while under examination, his attention being called to time, place and person, he denies a material part of the conversation, so as to bring the matter within £3872 of the code touching the impeachment of witnesses by proof of contradictory statements. That the father, after having had the State’s witness subpoenaed to testify in behalf of the accused, said he would discharge him or withdraw the subpoena, is not admissible in evidence as an independent fact, but might be relevant as part of a conversation involved in the foregoing propositions.
    2. It is not correct practice for the court to charge the jury as to the preliminaries which must appear before contradictory statements by a witness can be proved to affect his credit, these preliminaries being matters exclusively for the court. But an error in this respect would not be cause for a new trial.
    
      3. If a witness in. testifying at different times and in different trials of the same case contradict himself upon immaterial matters alone, it is of no consequence; but if some of the-matters be material and others immaterial, the jury should not be instructed that they are not authorized to consider those which are immaterial, though it would be correct to instruct them that for these alone the witness could not be discredited.
    4. On the trial of a criminal case, it is error for the court to instruct the jury to give the evidence for the State just such weight and credit as they give the testimony for the defense, and to give it all such weight and credit as they think it entitled to. The latter proposition would be correct if it stood alone; but the whole is vitiated by the direction to give as much weight and credit to the State’s evidence as to that in behalf of the accused. The jury, and not the judge, must determine the relative weight and credibility of the evidence.
    5. Other than as indicated in the preceding notes, no error prejudicial to the accused appears in any of the grounds of the motion for a new trial, though there were some slight errors made in his favor.
    October 15,1894.
    Indictment for murder. Before Judge Smith. Dodge superior court. March, term, 1894.
    J. W. Walters, D. M. Boberts and E. A. Smith, for plaintiff in error. Tom Eason, solicitor-general, by Harrison & Peeples, contra.
    
   Judgment reversed.  