Kruger

The information charges appellant, jointly with one Oman, with the crime of burglary. He was convicted, and appeals from the judgment and from an order denying a new trial.

Oman, who had pleaded “ guilty,” was called as a witness for the prosecution, and testified that appellant had nothing to do with the commission of the alleged crime. The prosecuting attorney was allowed, on the ground of surprise, to ask the witness if at the time he pleaded guilty he had not stated in the presence of the court, the clerk, the shorthand reporter, the prosecuting attorney and others, that appellant was one of the parties who committed the crime, and had climbed over the roof through the skylight, etc. To this counsel for appellant objected, not upon the ground that it was not a genuine case of “surprise,” but upon the ground that if he made such a statement he should first have the testimony read to him. We do not think that the court erred in overruling the objection. The purpose was not to impeach the witness by a written instrument, but simply to lay a foundation for showing that he had made contradictory statements. It does not even appear that the statement referred to was in the shape of…