State v. Huff ( 1904 )

CoNNOR, J.,

after stating the case. We think that the testimony was competent and should have been admitted. The theory of the defense *vas that the prosecutrix consented to all that was done by the defendant; that from this point of view, and for the purpose of contradicting the prosecutrix and corroborating the defendant’s testimony, the evidence of Arnold and his wife was relevant and very material. If believed by the jury it fully sustained the defendant’s view of the transaction. For the purpose of corroborating each other, it was clearly competent for them to testify as to what they said to each other at the time, and what they did. They were sixty-five feet from the prosecutrix and the defendant. The relations between the families were friendly. The fact that the witness called twice to Mrs. Jones in a loud voice sixty-five feet away was clearly competent as tending to show that she was aware that Arnold was sufficiently near to render her assistance if the defendant was committing an assault upon her.

It is well settled that a witness who is either impeached or whose testimony is called in question by the mode of cross-examination or by contradictory testimony may, for the purpose of sustaining his credibility, testify to statements made by him in respect to' the matter about which he testifies at or immediately after the alleged transaction. It was material in this case on the part of the defense to show that Mrs. Jones knew of the presence of Arnold and his wife at their home sufficiently near by to enable her to call for help if assaulted. When they testified that they were sitting in the door, where they could see the entire transaction, and that for the purpose of calling Mrs. Jones’ attention to their presence Arnold called her twice, it is competent to show the state of his mind as explaining his conduct. We think that what he said to his wife at the moment, and what she said to him in respect to the very matter in issue, was competent for the purpose for which it was offered. It would certainly have put the witness in a very unenviable position to have shown that he was within sixty-five feet of his neighbor’s wife, who was being assaulted, and saw the transaction and made no effort to rescue her. The only explanation of snch conduct consistent with that of an honorable man, whose testimony was entitled to credit before the jury, was that he thought the defendant’s conduct was not objectionable to her. It was competent to show, as explaining his conduct, what his wife said to him at the moment.

There was much other testimony tending to impeach the prosecutrix. We do not deem it necessary to pass upon the many other exceptions, as they may not arise upon another trial. The rejection of the evidence offered by the defendant entitles him to a

New Trial.