Winkler, J.
This appeal is from a judgment of conviction of murder in the second degree, the punishment assessed being confinement in the State penitentiary for a term of five years. The indictment charges this appellant and one Charley Reed with the murder of one Frank White, alleged to have been committed in the county of Cooke, on March 17, 1880.
From the testimony adduced on the part of the prosecution on the trial in the court below, and from bills of exception set out in the transcript, it is manifest that the State relied for a conviction upon proof of one of two positions: First, that this appellant had entered into a conspiracy with her co-defendant, Charley Reed, prior to the homicide, to take the fife of the deceased; or, second, that this appellant was present at the homicide, and so participated in the killing as to render her amenable to the law as a principal to the crime of murder. There is no question that the deceased came to a violent death, [392]*392about the time and at the place alleged in the indictment. It is shown by the testimony, with at least reasonable certainty, that- the deceased and the appellant were husband and wife, but that, from some cause not stated in the record, had not been living together for some time previous to the time of the killing; that the appellant, while so living apart from the deceased, had rented a room in a house in the northern portion of the town of Gainesville, Cooke county, where she was living at the time of the homicide, and that, whilst she was so living apart from her husband, her co-defendant Reed had been living with this appellant and occupying with her the same room. There was testimony tending to show that Reed occupied to the appellant the relation of a boarder with her, and that at the time of the killing there were two beds in the room; one spread upon the floor, and the other on a bed-stead. There was also testimony that the killing occurred in the night time and after the ordinary time for going to bed, but the time is not definitely stated. It was also in proof that the only outside door to the room had been violently broken in from the outside of the building; and, when persons living near by, who heard the noise occasioned apparently by the breaking open of the door and the report of two or three shots, went to the place soon after, the deceased was found in the room, dead, and the defendant sitting upon the floor, holding in her. lap the head of the dead man; with some testimony to the effect that, soon after the firing had been heard, Reed was seen running rapidly away from the direction of the place where the murder, if murder it was, had been committed. There was proof of disagreement between the defendant and the deceased prior to the homicide, and there was also proof of hard feelings between the deceased and Reed, and of wordy altercations between them, and some proof of threats made by the deceased against the person and life of Reed [393]*393shortly before the killing. There was also testimony tending to show that a very short time before the killing the defendant and the deceased had compromised their differences and disagreements, and had agreed to live together again, and that the defendant had arranged for a removal, on the day after the killing, to another house in the town, where it seems the parties were to re-unite and live together.
On the subject of proof of the conspiracy between the • defendant and her co-defendant Eeed to take the life of the deceased, it appears that there was a heated controversy between counsel representing the respective sides of the controversy, pending the introduction of the testimony, as to whether such conspiracy had been proved or not, and wherein certain positions were taken and arguments employed by counsel representing the prosecution, to which counsel for the defendant deemed to be improper to be made in the presence of the jury, and calculated to prejudice their minds against the defendant; and the court declining to interpose, counsel for the defendant took a bill of exceptions, and this action of the court enters into the defendant’s motion for a new trial, and is assigned as error committed on the trial below. This subject will be recurred to hereafter. We gather from the bills of exception and by the failure of the judge to charge the jury on this subject that in the opinion of the court the testimony did not establish a conspiracy between the defendant and Eeed to take the life of the deceased; and hence we conclude from the record that the position assumed by the prosecution on the subject of such conspiracy fell to the ground and was eliminated from the trial. This action of the court inured to the benefit of the defendant in that it determined one apparent issue in the case in her favor, and whether the action of the court was strictly correct in this particular or not, the appellant ought not to be heard to complain.
[394]*394It is also shown by bill of exceptions that on more than one occasion during the progress of the trial below counsel for the prosecution attempted to impeach certain of the State’s witnesses by showing that they had testified in court contrary to statements made on a former trial; to which defendant’s counsel objected, taking the ground that none of the emergencies had arisen which permitted a party to impeach his own witness. The matters set out in these bills of exception have direct reference to the Lules of practice in the trial courts rather than to errors for which a judgment should be reversed on appeal. It is a rule of practice in. this court not to revise the action of the trial courts as to matters confided to the sound discretion of the judge below, unless it is made to appear that the discretion so confided has been abused to the prejudice of the party complaining.
As to the matters set out in the bill of exceptions just referred to above, it is not perceived that the action of the court, in so far as the ruling on the subject under consideration is concerned, could have prejudiced the defendant, for the reason that the result of the ruling was to sustain the position contended for by the defendant’s counsel, that a conspiracy had not been proved. This, however, does not meet the entire objection to the course pursued as to the latitude taken by counsel who were assisting in the prosecution and permitted them by the court, over obj ection by the defendant’s counsel. It is contended that the argument used was calculated to create a prejudice in the minds of the jury against the defendant, and that it was used for that very purpose. If it was not used for that purpose, then we confess that we are unable to determine its object. If there was anything in the argument, if argument it can be called, which was calculated to illumine the minds of the court as to the law of the question involved, we are unable to see it. We are of opinion the course pursued was altogether out of place, [395]*395and that the court should have interfered, and that promptly, to put a stop to it by a peremptory order, to have been enforced on disobedience by the well-known powers with which the courts are armed for the enforcement of obedience to their lawful orders and rulings. This kind of proceeding is well calculated to arouse the feelings and excite the passions of those within hearing. Questions of law may and often do arise as to the admissibility of testimony, and these questions may be discussed by counsel under the control and direction of the court. In practice there can rarely be occasion for denunciation of party or witness in discussing the law at this stage of the proceedings.
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Winkler, J.
This appeal is from a judgment of conviction of murder in the second degree, the punishment assessed being confinement in the State penitentiary for a term of five years. The indictment charges this appellant and one Charley Reed with the murder of one Frank White, alleged to have been committed in the county of Cooke, on March 17, 1880.
From the testimony adduced on the part of the prosecution on the trial in the court below, and from bills of exception set out in the transcript, it is manifest that the State relied for a conviction upon proof of one of two positions: First, that this appellant had entered into a conspiracy with her co-defendant, Charley Reed, prior to the homicide, to take the fife of the deceased; or, second, that this appellant was present at the homicide, and so participated in the killing as to render her amenable to the law as a principal to the crime of murder. There is no question that the deceased came to a violent death, [392]*392about the time and at the place alleged in the indictment. It is shown by the testimony, with at least reasonable certainty, that- the deceased and the appellant were husband and wife, but that, from some cause not stated in the record, had not been living together for some time previous to the time of the killing; that the appellant, while so living apart from the deceased, had rented a room in a house in the northern portion of the town of Gainesville, Cooke county, where she was living at the time of the homicide, and that, whilst she was so living apart from her husband, her co-defendant Reed had been living with this appellant and occupying with her the same room. There was testimony tending to show that Reed occupied to the appellant the relation of a boarder with her, and that at the time of the killing there were two beds in the room; one spread upon the floor, and the other on a bed-stead. There was also testimony that the killing occurred in the night time and after the ordinary time for going to bed, but the time is not definitely stated. It was also in proof that the only outside door to the room had been violently broken in from the outside of the building; and, when persons living near by, who heard the noise occasioned apparently by the breaking open of the door and the report of two or three shots, went to the place soon after, the deceased was found in the room, dead, and the defendant sitting upon the floor, holding in her. lap the head of the dead man; with some testimony to the effect that, soon after the firing had been heard, Reed was seen running rapidly away from the direction of the place where the murder, if murder it was, had been committed. There was proof of disagreement between the defendant and the deceased prior to the homicide, and there was also proof of hard feelings between the deceased and Reed, and of wordy altercations between them, and some proof of threats made by the deceased against the person and life of Reed [393]*393shortly before the killing. There was also testimony tending to show that a very short time before the killing the defendant and the deceased had compromised their differences and disagreements, and had agreed to live together again, and that the defendant had arranged for a removal, on the day after the killing, to another house in the town, where it seems the parties were to re-unite and live together.
On the subject of proof of the conspiracy between the • defendant and her co-defendant Eeed to take the life of the deceased, it appears that there was a heated controversy between counsel representing the respective sides of the controversy, pending the introduction of the testimony, as to whether such conspiracy had been proved or not, and wherein certain positions were taken and arguments employed by counsel representing the prosecution, to which counsel for the defendant deemed to be improper to be made in the presence of the jury, and calculated to prejudice their minds against the defendant; and the court declining to interpose, counsel for the defendant took a bill of exceptions, and this action of the court enters into the defendant’s motion for a new trial, and is assigned as error committed on the trial below. This subject will be recurred to hereafter. We gather from the bills of exception and by the failure of the judge to charge the jury on this subject that in the opinion of the court the testimony did not establish a conspiracy between the defendant and Eeed to take the life of the deceased; and hence we conclude from the record that the position assumed by the prosecution on the subject of such conspiracy fell to the ground and was eliminated from the trial. This action of the court inured to the benefit of the defendant in that it determined one apparent issue in the case in her favor, and whether the action of the court was strictly correct in this particular or not, the appellant ought not to be heard to complain.
[394]*394It is also shown by bill of exceptions that on more than one occasion during the progress of the trial below counsel for the prosecution attempted to impeach certain of the State’s witnesses by showing that they had testified in court contrary to statements made on a former trial; to which defendant’s counsel objected, taking the ground that none of the emergencies had arisen which permitted a party to impeach his own witness. The matters set out in these bills of exception have direct reference to the Lules of practice in the trial courts rather than to errors for which a judgment should be reversed on appeal. It is a rule of practice in. this court not to revise the action of the trial courts as to matters confided to the sound discretion of the judge below, unless it is made to appear that the discretion so confided has been abused to the prejudice of the party complaining.
As to the matters set out in the bill of exceptions just referred to above, it is not perceived that the action of the court, in so far as the ruling on the subject under consideration is concerned, could have prejudiced the defendant, for the reason that the result of the ruling was to sustain the position contended for by the defendant’s counsel, that a conspiracy had not been proved. This, however, does not meet the entire objection to the course pursued as to the latitude taken by counsel who were assisting in the prosecution and permitted them by the court, over obj ection by the defendant’s counsel. It is contended that the argument used was calculated to create a prejudice in the minds of the jury against the defendant, and that it was used for that very purpose. If it was not used for that purpose, then we confess that we are unable to determine its object. If there was anything in the argument, if argument it can be called, which was calculated to illumine the minds of the court as to the law of the question involved, we are unable to see it. We are of opinion the course pursued was altogether out of place, [395]*395and that the court should have interfered, and that promptly, to put a stop to it by a peremptory order, to have been enforced on disobedience by the well-known powers with which the courts are armed for the enforcement of obedience to their lawful orders and rulings. This kind of proceeding is well calculated to arouse the feelings and excite the passions of those within hearing. Questions of law may and often do arise as to the admissibility of testimony, and these questions may be discussed by counsel under the control and direction of the court. In practice there can rarely be occasion for denunciation of party or witness in discussing the law at this stage of the proceedings. Whenever a question as to the admissibility of evidence is to be discussed alone to the judge, the jury should be retired out of hearing for the time. In this instance, the jury should have been taken to a place of safety until the storm of words had passed.
As to the right of a party to impeach his own witness, Mr. Wharton says (1 Wharton’s Law of Evidence, § 549): “By a technical rule of the English common law, while a party may contradict his own witnesses, though this may discredit them, he is not ordinarily permitted to impeach them, even though called afterwards by the opposite side, either by general evidence, or by proof of prior contradictory statements. By calling the witness, so it is argued, a party represents him to the court as worthy of credit, or at least not so infamous as to be wholly unworthy of it; and if he afterwards attack his general character for veracity, that is not only mala fides towards the tribunal, but it ‘ would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke against him.’ In this country, while a party cannot ordinarily discredit Ms own witness, his right to prove a case inconsistent with that stated by such witness is unquestioned, even though tMs discredits [396]*396the witness incidentally. We have also held that even at common law, adverse witnesses who tell a story contradicting that which they had previously given may, on the party calling them being thus surprised, be examined as to their former statements, in all cases where it would appear that a deception has been practiced on the party examining, and that he has been guilty of no negligence or loches. In England, the right to ask as to such former statements has been much agitated, though the weight of authority, at common law, is against the right so to impeach, unless with the limitation just expressed. On the other, hand it is urged £ that, although a party who calls a person of bad character as a witness, knowing him to be such, ought not to be allowed to defeat his testimony because it turns out unfavorable to him, by direct proof of general bad character,’—yet it is only just that he should be permitted to show, if he can, that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial; that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favorable evidence (being really in the interest of the opposite party), and afterwards by hostile evidence ruin his cause; that the rule, with the above exception, as to offering contradictory evidence ought to be the same whether the witness is called by one party or the other, and that the danger of the jury’s treating the contradictory matter as substantive testimony is the same in both cases; that, as to the supposed danger of collusion, it is extremely improbable, and would be easily detected. It may be further remarked that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as civil proceedings; that the ends of justice are best attained by allowing free and ample scope for scrutinizing evidence [397]*397and estimating its real value; and that in the administration of criminal justice, more especially, the exclusion of proof of contrary statements might be attended with the worst consequences.” So far, however, as concerns impeaching .witnesses generally this view does not obtain. But a party bona fide surprised at the unexpected testimony of his witness may be permitted to interrogate the witness as to his previous declarations alleged to have been made by the latter, inconsistent with his testimony, the object being to probe the witness’ recollection, and to lead him, if mistaken, to review what he has said. Such corrective testimony, also, is receivable to explain the attitude of the party calling the witness. But when the sole object of the testimony so offered is to discredit the witness, it will not be received.”
We have copied the entire paragraph of Mr. Wharton as embracing an epitome of the general rules of the common law as well as the exceptions and modifications to general rules on the subject under consideration. Besides these common law rules we have a special provision of the Code of Criminal Procedure, which, to the extent to which it applies, is the rule of law governing the question; when it does not apply, as there is no other statutory provision on the subject, the common law rules apply. The article of the Code is as follows: “ The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness.” Code Crim. Proc. art. 755. To our minds, it being shown that the State’s witnesses had testified on a former trial, the State had a right to suppose they would swear to the same facts on the present trial, and they having failed to do so, it was competent for counsel representing the State to inquire of the witnesses as to what different facts they had testified [398]*398to, or what contradictoy statements they had made on the former trial, for the purpose of showing surprise at the testimony, or for the purpose of probing the recollection of the witnesses and to refresh their memory, even though they had not stated .facts injurious to the party calling them; and in the latter contingency they might have been impeached, under the article of the Code cited, in any other manner except by proving the bad character of the witnesses.
The fault, however, in the proceeding as we find it set out consists in the fact that it does not appear what object counsel had in view in making the inquiry of the witnesses with reference to their testimony in the previous trial, and the further fact that it does not appear that any steps whatever were taken to guard the jury against taking the supposed contradictory statements made on the former trial as evidence against the defendant on the trial then being had before the court and jury, which should have been done, and a failure to exercise this precaution was likely to have resulted prejudicially to the defendant then on trial.
On the trial below several instructions were requested by the defendant’s counsel which were refused by the court, and among them the following: “Unless the jury believe from the evidence that the defendant and her co-defendant Charles Eeed had conspired together to take the life of the deceased or to do him some serious bodily harm, you will disregard any acts or words of said Eeed in your deliberations, for in that event you are instructed by the court that such acts and words are no evidence against the defendant.”
This instruction was substantially correct to the extent it goes, but fell short of being all the law on the subject to the extent that it did not include acts done or words spoken by Eeed in the presence of the defendant under any of the circumstances mentioned in the Code which [399]*399would render her guilty as a principal offender, as in such case the law of conspirators would not be the only law which would render the acts or declarations of one evidence against the other. The charge should have been given with the modification suggested, as the attention of the court had been invited to the subject.
Other errors are complained of as having occurred on the trial, some of which are regarded rather as irregularities than as errors which should be regarded as factors in determining the merits of this appeal; and others are complained of which are not likely to occur on another trial.
The testimony is voluminous and peculiar. This we have studied with care, and are constrained to say that, with the exception of some expressions of witnesses unfavorable to the defendant, made use of on direct examination and which were neutralized or done away with on cross-examination, we fail to discover any such testimony as pertinently connects the defendant with the taking of the life of the deceased, either as a co-conspirator with Reed, or as having agreed to the commission of the deed and being present at the time of its perpetration, or as connects her with the killing of the deceased sufficiently to render her hable under the law as a principal in the act or a principal offender under any of the provisions of the Code, so as to support a verdict of guilty of a felony and consign her to a felon’s cell, or such as should be permitted to stand as a precedent.
Because of the meagemessand the uncertain and insufficient character of the testimony, and because of the other errors indicated, the judgment of the District Court will be reversed and the case remanded for a new trial.
Reversed and remanded.