¶1 I concur in the reversal of the judgment on the ground of insufficiency of the evidence to support the verdict.
¶2 I dissent from the ruling admitting in evidence the conversation between Snyder and witness, Redd. When the matter first came up, and when the state sought to elicit testimony respecting the conversation had, not in the presence of the accused, the defendant interposed an objection thereto on the ground that the testimony called for was hearsay and incompetent. The state claimed the testimony competent on the theory that Snyder and the accused were coconspirators in a conspiracy to steal the sheep, the subject of the larceny. Manifestly, whatever was then said by Snyder was long after the completion of the claimed unlawful enterprise, and not in pursuance, or in furtherance, or during the pendency of it. Thus, I am of the opinion that the objection was well taken. The trial court then so ruled, but more largely based the ruling on the ground that the concerted action of Snyder and the accused in the commission of the crime had not yet been sufficiently shown. So, after the state adduced further evidence concerning the commission of the offense, it then recalled the witness Redd, and, after showing by him that he several months after the commission of the crime had a private conversation with Snyder and when no one else was present, and asked the witness to state, “Q. What was said” between him and Snyder in such conversation? Counsel for the accused again objected on the same ground as theretofore. Thereupon con *584 siderable discussion was had as to the competency of the testimony. At the conclusion of the discussion the court overruled the objection and permitted the witness to answer. Thereupon the witness answered as set forth in the prevailing opinion. On the motion for a new trial, the trial court ruled that error was committed in receiving the testimony but that the ruling was not prejudicial. On a review of the matter, this court holds that the answer made by the witness was not responsive to the question propounded to the witness by counsel for appellant, and therefore counsel ought to have made a motion to strike the answer of the witness, and, not having done so, cannot now be heard to complain. I dissent from that holding.
¶3 The rule quoted in the prevailing opinion from 28 R. C. L., in my judgment, is not applicable to the situation. I think the matter here involved is not within the rule there stated.
¶4 The question propounded to the witness by the state, the objection to which was overruled, related to a conversation had between the witness and Snyder admittedly not in the presence of the accused and long after the commission of the offense, and not in pursuance, or in furtherance or during the pendency of the unlawful enterprise, and with respect thereto the state asked the witness to state “what was said” in such conversation, not only by Snyder, but also by the witness. The objection being overruled, the witness proceeded to answer the question. In doing so, he stated that Snyder asked him if he was sure the witness had lost some sheep, and that the witness answered he was pretty sure he had. Thereupon counsel for the accused requested the witness “to state that slow,” whereupon the witness answered that he was not sure that what he had said were the exact words. Thereupon counsel asked him if he was giving it as he remembered it. To this the witness answered, “Yes, sir.” Then counsel asked the witness what he stated to Snyder in reply. The witness then proceeded to state the whole conversation, what Snyder said and what the witness said. Hence what the witness testified to was in response, *585 not only to the question asked by the state, but also was responsive to what counsel for the accused was asking the witness.
¶5 . But the matter lies deeper than that. The state, by its question propounded to the witness, “What was said?” opened the door to the entire conversation. After the objection was overruled, the state could not elicit only a part of the conversation and bar the accused from eliciting the whole of it. Nor can it successfully be contended that when improper testimony is received, over timely objections, the party against whom it is received waives his objections by cross-examining or otherwise interrogating the witness concerning the matter opened up by his adversary. For the rule is that one who has brought out improper testimony on the examination in chief of his witness cannot complain of a cross-examination of the witness on the same subject. 40 Cyc. 2496. And the rule is just as well settled that, when on direct examination a part of a conversation or transaction is elicited the opposing party on cross-examination may elicit the whole of it. 40 Cyc. 2491. What counsel for the accused elicited directly related to the subject inquired about and opened up by the state. So we come back to the proposition of whether the timely objections interposed by counsel for the accused were properly overruled. For the reasons already stated, I am clearly of the opinion that the court erred in such ruling and that whatever harm was occasioned by the testimony was the result of such ruling. I also am of the opinion that the testimony was prejudicial. However, inasmuch as the case must be reversed on the ground of insufficiency of the evidence to support the verdict, it is unnecessary to express an opinion as to whether the improper testimony was of such prejudicial effect as alone to require a reversal of the judgment. But, as the case is remanded for a new trial, I think it proper that we express an opinion as to the competency of the testimony so proffered by the state and received in evidence over the objections of the accused. That I have done.