Appeal from Second Judicial District Court, Washoe County; A. N. Salisbury, Judge.
Jas. T. Boyd and J. M. Frame, for Appellant.
Geo. B. Thatcher, Attorney-General, and H. C. Price, Deputy Attorney-General, for Respondent.
By the Court, McCarran, J.:
This in an appeal from a judgment following a verdict of conviction for manslaughter and from an order denying a motion for a new trial.
There are many assignments of error, most of which deal with the several instructions given by the trial court, but, in view of the fact that this case must be reversed by reason of the ruling of the trial court in admitting certain evidence hereafter set forth, we deem it unnecessary to dwell at length on other assignments.
During the course of the trial the defendant took the stand as a witness in his own behalf; and on cross-examination, over the timely objection of his counsel, certain interrogatories were propounded to him by the prosecuting attorney relative to a statement purported to have been made by the defendant shortly after the homicide, in the police headquarters, after he was placed under arrest. The record sets forth the following:
Q. (by the prosecuting attorney.) Mr. Wilson, have you ever made any other statement relative to this occurrence, aside from the one which you have made down here on the witness stand? A. Well, I have told something about it.
Q. To whom have you told it? A. I told the captain of police something about it.
Q. Capt. Trembly? A. Yes, sir.
Q. Did you tell any one else about it? A. I told you, I think, a little something about it.
Q. Yes. A. Right after it happened.
Q. About what time of the day was it that you toldA. Well, it was right after the occurrence; I don't know how long after; possibly 1:30.
Q. In that statement which you made to me was any one else present? A. Yes, sir.
Q. Was the statement freely made? A. What?
Q. You made the statement voluntarily, did you not? A. Well, no; not altogether; I was asked questions.
Q. Was any one else present at the time that statement was made? A. Yes, sir; there were three or four. * * *
Q. Calling your attention to the following, I want you to listen to it and state whether or not you made this statement.
At this juncture, as the record discloses, the prosecuting attorney read from a paper a series of questions and answers purporting to be interrogatories propounded to and answers made by the defendant in the presence of the prosecuting attorney, the captain of police, Miss Callahan, a shorthand reporter, and others, in the police headquarters while he was under arrest charged with the killing of deceased. At the conclusion of these interrogatories the prosecuting attorney propounded the question:
Q. Did you make such a statement, or did you not? A. I don't remember these statements.
Q. Did you make them or did you not? A. Well, those statements, I don't remember them as they come, and I was very much excited.
Q. Answer my question. A. And if I made those statements, why it was through excitedness.
Following this the record discloses that, over the objection of defendant's counsel, the witness Miss M. I. Callahan was permitted to testify:
Q. What is your occupation, Miss Callahan? A. Stenographer in the district attorney's office.
Q. Were you such stenographer on the 14th day of October of this year? A. I was.
Q. I will ask you to state whether on that date you saw the defendant, ...