
    No. 12,292.
    State of Louisiana vs. Sypher Conerly.
    In order to show that a witness had made statements out oí court different from those made by him on the stand, he must be previously cross-examined as to such alleged statements. Such statements must be shown by a Bill of Exceptions to be material to the question at issue — the one made out of court must be shown to have been inconsistent with some fact stated by the witness in his testimony. Eapalje on Witnesses, Secs. 208, 205; State vs. Johnson, 35 An. 371.
    “Noprovocation bywords only, however opprobrious, will mitigate an intentional killing so as to reduce the killing from murder to manslaughter.”
    APPEAL from the Sixteenth Judicial District Court for the Parish of Washington. Reid, J.
    
    
      M. J. Cunningham, Attorney General, and Dunean S. Kemp, District Attorney, for Plaintiff, Appellee.
    
      Clay Elliott, for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down December 14, 1896.
    
      Defendant was found guilty of murder and sentenced to death. From that verdict and sentence he appeals. The questions presented for review are embodied in three bills of exception.
    The first bill recites “ that upon the trial of the ease the defendant, discovering or believing that a witness for the State who had been dismissed from the stand had made statements contradictory to what he had testified to upon the stand concerning material facts, called the witness back to the stand solely for the purpose of asking if he had ever stated the facts differently, and the witness denied so doing. The defendant then offered to or tendered a witness for the defence for purpose of showing that the State witness had made a statement shortly after the killing different from that made upon the stand. To which offering counsel for the State objected on the ground that no proper foundation had been laid, and that by recalling the witness the defendant had made him his own and could not contradict him, which last objection the court sustained and excluded the testimony. To which ruling defendant excepted and tendered his bill of exceptions.”
    The court’s statement upon the bill is as follows:
    The statement reduced by the clerk at the time is annexed. The court sustained both exceptions made by the District Attorney. Counsel for defendant called the witness to the stand without any announcement of a discovery and with no declaration of his purpose, just as he did any other witness summoned by him.
    The question to the witness was too general. It did not give time, place nor detail of different statement; the question being: “ Have you since the homicide which occurred April 19, 1896, stated the facts differently from your statement now given on October 27,1896?”
    The statement of facts referred to by the court as having been made by the clerk is as follows:
    “ On the trial of this case the State called Warren Barnes. After offering his testimony in chief it tendered him to defendant for cross-examination. He was cross-examined and returned to the State, and dismissed by the State. Afterward, the State having closed its testimony in chief, the defendant called the witness Abe Mayer, and questioned him as-to whether or not he had any conversation with Warren Barnes subsequently to the homicide, and asked him to state such conversation. Upon objection by the State the testimony was excluded. The defendant having concluded' the examination of the witness Mayer, and, after cross-examination, he having been dismissed from the stand, the defendant called Warren . Barnes to the witness stand, and asked him if he had not made certain statements in relation to the homicide, and warned him of an intention to contradict him if he persisted in a denial, and the . defendant then tendered him to the State and afterward dismissed him, and thereupon recalled Abe Mayer, and tendered his testimony to contradict the statement of Warren Barnes.”
    The second bill recites that upon the trial of this case the court charged the jury in the language of Sackett’s Instructions to Juries, Sec. 10, p. 681, as follows:
    “No provocation by words only, however opprobrious, will mitigate an intentional killing so as to reduce the killing from murder to-manslaughter.”
    That defendant excepted to this charge, and tendered a bill of: exceptions.
    The court appended to this bill the statement that the homicide was committed with a dangerous weapon, no blows having been struck.
    By the third bill it appears that defendant requested the court to charge the jury that “ if it should appear that the deceased and the accused were apparently on friendly terms, and that they each with the other suddenly became involved in a colloquy in which each made use not only of insulting language toward the other, but coupled with threats, the killing of the deceased under such circumstances may be wanting in malice and the killing no murder, but manslaughter; that the judge refused to so charge, and defendant excepted.”
    The court stated in the bill that the charge requested was-, refused as not correctly stating the law, without serious qualifications and modifications that the homicide was committed with a. dangerous weapon — a 38-calibre pistol. The court was of the. opinion that the law was correctly stated in the charge excepted ta in bill No. 2 and the further complete charge on manslaughter.
   The opinion of the court was delivered by

Nicholls, O. J.

The first question to be considered is whether the defendant, having tendered and offered a witness “ for the purpose of showing that a State witness named Warren Barnes had shortly after the killing made a statement different from that made upon the stand,” the court ruled correctly in refusing to allow said witness to testify on that subject. The witness Barnes had been examined by the State, cross-examined by the defendant and dismissed. After the State had closed its case in chief, defendant called Barnes to the stand, without any announcement of a discovery, and with no declaration of his purpose, just as he did any other witness summoned by him, and propounded to him the question: “Have you, since the homicide, which occurred April 19, 1896, stated the facts differently from your statement now given on October 19, 1896?” The reasons assigned by the judge were that no proper foundation had been laid for the testimony, and that defendant, by recalling the witness, had made him his own, and could not contradict him. The court said the question asked was too general, as it did not give time nor place, nor detail of different statement.

In the statement made by the clerk annexed to the bill, and which is referred to by the court, that officer declares that defendant: called Warren Barnes to the stand, and asked him if he had not made certain statements (italics ours) in relation to the homicide and warned him of an intention to contradict him if he persisted in a denial, and the defendant then tendered him to the State and afterward dismissed him.”

It will be seen that the statement as made by the clerk differs somewhat from that of the court, the latter giving the precise question asked of Barnes, while the former says defendant asked him if he had not made “certain statements” in relation to the homicide.

Thsugh no mention is made of the fact that the statement of the •clerk was made by authority and order of court, we presume it was in fact so made, as it is referred to by the court in connection with the bill of exception. The clerk instead of opening a special note of evidence or “taking down” as they occurred, as a scribe, “ the facts upon which the bill was reserved,” and taking down the testimony of Barnes on the trial, the specific questions asked and the specific objections urged, dealt with the matter by way of “ narrative.” We do not think that Act No. 113 of 1896 contemplated that “ the facts on which the bill was reserved ” should be brought up in that way. In this instance there is no “ material ” difference between the court’s statement and that of the clerk.

We concur in the opinion of the District Court that the question propounded by the defendant to Barnes, on which he bases his right to have introduced testimony to show that he had made statements different from those made by him on the stand, was entirely too general. “ A frequent mode of impeaching the credit of a witness ” says Rapalje on Witnesses (Secs. 203, 205) is to sh.,w that he has made statements out of court on the same subject inconsistent with or contrary to what he swears at the trial. In order to show this he must be previously cross-examined as to such alleged statements so as to apprise him of the time, place and persons involved in the supposed contradiction (see as to this State vs. Johnson, 35 An. 871), and such statements must also be material to the question at issue. The two statements must conflict in some way. The one made out of court must be inconsistent with some facts stated by the witness in his testimony or with its general drift, but if the two accounts are substantially inconsistent that is all that is required.” (Citing De Sailly vs. Morgan, 2 Esp. 691; Christian vs. Coombe, Id. 489; 2 Philips on Evidence, 959). It has been held that “ proof of a different but not inconsistent statement is inadmissible ” (Martin vs. Farnham, 25 N. H. 195; Hall vs. Simmons, 24 Texas, 227).

The same author, writing on the same subject (Sec. 209) says: “ The books teem with applications of the proviso to the rule we have just been considering, that the statements as to which a witness can be contradicted must be material and relevant to the issue on trial; if the witness is cross-examined as to former statements which are impertinent or immaterial to the issue, his answers are conclusive, and can not be contradicted for the purpose of impeaching him.”

In the case at bar we have been informed neither as to what Barnes testified to at the trial, nor what the statements were which defendant claims were different from those made by him on the trial. His testimony may have been purely on immaterial, irrelevant or collateral matters of no moment, and it would be a very unsafe practice to reverse a judgment or verdict upon a mere presumption or possibility that the matters testified to, and those which were sought to be introduced with a view of discrediting the witness, were of such a character as to have resulted in an injury to the accused. Barnes’ testimony could have been taken down under the act of 1896, or it could at least have been recited in the bill of exceptions, so as to bring us to a knowledge of the importance or materiality of the error of the District Judge, if error he had made, in fact committed.

We see no error in the instruction given by the court to the jury that no provocation by words only, however opprobrious, will mitigate an intentional killing so as to reduce the killing from murder to manslaughter.

The judge informs us that the homicide was committed with a dangerous weapon, and that no blows were struck.

The reasons assigned by the District Court for refusing the special charge asked, which refusal is the subject of the third bill of exceptions, justified his ruling.

Por the reasons assigned herein the judgment appealed from is affirmed.  