¶1(dissenting). I do not think it was competent to introduce the statement of Arnold made on a former trial, for the purpose of contradicting it, in the manner allowed in the present case. The statement contains no admission whatever, and the whole' of it was exculpatory. The only possible purpose of it was to prejudice the jury by inducing them to believe that the defendant, on a previous trial, had introduced a defense which did not then prevail, and on one point of which the prosecution now contradicts him.
¶2I do not think this practice is either fair or legal. The jury on a second trial have no concern with what was the testimony acted on in a former one. On every trial it is the business of the prosecution to make out a case independently. The law contemplates that before going to trial the prisoner shall be informed of the names of the witnesses to be produced against him, so as to be prepared to controvert their testimony, as well as to show their character and learn of their standing. And no prisoner can be expected to anticipate that a witness will be introduced of whom he has never heard, or that one will be introduced upon a question which is in itself collateral and irrelevant.
¶3When this case was disposed of before, one of the grounds of reversal was that stress had been allowed in the court below to be laid on the failure of the defendant to back up his statement by corroborating proofs. It cannot be seriously contended that a defendant could introduce testimony independently that some one in Ohio had asked him to inquire into the price of flour in Detroit. That would have no legal tendency to show that he had an honest purpose in visiting Sabin's store, any more than failure to show it would prove a dishonest purpose. It is very questionable how far such testimony standing alone could be introduced at all. But this is not very important in view of the shape the case took on the trial.
¶4*308The only manner in which the fact came up at all was not from any statements which formed part of the res gestee, and not in connection with any admission of any kind, but in denial of the truth of a collateral fact which was introduced in testimony on the first trial by the defendant as part of his own case. I am unable to see why it would not have been just as competent for the prosecution, as a part of his case, to have shown that on the former trial the defendant introduced this same matter, or any other matter by other witnesses, and then contradict those witnesses. What a party does to get up a false defense is as much his act, when he does it by swearing others, as when he makes proof by his own statement. The whole force of the prosecutor’s purpose here is to show that the defense in the former case was untrue. Any one would see the absurdity of attempting such a task by showing what the witnesses swore, and then contradicting them. The statement of the defendant cannot stand on any different footing except so far as it amounts to a confession. The result of any such practice would be clearly illegal, and every jury would be allowed to try cases, not on their merits, but on their conjectures as to what may have operated on a former trial in aid or prejudice of justice.
¶5The prisoner, if this witness had been called on any fact in controversy, and he had been notified that such a witness was in the case, might have been prepared to impeach him, or if informed he might be called concerning the Cleveland business, might have prepared himself with testimony which we have already decided he could not be criticised for not producing. The facts sworn to by the contradicting witness had nothing whatever to do with the affirmative case of the prosecution, and might have been either way without showing that the prisoner had any part with the person who stole the money, if it was stolen at all.
¶6The effect of allowing the course taken was practically to cut off the prisoner from his statutory right of making a statement at all. It is impossible not to see that this *309was the very thing the prosecution meant to do. Any one can see how useless it would have been for the prisoner to make a statement of any sort when the prosecution' had been allowed to anticipate and contradict it, and assail it as a trumped-up story. No ingenious theory can conceal the contrivance — for in my opinion it is nothing else — to cut off a most valuable right.
¶7Evidence that a prisoner has endeavored to tamper with witnesses or others has sometimes been allowed, and may be admissible. How far it is independently admissible is not now important. But I think it would be difficult to find any reason or principle or authority for holding that a prosecution on one trial can introduce as a part of its own ease evidence of the untruth of a defense on a former trial. Such a practice would be a novelty in jurisprudence, and I am not prepared to concur in it.