ELLISON, J.
The appellant was convicted of robbery in the first degree with' á pistol in the Circuit Court of Pemiscot 'County on change of venue from New' Madrid Cóunty, and" bis punishment fixed by tbe jury at ten years’ imprisonment in tbe penitentiary. His motion for'new trial contained forty-three assignments of error, which bave be'én reduced to twenty-four in bis brief here. They complain that the evidence was insufficient to support the verdict; of tbe admission of testimony on direct and cross-examination, and in rebuttal; of improper direct and cross-examination; of tbe giving and refusal of instructions; and of the refusal to gránt a new trial because of newly discovered evidence.
The victim of the. robbery was Fred Thompson' who conducted a store and gasoline filling station on á highway running aloñg the
bank or dump of Ditch No. -6 about seven .and,one-half-miles east of Malden in New Madrid County. It is not disputed that the robbery occurred- about nine-thirty or ten o’clock .the night of September 7, 1933.. But the appellant maintains the proof establishing his alibi defense Was'-so strong, and the testimony of the. prosecuting witness, Thompson,- and his wife identifying him.as oiie-of the robbers was so-weak and thoroughly impeached, that the verdict, ought not to stand.
Thompson’s .testimony was that three men in a Ford automobile drove up to the filling station just after he had closed for the night, and said they wanted to buy. some gasoline. He demurred .about selling it but consented when they told him they would buy a tank full. He operated the gasoline pump with one hand and held a flashlight in the other while one of the ■ men,' whom he identified at the trial as Schaffer, held the hose nozzle in the tank — which overflowed after taking only two gallons. Thompson put the cap on the tank, and as he did so the appellant, who had been standing with his foot ,on the running board, and Schaffer threw him to the ground and took a pistol from his pocket. While they .struggled his wife came out and beat Schaffer off of him with a shotgun, When he straightened up the appellant shot at him three times. He ran into the house for another shotgun and someone shot at. him three times again, one bullet making a superficial wound :over his left-ear. By the time he had rer turned to the. house door with his gun . the robbers had fled and their car was about forty yards down the road.
He identified a.pistol produced at the trial as the one taken from him by the robbers. It belonged to a man named Gratis Ellis who had pledged it to. him about-a. month before the robbery for groceries. Mr. Ellis also identified the. pistol. In addition to the pistol the robbers got the two gallons of gasoline and his flashlight. Mrs. Thompson was struck and wounded by , the robbers. That night the moon was shining but there was no other light at the filling station except his flashlight and an ordinary coal oil lamp back in the middle of the store. The front of the store was ten feet from the gasoline pump.
On cross-examination Thompson said that prior to the robbery he knew Schaffer -well enough to recognize him when he saw him, though he.did not.know his name until sometiipe afterward; .and that he had similarly known the appellant four or .five, years. But it was, proven in behalf of appellant that Thompson talked, to some of his neighbors less than an hour after the robbery occurred, and to others within a period of three days, to. all of whom he stated he did not.- know who the robbers were. . . . -
Dessie- Crawford, Bernie Ellis, Bhelby L.oekaby and J. A. -Whit-ledge, marshal at the nearby town of Gideon and deputy sheriff, testified that Thompson, said- he did not know who had robbed him, though, he told Whitledge he thought he could identify some of the.
robbers. To Dessie Crawford he also said one of the robbers was a big man, whom he believed he could identify, and he stated to Lockaby he would like to see the big fellow again. The big man was Schaffer. Also, two other neighbors, Alex Shrowder and Bill McGee, swore that Thompson told them, respectively, he thought a man named Floyd Acres, who once had worked on his farm, was one of the' robbers. On the stand Thompson denied having’ made these statements; R. G. Wells, a-neighboring farmer, testified that on the morning next after the robbery Thompson told, him he did not know who. the robbers were; that there was one face he would know. On this same morning Thompson reported .to G-ratis Ellis, that the robbers.had taken-his (Ellis 0 pistol and Mr. Ellis testified that when he asked Thompson “if he had any idea about who it was,” the latter answered that-he did not.. “After that,” Ellis said on redirect examination, Thompson told’ him he thought he could identify the robbers if he saw them again, but the witness was not asked what time he referred to by the expression “after that.” ... ■ ■
About a week after the robbery Thompson called J. A.. Whitledge, the marshal and deputy sheriff above mentioned, and had him go with him to a house on his (Thompson’s) farm into which a strange old man had moved the day of the robbery. The old man was sick and wouldn’t have a doctor or let anyone look, at him, and Thompson said he “sorta thought he was the one Mrs-. Thompson shot,”: in the robbery, or that it could be the man. A 'short time before that, apparently, Thompson had got the witness R. C. Wells to go see the old man, taking a. bottle of liniment in the hope that the aged stranger would permit Wells to rub him with-it, ; - . ’
Thompson admitted on the stand that he did not disclose’ to his-neighbors and the other witnesses mentioned the fact .that he recognized the appellant as one of the robbers at th'e time of the robbery. His explanation for this was that he “had more sense” than to tell “outsiders.”' But the further fact was developed .that he failed to acquaint the sheriff, Mr. Harris, with that; information when the latter. came to his filling-station.-the next day to -investigate, and contented himself with giving a description of the .three robbers. Thompson. accounted for his failure to advise the sheriff of this important fact by saying he thought the appellant was in the penitentiary at the time of the robbery — under a conviction for another robbery in the Circuit Court of Dunklin County the latter, part, of the previous July. , From the, testimony .of the sheriff .and -Thompson it appears that Thompson did not. say'anything to the sheriff • implicating appellant until about the middle of January, 1934, about three months after the robbery. The sheriff then called up Kennett, the county seat of Dunklin County, :and learned that the appellant was out on bond at the time of the robbery here involved, following, his conviction
in the Dunklin County Circuit Court of'the other robbery. Thereupon the sheriff or one' of his- ‘deputies filed a complaint under which the appellant Was arrested and confined in jail, and1 Thompson did not swear to ¿'complaint ag'ainst him until about a month later on February 13.
Mrs: Thompson was in bed when the three robbers drove up to the filling station. She heard the gasoline hose nozzle drop to the ground and the struggle that followed. Immediately she got a shotgun, went around the house, and fired a shot at one of the robbers whom she designated at the trial as Flowers. One of the robbers, taller than the other two, was on top of her husband and the appellant was kneeling down or squatted by him. She recognized the appellant when she first Saw him.' She had known him for twenty years. The big fellow, Schaffer, wrenched the shotgun from her hand and she was thrown to the ground. Flowers hit her in the hand With a' pistol while she was down. She did not know Flowers at the time but knew his face the next time she saw him.
She was asked if she did not tell Dessie Crawford later that night when some of the neighbors gathered at the-filling station after th:e robbery that she did'not-know any of the robbers.' She said she could not remember making that statement but that-she did say she could identify “the big fellow,” and she declared she told her-husband that She 'had recognized the appellant. Being asked why she had withheld that information from her neighbors she said ‘ ‘ any one with any sense'wouldn’t tell anyone-, you wouldn’t tell anyone if the party Was running loose, and had cOme and tried to kill you like they did us.” Crawford testified that'she did say she did not know who the robbers were. ■ ■
Mrs. Thompson was further' asked if On-the "same occasion she had not said to Ber'nie Ellis that she did nót kúów who the robbers Wefe ánd could not -identify them, and she' said she did not. Mr. Ellis testified that she did make that statement probably twenty minutes after the robbery. Mrs.' John Choat -was at the Thompson store the Sunday afternoon or evening following the robbery. She testified that Mrs. Thompson said she couid not identify any of the robbers except the large man, but Mrs. Thompson on cross-examination denied it. She further explained she did. not tell the sheriff she had recognized the appellant as one of the robbers because every ohe told her the appellant was in the penitentiary.
The appellant testified that on the day of the robbery, and for some considerable time theretofore and thereafter, he was working in Nóah Boyd’s logging camp eight miles southeast of New Madrid; that he slept that night with Jim' Castleberry, a timber cutter, in a large tent where' all the workers slept, and that he had nothing to do' with the robbery. This alibi Whs supported by the testimony of
Castleberry,- and of A. O.. 'Pixey, a-timekeeper at the camp, Roy Carter, a teamster, Jack Householder, a timber cutter, and Noah Boyd, who ran the camp. Three of three witnesses testified the appellant slept at the camp that night, retiring about eight-thirty o ’clock, and Castle-berry corroborated the appellant’s- statement that they slept together. Boyd and Carter said- only that -the appellant wlorked at the: camp during the day and- ate supper there1 about seven- o’clock.- It was further shown that rain fell that night, and that about a third of the sixteen miles of automobile road between the camp and the- Thompson filling station- was almost impassable.- (It will be remembered the robbery occurred about nine-thirty or ten o’clock.) The time book showed appellant had-worked-that week and-Boyd produeéd-a canceled- check to appellant dated September 16 which he said covered his wages for the two weeks-preceding.
Cross-examination of these witnesses developed some contradictions and improbabilities in the details of their stories, ánd showed their-memories were blank as to -the appellant’s whereabouts on other-dates, and indicated the- time book was crudely kept. It was also proven that the witness Noah Boyd was the appellant’s brother-in-law. Other facts will be stated as necessary in the course of the opinion.
I. Appellant’s first assignment of error-is that the verdict was the result of passion and prejudice, and not based upon substantial evidence. -His specific contention- is that ‘thé State’s evidence was very weak and was completely overcome by evidence ■ favorable' to his defense ; and he maintains that in these circumstances this court should weigh the evidence and reverse the judgment. In support of his legal position appellant refers us to State v. Liston, 315 Mo. 1305, 1313, 292 S. W. 45, 48, and cases cited therein.- The 'Liston case quotes (substantially) the following from State v. Prendible, 165 Mo. 329, 353, 65 S. W. 559, 566: “Under statute (now Sec. 3734, R. S. 1929; Mo. Stat. Ann., sec. 3734, p. 3272), it is one of the grounds for a new trial that the ‘verdict té contrary to the evidence-. . . .’ And this statutory ground -is clearly comprehensivé enough to embrace within its scope . . . testimony impeached in all its more-prominent features and bearings, for -testimony completely impeached is "no- testimony at all, and no conviction based on such testimony "should be permitted to stand-when called in-question in an appellate- court.”' The Prendible case cites State v. Huff, 161 Mo. 459, 487, 61 S. W. 908, 1104, which says: ‘ Testimony completely impeached is no testimony at all, and rests on the same -basis, in -legal contemplation, as though no testimony had been introduced.- And when such a case occurs, relief will be" granted by this court. ■ :
In the Liston and Prendible cases the State’s evidence was considered “ completely: impeached, ” not because it was self-destruetive
or opposed to physical facts, but because, it was thought to-have been1 overwhelmingly contradicted by witnesses. The same was true in State v. Francis, 199 Mo. 671, 688, 98 S. W. 11, 14, and State v. Primm, 98 Mo. 368, 372, 11 S. W. 732, 733, and to a considerable degree also in the Huff case .. There can be no: question about-the fact that in* these cases-this court passed :on the credibility of the testimony.
■Two of the other cases cited in State v. Liston, supra, are State v. Packwood, 26 Mo. 340, 363, and State, v. Mansfield, 41 Mo. 470, 473. The Packwood case says:-“It is no't-.the province-.of this court to weigh evidence, nor has it been -the .practice to interfere with that discretion which has-, been entrusted 'to circuit judges -over the verdicts of -juries. I: am not aware,- however; -that the court-has in any. case entirely repudiated all -power ‘over the subject, .although I believe the tendency of recent decisions has ■ been in that direction. ’ ’ And it was declared in the Mansfield case: “Whilst, the law is firmly established in this State that it is not the province- of this court in civil cases to weigh the evidence or disturb the discretion of the lower courts- in maintaining or- setting. aside verdicts, it is equally well settled that' in criminal cases we havé never, abandoned our right to interfere where the record shows that manifest injustice has been committed, or the verdict is not supported by the evidence.”'
Another statement of the rule running back through perhaps a dozen Cases to State v. Cook, 58 Mo. 546, 548, is found in State v. Caviness, 326 Mo. 992, 998, 33 S. W. (2d) 940, 943, and State v. Concelia, 250 Mo. 411, 424, 157 S. W. 778, 781, as follows: “Where there exists- upon the record, what has .been rather loosely called any ‘substantial evidence’■ of, the existence of a state.-of facts legally required’to be shown, it is our duty-to. relegate-the determination of controverted, question to the1 triers .of fact. -‘The; rule - . ,- is that before this court will, .relieve on the ground .that the verdict is not supported by- the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is, that the verdict is-the result of passion, prejudice or partiality.’ ” It will be' noticed this quotation says there must be either- a total failure of evidence, 'or it must be so
weak
as to raise a necessary inference that the verdict is the result of passion, .prejudice' or.partiality. This concedes-that this court will weigh the evidence to see- whether it is Weak, and from weakness will sometimes infer passion, prejudice or partiality.
Opposed-to the. cases, cited above are scores of decisions (9 West’s Mo. Dig., sec. 1159) holding our-appellate, courts will not weigh the. evidence in a criminal case if the verdict and -judgment below were supported by substantial evidence. . The latest of. these from this court are: State v. Harris, 337 Mo. 1052, 87 S. W. (2d.) 1026, 1028 (3); State v. Short, 337 Mo. 1061, 87 S. W. (2d) 1031, 1033 (3) ; State v.
Mitchell (Mo. Div. 2), 86 S. W. (2d) 185, 186 (3); State v. Evans, 334 Mo. 914, 919, 68 S. W. (2d) 705, 708; State v. Simmons, 332 Mo. 247, 252, 58 S. W. (2d) 302, 303; State v. Scobee, 331 Mo. 217, 228, 53 S. W. (2d) 245, 250; State v. Creighton, 330 Mo. 1176, 1194, 52 S. W. (2d) 556, 562; State v. Gillman, 329 Mo. 306, 312, 44 S. W. (2d) 146, 148; State v. Decker, 326 Mo. 946, 961, 33 S. W. (2d) 958, 963; State v. Barnes, 325 Mo. 545, 551, 29 S. W. (2d) 156, 158; State v. Hedges (Mo. Div. 2), 295 S. W. 574, 576; State v. Henke, 313 Mo. 615, 627, 285 S. W. 392, 395; State v. Scheufler (Mo. Div. 2), 285 S. W. 419, 421; State v. Wagner, 312 Mo. 124, 129, 279 S. W. 30, 33.
In view of the supposed or apparent conflict between - these cases and the loregoing 'decisions cited by appellant we shall re-examine- the question presented, which is: will this court weigh the evidence in a criminal ease and pass on the credibility of the witnesses, to determine whether the testimony for the State has been “-completely impeached?” The Constitution guarantees the right of trial by jury [Secs. 22, 28, Art. 11]. And Section 3662, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3662, p. 3216), requires that “all issues of fact in any criminal cause shall be'tried by a jury.”' It is the function of the -jury, not the court, to pass on the evidence in -the first instance. But Section 3734, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3734, p. 3272) provides, among other things, that the court may grant a new trial when “the verdict is contrary to the law or evidence:” The expression therein “contrary to the evidence” is broad enough to permit the granting of a new trial because the verdict was against the-weight of the evidence, State v. Harmon (Mo. Div. 2), 296 S. W. 391, 395 (10); and the statute refers, of course, to the trial court. But there is nothing in the Constitution or statutes forbidding this court or any other appellate court from exercising a like power on appeal.
Nevertheless it is well established that generally we
should,
not interfere when the verdict below was supported by substantial evidence. [State v. Harmon, 296 S. W. l. c. 395 (10).] This, as stated, is not because we lack jurisdiction ■ in that behalf. It is because the trial court is in a better position to weigh -the evidence accurately and to determine whether the jury performed their duty fairly and impartially. We do not see the witnesses and jurors, and observe their demeanor during the trial; we are not acquainted with the-general trial atmosphere. [State v. Harmon, supra; Miles v. Haney, 190 Mo. App. 220, 225, 176 S. W. 429, 430.]
But we must in all eases scrutinize the record to see if the verdict was supported by
substcmtial
evidence. In this State the scintilla doctrine does not prevail. [Scrivner v. American Car & Foundry Co., 330 Mo. 408, 424, 50 S. W. (2d) 1001, 1006.] And what is substantial
evidence? Berkemeier v. Reller, 317 Mo. 614, 642, 296 S. W. 739, 752, says it is “evidence'which, iff trüe; would have probative force upon the issjiésN Bnt it is more-than that: even a scintilla of .evidence must tend to prove the issue.. It is so held in jurisdictions where the law requires a case to be-submitted to the-jury on a scintilla of evidence. [26 R. C. L., sec. 76, p. 1070; 23 C. J., sec. 1733, p. 9; 6 Words & Phrases (3 ser.), p. 971; 4 ibid (2 ser.)., p. 483; L. & N. Railroad Co. v. Chambers, 165 Ky. 703, 706, 178 S. W. 1041, 1043 ; Ann. Cas. 1917B, 471, 472; Clark v. Youngs Exr., 146 Ky. 377, 142 S. W. 1032, 1035; Crosby v. Seaboard Air Line Ry., 81 S. C. 24, 31, 61 S. E. 1064; Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 208, 104 N. E. 634, 635.]
To amount to more than a scintilla — that is, to be substantial — it has been said “the evidence must.be óf a character sufficiently substantial, in view of all the circumstances of the case, to warrant the jury, as triers of the facts, in finding from it the fact to establish which the evidence was introduced.” [Holstein v. Benedict, 22 Haw. 441, 445, Ann. Cas. 1918B, 941, 943.] In other words, substantial evidence is evidence from which the triers of the fact reasonably could find the issue in harmony therewith.
This proposition has been stated in different ways. Thus in Offutt v. Columbian Exposition, 175 Ill. 472, 474-5, 51 N. E. 651, where the Illinois Supreme Court was confronted with certain former decisions holding that if there be any evidence tending to prove the plaintiff’s case, it must be submitted to a jury, the court said: “Much confusion has doubtless arisen from -the different meanings attached to the phrase‘tending to prove,’but giving it the meaning . . . that it is ‘evidence upon which the jury could, without- acting unreasonably in the eye of the law, decide in favor of the plaintiff or the party producing it, ’ — most of -the. apparent conflict between the different cases disappears.”
So in Penna. Railroad Co. v. Chamberlain, 288 U. S. 333, 343, 53 Sup. Ct. 391, 77 L. Ed. 819, the U. S. Supreme Court said: “It repeatedly has been held by this court that before evidence may be left to the jury, ‘there is a preliminary question for the judge, not whether there is literally no- evidence, but whether there is any upon which a jury can-properly proceed to find a verdict for the party producing it, upon whom the
onus
.of proof is imposed.’ ”
- Another Federal decision frequently quoted is Jenkins & Reynolds Co. v. Alpena Portland Cement Co., 147 Fed. 641, 643, where it was stated: “What constitutes süch (substantial) evidence may be indicated in another way. If the evidence favoring such facts of the plaintiff’s: case is such that, reasonable men may fairly differ as to whether it establishes them,.then it is substantial,” citing and quot
ing from Grand Trunk Railroad Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485.
The rule in Missouri in civil causes is in harmony with the foregoing decisions. Thus in James v. K. C. Gas Co., 325 Mo. 1054, 1069, 30 S. W. (2d) 118, 123, this court en bane said: “Whether the evidence in a given case is sufficient to support the finding of the-jury, when taken and considered in the fashion in which it must be on demurrer, depends on whether it is sufficient to establish with reasonable certainty in the minds of persons of ordinary and avérage intelligence the existence of the facts on which the' finding is necessarily based.” And in Hardin v. Ill. Cent. Railroad Co., 334 Mo. 1169, 1180, 70 S. W. (2d) 1075, 1079-80, Division One of this court said: “If reasonable minds could fairly and honestly have two views 'of the matter from all the evidence, then plaintiff’s testimony Was substantial evidence of his theory of the facts and it was for the jury to weigh it and determine which view to accept.”
Now since the test of substantial evidence is whether a jury reasonably could find the issue theieon, the result must depend in some measure upon the degree of persuasion required. In a criminal case liberty and sometimes life are- involved, and there cannot be a conviction except upon a finding of g'uiit beyond' a reasonable doubt. Necessarily, therefore, it becomes the duty of an appellate court as a matter of law to decide whether the evidence was sufficient to induce a belief of the defendant’s guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence. And in resolving that question the court undoubtedly can pass on the credibility of the testimony to the extent of determining whether it was substantial in the sense above explained. In no other way can the rights of the defendant be protected. It would be an incongruous situation if the court were compelled to let a conviction Stand as being supported by evidence warranting a verdict of guilt beyond a' reasonable doubt, when
for any reason
made manifest On the record the court is convinced the evidence reasonably could not support a conviction.
In so holding we are not to be understood as departing from the rule announced in the long line of recent cases cited above, that this court will not weigh the evidence in a criminal case if the verdict below was supported by substantial evidence. That rule presupposes there was evidence from which the jury reasonably
could
have returned a verdict of guilty. The same may be said of the rule laid down in State v. Gillman, 329 Mo. l. c. 312, 44 S. W. (2d) l. c. 148, that in passing upon the sufficiency of the evidence in a criminal case the court should take as true all
substantial
evidence offered by the State together with legitimate inferences 'to be ’ drawn therefrom. And the statement in State v. Caviness, 326 Mo. l. c. 998, 33 S. W. (2d) l. c. 943—that this court will interfere when the evidence is so
weak as to raise a necessary- inference that the: .verdict was the-result of passion, prejudice or partiality — expresses; the converse of. the same proposition. For it -is only another way of • saying the verdict must have been- based- on something other than, the evidence — in other words, that the evidence alone was not sufficient.. • . - .
But granting the law in this State is .as outlined above,- the-eases in which this court will set aside a conviction supported by evidence are rare. Where, the State Is evidence is inherently- incredible, self-destructive or opposed to known physical facts, . we are pérhaps in as good a position,to do so- as the trial court. But where it is claimed the testimony is completely impeached by contradictory evidence, we are at a great disadvantage, since .we lack. the means to - knowledge that come through confrontation. About .all that can' be said is that in- such instances we reserve the power to grant relief when the. denial of it would shock the sense of-justice.. • ...
We do not feel constrained to, interfere in this case. ' It is true the prosecuting witness Thompson and. .his wife both testified-they recognized the appellant as one of the robbers at the time of the robbery, and yet admitted they did not :so advise their neighbors who congregated soon, afterward. Also they, did not tell the sheriff who came the next day. Their explanation of this-is hot. entirely satisfactory, but is possible. They contradicted the testimony-of several-of- their neighbors, who.swore that Mr. and Mrs.■ Thompson declared to them they did not know who the robbers were and could not identify them, except .possibly, “the. big fellow.” But we do not' feel -this justifies us in overturning the verdict. This assignment is- ruled against the appellant.
II. The. State put two witnesses on the- stand, Dave G-ayman'and Roy Hamilton..: Although -admonished that they, must answer questions, except such as the court, should rule violative' of their constitutional immunity against self-incrimination, both witnesses refused to answer any questions at all. Thereupon the prosecuting attorney- had certain papers marked as exhibits, stating .they were certified copies of files and records of the Circuit Court of New Madrid County in a criminal case: wherein--said two witnesses were defendants. He said these included the. sentence and judgment of that court and the order fixing the date of execution, and then offered the exhibits in evidence to show the death sentence had -been' imposed upon Gayman and Hamilton in that- case; and.-as a basis for cross-examining them because of their recalcitrance as State’s witnesses in the instant case. All this was in the presence of the jury. Upon the appellant’s objection that the exhibits were incompetent for any purpose the court excluded them, holding the. witnesses were not adverse, since they had refused to testify at all, and that the State could not impeach them
because they were not adverse, citing State v. Bowen, 263 Mo. 279, 282, 172 S. W. 367, 368 and State v. Patton, 255 Mo. 245, 164 S. W. 223. The court announced, however-,-it would permit the prosecuting attorney to cross-examine the witnesses and ask them leading questions-in an effort to refresh their memory.
Thereupon the prosecuting attorney- called as-a witness Mr. S. P. Hunter, a justice of the peace of New;Madrid- County -who testified he had presided at the preliminary hearing of the appellant in the instant cause; that the witnesses Gayman1 and Hamilton testified thereat; and that their testimony was taken in shorthand, transcribed, signed and sworn to by them after they had read’.the same. Mr. .Hunter identified the signatures of both. While these -facts were being-elicited appellant’s-counsel objected repeatedly on the ground that the testimony was wholly immaterial, but the objections were-overruled-. However, -after: the foregoing facts -had been proven; appellant’s counsel moved that all -Mr. Hunter is -testimony relative to' the preliminary examination be stricken and the jury instructed to-disregard it. The court ruled as follows-; '
“By the Court-1: ■ His statement, or: that part of' his testimony identifying some- signature of Dave Gayman
alias
Eddie and of Roy Hamilton may be disregarded, it1'May-be-material with him to show that was the testimony taken-at the preliminary, is that what you want?
‘■‘Mr. CoNRAN: I want to -show that this -was the testimony they gave;
■•“Mb: Bradley:’ The court1 sustained-the objection só' far as them signing'that?
“By the Court : Yes, sir, so far.as it being their-testimony is concerned.”1
As -we understand the ruling of the- court it was that the testimony of Mr. Hunter was competent to show the transcript referred to by the prosecuting attorney contained in general dhe .testimony taken at the preliminary hearing,1 but that' it .could-not be ..used to' identify specifically the testimony given by Gayman and Hamilton thereat. ■
Thereupon the prosecuting attorney interrogated Mr.' -Hunter as to whether-he heard-Gayman and Hamilton testify at the preliminary hearing, and he said he -did. 'He was then asked if the appellant’s attorneys were present and cross-examined both- witnesses and he answered in the affirmative as to one of them, Mr. Baynes. Objection was made by appellant’s! counsel to this line of examination on the ground that the State could not be allowed to- lay a.-basis -for reading the testimony taken at the preliminary and the court held the questions were asked only for the purpose of ascertaining whether Col. Baynes was present at the. hearing-and not for'the-purpose of using the transcript as evidence. To that appellant’s counsel rejoined
that it was wholly immaterial whether Col. Baynes was present-at the preliminary; and saved an exception. Following that, the State recalled Gayman to the stand and examined him as follows:
“Q. Now, then, Mr. Gayman, I want to ask you if you didn’t testify at the preliminary hearing that you — I will ask you if Walter Gregory didn’t tell you that he was-out on ditch six when the hold-up of Fred Thompson took place:
“Mr. Bradley: We certainly object tó that, it is leading and suggestive,. and he is trying to get before the jury indirectly what hé could not do directly, and this witness has already been on the stand and refuses to testify.
“By the Court: You didn’t ask him anything about this, and you had better ask in the usual method, Mr. Conran. Forget that you are mad about anything and ask your questions, ask him just like he was any other witness, if he had a conversation with him.
“Q. HoW long have you known Walter Gregory? A. I refuse to answer, ■
“Q. I will ask you if you didn’t have a Conversation with Walter Gregory after September 7th, 1933 ? A. I refuse to answer.
“Q. And if in that conversation he didn’t tell you—
“Mr. Bradley: We object to what'anybody told him.
“By the Court: Overruled. (Exception saved.)
“Q. That he, Bill Schaffer, James Flowers and Chirp Biddy didn’t go out on ditch six and hold up Mr. Thompson and steal the same identical pistol that is here, and then told you that the pistol was hot and the handles were taken' off to get rid of the initials, and ask you if he didn’t further tell you in that same conversation that they drove up in front of the store'but didn’t stop that there was. a truck there unloading and said that they waited for the truck to get unloaded and then Went back and asked for some gasoline, and that they got in trouble with the woman, and that they had to shoot at the man, didn’t he tell you that? . ■
“Mr.' McKay: We certainly object to any stump speech, it .is leading and suggestive and is not a question in cross-examination of any question asked by anyone.
“By the Court: He ásked him:if he didn’t tell him so and so, of course the Court can’t question the tone in which the question is asked. Overruled. (Exception saved.)
“A. I refuse to answer.
“Q. I will ask you another question, I will ask you if James Flowers didn’t give you this pistol, give it to you .when Walter Gregory was present, I will ask you if that didn’t' happen? A. I refuse to answer.
“Mr. Bradley: We make the samé objection.
“By the Court: Overruled. (Exception saved.)
“Q. I will ask you if you didn’t see Roy Hamilton put tbe tape on the handle of this pistol ? A. I refuse to answer..
“Mr. Bradley: Now if tbe Court please we move and request that tbe Court now instruct tbe jury that they will not consider tbe testimony and tbe questions asked this witness as any evidence against tbe defendant.
“By the Court: Tbe witness hasn’t given any evidence, tbe Court will instruct in writing as he did in tbe other case if the instruction is requested, I can’t repeat it
verbatim,
I will give that instruction if it is requested.”'
At appellant’s request tbe court did later give an Instruction No. 8D, covering the foregoing cross-examination, as follows:
“Tbe Court instructs tbe jury that all questions propounded by counsel for tbe State to the witnesses Gayman and Hamilton and tbe refusal of said witnesses to testify in the case is no evidence of the defendant’s guilt in this case, and cannot be considered by you for any purpose in determining tbe guilt or innocence of tbe defendant on this charge. ’ ’
When the prosecuting attorney offered in evidence, as stated aboye, certain records of another court showing Gayman and Hamilton were under sentence of death, the trial court ruled the State could not thus impeach its own recalcitrant witnesses, because they were not adverse since they had refused to testify at all. The court cited State v. Bowen, 263 Mo. 279, 282, 172 S. W. 367, 368, and State v. Patton, 255 Mo. 245, 258, 164 S. W. 223, 226. These decisions sustain that ruling. In the Bowen ease it was decided that a party cannot impeach his own witness by proof of the witness’s prior statements merely because the witness fails to testify to the facts as expected; that the witness must go further and testify in favor of the opposite party, producing a situation amounting to an entrapment, before he becomes adverse in such sense as to warrant his impeachment by the party producing him. This case is followed in State v. Drummins, 274 Mo. 632, 647, 204 S. W. 271, 275; State v. Hulbert, 299 Mo. 572, 575, 253 S. W. 764, 766; Deubler v. United Rys. Co., 195 Mo. App. 658, 669, 187 S. W. 813, 816; Randazzo v. United States, 300 Fed. 794, 797.
But after having so correctly ruled the learned trial court nevertheless permitted the State to proceed along a course which, it seems to us, had the effect of impeaching the two witnesses. For the prosecuting attorney next called to the stand Mr. Hunter, the justice of the peace at the preliminary hearing, and over appellant’s objection proved by him that both witnesses testified at the preliminary; and that the transcript presented to him for identification contained their testimony given there and bore their true signatures, After all this had got into the record, on motion of appellant’s counsel to strike out
Mr. Hunter ys'testimony the court apparently held'.that his testimony was competent to show the transcript contained in general the evidence taken at the preliminary hearing, but that it could not be shown the specific'testimony of the two witnesses Cayman and Hamilton was presérved therein: Then the prosecuting attorney further proved by Mr. Hunter that he heard Gayman and Hamilton testify at the preliminary and'that'one of appellant’s lawyers, Mr. Baynes, was present and cross-examined them.
We
should have stated earlier, also, that when'Gayman and Hamilton were first put on the stand and refused to answer questions, they were asked by the prosecuting attorney if they had been advised by Mr. McKay, one of appellant’s counsel, not to testify.
' All this was improper under the case cited by the trial court at the time,' State v. Patton, 255 Mo. l. c. 258 et seq., 164 S.
W.
l. c. 226 et seq. It was there held that where an effort- is made
to refresh the 'memory
of a forgetful or unwilling witness (and that is all that can be done where the witness is not adverse so as to permit impeachment) the former written statements of the witness may be exhibited to him for examination, but they cannot be read to the jury. And the case continues: “If necessary to prevent the contents of the paper shown to the witness from getting to the jury, the latter may be withdrawn while the witness is examining and identifying his testimony.” The opinion goes on' tq say ‘ ‘ If the witness deny his statements or refuse to identify the paper as a copy of what he said-before,' '. . . the State is concluded and' such paper may- not be identified by another witness present. . ; The Patton case has been followed in State v. Riles, 274 Mo. 618, 623, 204 S. W. 1, 2; State v. DePriest, 288 Mo. 459, 468, 232 S. W. 83, 86; State v. Henson, 290 Mo. 238, 245, 234 S. W. 832, 834.
Furthermore,' following the examination of Justice Hunter the prosecuting attorney-recalled the witness Gayman to the stand and asked him if he did not "testify at the preliminary hearing and then broke off the sentence and asked him if the "appellant had not made certain admissions to him: Appellant’s counsel 'objected- that the prosecuting attorney’s effort was to get before the jury indirectly what he could not do directly, since the witness was refusing to testify at all. The court admonished- the -prosecuting attorney to “forget that you are mad about anything'and' ask your questions;” and, the prosecutor then asked two unimportant questions, ’ which the witness, refused to answer, and then in one long narrative question incorporated a number of different alleged damaging admissions made by the appellant to the witness acknowledging his guilt in detail. , ' "
We cannot escape the conclusion that prejudicial error was com--mitted against the appellant': Although- the court excluded the ex-
Mbits mentioned above the prosecuting attorney actually got- the fact before the jury that Gayman'and Hamilton-were under death sentence (and therefore unafraid of' court discipline for their refusal to testify). That fact was referred to by the State’s special-counsel during the argument. The jury was made to know further that they testified at the preliminary and signed and swore to a transcript of their testimony; that Col. Baynes, one of appellant’s counsel-was present .and cross-examined them. The transcript was prpduced in court in the presence of the jury. Then the prosecuting-attorney recalled Gayman to the stand, and in an angry -manner asked him questions calculated to give the jury the impression that the appellant had made damaging admissions to him (the witness) concerning which he had testified in the transcript. In oür opinion the dramatization was carried too far; and the poisoning- of the jurors-’ minds could not be cured by the subsequent withdrawal of a part of the evidence and the giving of Instruction No. 8D. [State v. Daubert, 42 Mo. 239, 246; State v. Thomas, 99 Mo. 235, 257, 12 S. W. 643, 650; State v. Webb, 254 Mo. 414, 434, 162 S. W. 622 628.]
If the doctrine of the Patton case is to be adhered to this was wrong; and we think the case is correct in principle. It is true the law is well settled that where evidence is competent for one purpose it cannot be- excluded merely because -it is incompetent- and. prej-udiciál -for. another-purpose: . But. where by presenting the-evidence in a particular manner a.party can get all the benefits therefrom to which he is entitled without prejudicing the -rights of the other party, he should not be permitted to make the showing in -some other manner hurtful to his adversary. As the Patton case rules, the State cannot under the guise of refreshing the memory of its own witness (who is not adverse in a legal sense), prove to the jury that on a former occasion he testified to ‘what he' hofir 'declines to say; becáuse the memory of .the witness can be refreshed, if need be, out of the presence of the jury. State v. Shepard, 334 Mo. 423, 430, 67 S. W. (2d) 91, 95, seems to hold to the contrary. The writer hereof was the author of that opinion, In that case the appellant filed' no brief and the attention of the court was not called to the Patton decision and the cases following it. The -Shepard case is. overruled- so far as it conflicts with the Patton case.
The appellant’s brief directs our attention to State v. Hamilton, 337 Mo. 460, 85 S. W. (2d) 35, wherefrom it appears that the conviction of the recalcitrant witnesses Hamilton and Gayman and the infliction of the death sentence upon them was upon a plea of guilty to murder in the first degree; and that the conviction was affirmed. If the sentence was executed and these witnesses are now deceased, it may be the transcript of their testimony taken at the preliminary hearing will be competent on a retrial-of this ease (though we are not,
of course, passing on that question) under such cases as State v. Pierson, 337 Mo. 475, 85 S. W. (2d) 48, 53 (5) ; State v. Bradford, 324 Mo. 695, 700, 24 S. W. (2d) 993, 994; State v. Harp, 320 Mo. 1, 6, 6 S. W. (2d) 562, 563. Neither are we holding one way or the other on' the question whether the refusal of a witness to testify, through the procurement of a party would be legally equivalent to the death or absence of the witness and would make competent against such party a transcript of the witness’s testimony at a former proceeding in the same case.
We have examined the numerous other assignments in appellant’s brief and in view of the conclusion reached on the points already ctínsidered, we deem it unnecessary to discuss them in this opinion. Some eleven of these assignments complain of error in the giving and refusal of instructions. We find no prejudicial error in the court's ruling on the instructions. The other errors complained of probably will not occur on a retrial of the cause.
For the reasons stated in paragraph II of this opinion the judgment is reversed and the cause remanded for a new trial.
All concur.