Smith, J.
On June 26, 1953, shortly after 9 o’clock p. m., defendant was stopped and arrested while driving his automobile in Des Moines, Iowa. Thereafter, being charged under section 321.281 with operating a motor vehicle while intoxicated, he pleaded not guilty. He was convicted and appeals from the resulting judgment.
The appeal presents but one claimed error — -improper cross-examination of defendant, eliciting the fact that he had once been in Eldora Training School for Boys. We need not set out any details of the evidence bearing on his alleged criminal conduct.
The cross-examiner first elicited that defendant was born in Dallas Center in 1922 and left there when he went into- service in 1942. After some examination bearing on his contention that he was not intoxicated when arrested but suffering from a physical attack by some unknown assailant the prosecutor commenced to question him as to where he had lived and whether he had been “away from home.” Two pages of the record are devoted to this part of the cross-examination. The witness said he had been “in the Dakotas for awhile with a cousin of mine”, had visited his “sister in Arkansas, Pine Bluff”, etc.
At one point the cross-examiner replied to an objection as to immateriality: “For the purpose of examination of the credibility of the witness.”
Finally the witness w.as asked point-blank: “You don’t remember any place in particular you were in 1940 other than visiting at your sister’s and maybe in the Dakotas?” Objection was urged which the court overruled, saying “Ordinarily the credibility can be gone into.” The witness then answered: “I was in Eldora Training School for Boys.”
Prompt motion was made to strike the answer and the court was asked to admonish the jury to disregard it. The court said: “I assume that the County Attorney knew exactly what the answer was going to be” and at once recessed the case. After [992]*992recess the court, not in the presence of the jury, announced: “I will entertain a motion for mistrial.” After argument, however, the defense motion for mistrial was overruled.
I. The question presented is a narrow but extremely troublesome one. Code section 622.17, Iowa Code, 1954, provides a witness may be interrogated as to his previous conviction of a felony. That statute has no bearing here.
Section 781.13, Iowa Code, 1954, is more in point. It permits cross-examination of a defendant (“when he testifies in his own behalf”) but warns that “the State shall be strictly confined therein to the matters testified to in the examination in chief.”
The sole purpose of the cross-examination expressed by the prosecuting attorney here was to test the credibility of the defendant as a witness. It clearly was not to' contradict or disprove anything he had testified to on direct examination. The record does not show that he testified on his examination in chief to anything as to his past history except: “I am 31 years old. I was in service from 1942 to 1946 and served in the South Pacific. I am employed at the Iowa Pack and' have worked there seven years.”
The rest of his testimony on direct examination concerned the events preceding and leading up to his arrest: “I worked until noon and then went home. I had a fishing trip planned for the next day and I was going home and get my fishing equipment ready to go. I was going with Howard Mattix .and Gene Fees who both work at the Iowa Pack where I am employed.” He then tells of the visit of himself and wife at the Mattix home that evening: “I had nothing to drink with the Mattixes and left there sometime after 7:30 to go see Gene Fees. * * * I met Mr. Fees .and I drank three bottles of beer and left. * * * Previous to that I had had nothing to drink.
“When I left him I walked out the door and the main thing I know is that somebody hit me up side of the head and I was on the sidewalk and I don’t-. After that I don’t know really what did happen. I don’t know what I was hit with. I suffered some cuts and scratches on my face and my left hand and I had one pretty deep cut on my chin and when I arrived down at the police station it was still bleeding. Whoever hit me just dis[993]*993appeared .after that. He might have mistaken me for somebody else or something. That is the only thing I can figure out. I have never been in any trouble. I don’t make a habit of going over there in that portion of town.
“The next thing that I really remember I was stopped on East 9th by the police officers.”
The rest of his testimony in chief gives his explanation of the presence of beer bottles in his ear and something of his physical and dental condition since serving in the Pacific.
The only possible legitimate purpose for eliciting on cross-examination the fact of his residence at Eldora was to suggest to the jury a reason (in addition to his obvious interest in the outcome of the trial) for disbelieving defendant’s testimony in chief — in other words, to question his credibility m a, witness. But unfortunately, back of that was the possibility of discrediting him as. a defendant and making his conviction more probable. Such a possibility when a defendant becomes a witness was doubtless the reason for Code section 781.13, supra. See State v. Yarham, 206 Iowa 833, 837, 838, 221 N.W. 493.
Defendant was born in 1922. His “residence” in the Training School was in 1940, thirteen years before trial of the instant case. He was then approximately eighteen years old. The only explanation of his being there is given in his redirect examination : “My father and mother separated when I was five. * * * My father was granted custody of me and I was only supposed to stay with my mother on week ends. As the years went on * * * I stayed with my mother more than I was supposed to and my dad had me' paroled up in Miller, South Dakota, to my cousin up there. I was supposed to stay with my father but I was not doing that. My father took me up to Dakota and I got home again. * * * the sheriff picked me up in Adel * * * and they sent me to Eldora. It was the result of disobeying my father — just not living with him when I was supposed to.”
No instruction was given or asked concerning this testimony elicited on cross-examination of defendant. The record as it stands does not indicate any serious state of dependency or neglect under section 232.2, Iowa Code, 1954, or any delinquency under Code section 232.3, as the reason or purpose of his commitment. Undoubtedly a boy may be sent to the Training School [994]*994under circumstances which, if understood, reflect no discredit but only misfortune. Nevertheless we cannot close our eyes to the general belief, which attaches some stigma to the commitment.
II. The State cites State v. Wasson, 126 Iowa 320, 323, 101 N.W. 1125, 1126, in which case the defendant, charged with robbery, on cross-examination was asked questions as to his former residence and occupation “which elicited information from which it might be inferred that he had been an inmate of the reform school at Eldora.” The opinion held that “while it was not competent to show that fact by direct testimony, the State had the right to cross-examine the witness on both subjects [former residence and occupation], although it might tend to disgrace and discredit him”, citing “State v. Pugsley, 75 Iowa 742.”
Nothing appears as to the length of time that had elapsed since the “inferred” commitment or as to the reason for it.
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Smith, J.
On June 26, 1953, shortly after 9 o’clock p. m., defendant was stopped and arrested while driving his automobile in Des Moines, Iowa. Thereafter, being charged under section 321.281 with operating a motor vehicle while intoxicated, he pleaded not guilty. He was convicted and appeals from the resulting judgment.
The appeal presents but one claimed error — -improper cross-examination of defendant, eliciting the fact that he had once been in Eldora Training School for Boys. We need not set out any details of the evidence bearing on his alleged criminal conduct.
The cross-examiner first elicited that defendant was born in Dallas Center in 1922 and left there when he went into- service in 1942. After some examination bearing on his contention that he was not intoxicated when arrested but suffering from a physical attack by some unknown assailant the prosecutor commenced to question him as to where he had lived and whether he had been “away from home.” Two pages of the record are devoted to this part of the cross-examination. The witness said he had been “in the Dakotas for awhile with a cousin of mine”, had visited his “sister in Arkansas, Pine Bluff”, etc.
At one point the cross-examiner replied to an objection as to immateriality: “For the purpose of examination of the credibility of the witness.”
Finally the witness w.as asked point-blank: “You don’t remember any place in particular you were in 1940 other than visiting at your sister’s and maybe in the Dakotas?” Objection was urged which the court overruled, saying “Ordinarily the credibility can be gone into.” The witness then answered: “I was in Eldora Training School for Boys.”
Prompt motion was made to strike the answer and the court was asked to admonish the jury to disregard it. The court said: “I assume that the County Attorney knew exactly what the answer was going to be” and at once recessed the case. After [992]*992recess the court, not in the presence of the jury, announced: “I will entertain a motion for mistrial.” After argument, however, the defense motion for mistrial was overruled.
I. The question presented is a narrow but extremely troublesome one. Code section 622.17, Iowa Code, 1954, provides a witness may be interrogated as to his previous conviction of a felony. That statute has no bearing here.
Section 781.13, Iowa Code, 1954, is more in point. It permits cross-examination of a defendant (“when he testifies in his own behalf”) but warns that “the State shall be strictly confined therein to the matters testified to in the examination in chief.”
The sole purpose of the cross-examination expressed by the prosecuting attorney here was to test the credibility of the defendant as a witness. It clearly was not to' contradict or disprove anything he had testified to on direct examination. The record does not show that he testified on his examination in chief to anything as to his past history except: “I am 31 years old. I was in service from 1942 to 1946 and served in the South Pacific. I am employed at the Iowa Pack and' have worked there seven years.”
The rest of his testimony on direct examination concerned the events preceding and leading up to his arrest: “I worked until noon and then went home. I had a fishing trip planned for the next day and I was going home and get my fishing equipment ready to go. I was going with Howard Mattix .and Gene Fees who both work at the Iowa Pack where I am employed.” He then tells of the visit of himself and wife at the Mattix home that evening: “I had nothing to drink with the Mattixes and left there sometime after 7:30 to go see Gene Fees. * * * I met Mr. Fees .and I drank three bottles of beer and left. * * * Previous to that I had had nothing to drink.
“When I left him I walked out the door and the main thing I know is that somebody hit me up side of the head and I was on the sidewalk and I don’t-. After that I don’t know really what did happen. I don’t know what I was hit with. I suffered some cuts and scratches on my face and my left hand and I had one pretty deep cut on my chin and when I arrived down at the police station it was still bleeding. Whoever hit me just dis[993]*993appeared .after that. He might have mistaken me for somebody else or something. That is the only thing I can figure out. I have never been in any trouble. I don’t make a habit of going over there in that portion of town.
“The next thing that I really remember I was stopped on East 9th by the police officers.”
The rest of his testimony in chief gives his explanation of the presence of beer bottles in his ear and something of his physical and dental condition since serving in the Pacific.
The only possible legitimate purpose for eliciting on cross-examination the fact of his residence at Eldora was to suggest to the jury a reason (in addition to his obvious interest in the outcome of the trial) for disbelieving defendant’s testimony in chief — in other words, to question his credibility m a, witness. But unfortunately, back of that was the possibility of discrediting him as. a defendant and making his conviction more probable. Such a possibility when a defendant becomes a witness was doubtless the reason for Code section 781.13, supra. See State v. Yarham, 206 Iowa 833, 837, 838, 221 N.W. 493.
Defendant was born in 1922. His “residence” in the Training School was in 1940, thirteen years before trial of the instant case. He was then approximately eighteen years old. The only explanation of his being there is given in his redirect examination : “My father and mother separated when I was five. * * * My father was granted custody of me and I was only supposed to stay with my mother on week ends. As the years went on * * * I stayed with my mother more than I was supposed to and my dad had me' paroled up in Miller, South Dakota, to my cousin up there. I was supposed to stay with my father but I was not doing that. My father took me up to Dakota and I got home again. * * * the sheriff picked me up in Adel * * * and they sent me to Eldora. It was the result of disobeying my father — just not living with him when I was supposed to.”
No instruction was given or asked concerning this testimony elicited on cross-examination of defendant. The record as it stands does not indicate any serious state of dependency or neglect under section 232.2, Iowa Code, 1954, or any delinquency under Code section 232.3, as the reason or purpose of his commitment. Undoubtedly a boy may be sent to the Training School [994]*994under circumstances which, if understood, reflect no discredit but only misfortune. Nevertheless we cannot close our eyes to the general belief, which attaches some stigma to the commitment.
II. The State cites State v. Wasson, 126 Iowa 320, 323, 101 N.W. 1125, 1126, in which case the defendant, charged with robbery, on cross-examination was asked questions as to his former residence and occupation “which elicited information from which it might be inferred that he had been an inmate of the reform school at Eldora.” The opinion held that “while it was not competent to show that fact by direct testimony, the State had the right to cross-examine the witness on both subjects [former residence and occupation], although it might tend to disgrace and discredit him”, citing “State v. Pugsley, 75 Iowa 742.”
Nothing appears as to the length of time that had elapsed since the “inferred” commitment or as to the reason for it. We are left to “infer” it was sufficiently recent and of such a nature as to make it material and relevant to the question of the defendant’s credibility as a witness.
The Pugsley ease cited shows the cross-examination complained of there referred to an existing jail imprisonment of the witness (not the defendant) awaiting trial on an indictment for larceny. It was properly held there that the fact elicited did bear on the credibility of the witness. No question of remoteness was involved in either case.
The State cites numerous cases announcing unquestioned general principles as to cross-examination of witnesses to test their memory or impeach their credibility. We have no quarrel with the propositions they announce. But they are not helpful to us here.
Nor are the cases cited by defendant from other jurisdictions decisive. Henley v. State, 81 Tex. Cr. Rep. 221, 195 S.W. 197, held it error to show by probation officers that a witness had been convicted as an incorrigible child. No question of cross-examination of the defendant on trial was involved.
In Witt v. State, 123 Neb. 799, 244 N.W. 395, the Nebraska Supreme Court held irrelevant testimony that two of the State’s witnesses had been committed to the State Training School for Girls. Again no question of cross-examination of defendant was involved.
[995]*995Daxanbekler v. The People, 93 Ill. App. 553, 555, the witness was asked directly on cross-examination, “ ‘Were you ever in the reform school in the state of Iowa?’ ” The appellate court upheld the trial court in sustaining objection to the question: “It is only conviction of an infamous crime which can be shown for the purpose of affecting the credibility of a witness.”
We are mindful that the trial court has a considerable discretion in passing on the materiality and propriety of cross-examination designed to test the memory and credibility of witnesses. But in a criminal case where the witness is the defendant on trial, our statute (Code section 781.13) already cited provides (what probably would be the rule anyway) that the, State shall be strictly confined to the matters testified to in the examination in chief.
We think there was abuse of judicial discretion here. The commitment to what is still thought of as the “Reform School” was too remote in time to furnish any reliable criterion by which to test the credibility of the witness and was not proper cross-examination as related to the testimony in chief.
III. Was the error prejudicial? Were the proceedings civil instead of criminal, or the witness not the defendant, we might easily answer “No.” But the duty of the court to protect the right of a defendant charged with crime to a fair and impartial trial should give us pause. Knowing lawyers as we do we indulge the suspicion that had the witness not been the defendant the prosecutor would not have bothered to go into his teen-age history. (Mindful of a prosecutor’s problems however, we say it-without implying censure.) The reaction of the trial court was significant: “You have no right whatsoever to show this man was in Eldora j * * * that is prejudicial error, in my opinion. I don’t think it can be cured even by admonition at this point.”
It is possible there was no prejudice but we prefer not to speculate on it. Had the indictment been for murder such speculation would be unthinkable, but the legal principle here must be the same. The defendant’s rights and our duty are the same, regardless of the nature of the charge.
“Error being made to appear, prejudice will be presumed, is the rule.” State v. Wheeler, 129 Iowa 100, 106, 105 N.W. 374, [996]*996376; State v. Nugent, 134 Iowa 237, 240, 111 N.W. 927, 929. In the latter ease it is said: “In criminal cases only technical errors which do not affect the substantial rights of the defendant are to be disregarded.” In State v. Asbury, 172 Iowa 606, 613, 154 N.W. 915, 918, Ann. Cas. 1918A 856, it was said “error is presumed to be prejudicial”, and the case was reversed because of error in cross-examination of defendant thereby eliciting matter not inherently inadmissible.
It must be conceded however our court has no fixed rule that prejudice will always be presumed, nor should it have. But it is fair to say that in a criminal ease where the error pertains to a matter calculated to arouse prejudice against defendant, we should be cautious in holding it to be nonprejudicial. “Whether the error in a given case shall be regarded as harmless on appeal may often depend on the circumstances of the particular ease rather than on any definite rules of law.” 24 C. J. S., Criminal Law, section. 1887, page 841. And “errors which might otherwise be regarded as harmless and unimportant may not be so considered in-close cases.” Idem, page 843.
It must be said the evidence of guilt here is not strong. The officers by whose testimony defendant was convicted concede that while he was driving without lights, his car was not weaving or being driven improperly except that one says “he was traveling at a faster rate of speed than the speed limit.” The same witness says “I don’t believe he ran a stop light while we were following him.”
The testimony of the witnesses as to defendant’s bloody and disarranged condition when arrested tends to support his testimony that he had been attacked and beaten before entering his car. One says “There was no question in my mind that night but what somebody had apparently roughed up Mr. Collins to some extent.” The other said “he looked like he had just come out of a fight.” They base their opinion that he was intoxicated on the smell of alcohol on his breath and his physical appearance and unsteadiness in his walk, though, as to the latter, one testified “his walk was fair.”
We are not arguing the guilt or innocence of defendant nor the sufficiency of the evidence to go to the jury. We do say [997]*997the evidence of guilt is not so strong as to justify a pronouncement that the error in cross-examination was without prejudice.
For the reasons stated we think the ends of justice will be best served by a reversal and it is so ordered. — Reversed.
Wennerstrum, C. J., and Oliver, Mulroney and Hays, JJ., concur.
Garfield, Bliss, Thompson, and Larson, JJ., dissent.