The opinion
Opinion on Motion for Rehearing.
Appellant in his motion for rehearing calls-our attention to some errors in the statement in the original opinion summing up the facts. The motion for rehearing aids us in correct? ing some of them, which we cheerfully do. They are mostly of collateral matters, and we think do not affect the material questions and decision of the case. Eor instance, in the original opinion in summing up, we-incorrectly stated that appellant ran from, the scene as rapidly as he could holloaing,. “Police! police!” Of course, appellant did not do this. It. was, Gothier, the assaulted. *1081 party, who did this. The other facts stated would doubtless show that this was a mistake, but we correct it now. We also stated that, when the appellant presented the pistol, Gothier struck it, and knocked it out of his hand. Perhaps this was stating it too strongly. Our attention is called to the fact that he on cross-examination testified that he did not know whether he knocked the pistol out of appellant’s hand or not. Reviewing the testimony again, we are inclined to believe he did not knock the pistol out of appellant’s hand, but that the appellant or one of the assaulting parties, after getting about a block from where the assault was committed, threw the pistol away at the place, and as otherwise stated in the original opinion.
It is always difficult and sometimes impossible for this court to get distances, courses, and positions of persons and things from a statement of facts. Prom this record, after carefully considering it again, we agree with appellant’s attorneys we cannot tell “whether running up Thirty-First street is going north or south. * * * ” And “appellant
cannot say, and neither can appellant’s attorneys say, whether they were going north or going south.” That is, when the three parties committing the assault were leaving the point where the assault was committed. The streets and localities, and whether there were any buildings on the streets or obstructions so as to prevent persons from seeing, are not disclosed by the record. Neither are the distances given or disclosed. The testimony of the witnesses speaks of Thirtieth street, H. street, Thirty-First street, Winnie street, Market street, Broadway, Thirty-Third, and so on. Doubtless the jury and the lower court were familiar with all of this, and could readily understand the witnesses when they were testifying about what happened and what they saw, and whom they saw at certain streets and places on them. Taking the testimony as a whole, we think it is certain and clear that the assaulted party, Gothier, after he struck the pistol in the hands of appellant who presented it on him, and demanded that he hold up his hands, ran something from between a half block to a block and a half holloaing, “Police”; that the appellant and his two companions, the three implicated in the assault on Gothier, also ran from the scene. None of them went in the direction that old man Gothier did, and it seems that, while they all may have started the same direction, they separated, two going on one side and appellant on the other side of one of the streets, and that the policeman who saw them and identified them when they were running away did so within about a block, more or less, of the place where the assault was committed. The officers testified they saw them running away, and assumed that something unusual had occurred. They did not know then that old man Gothier had been held up or attempted to be held up by them, but saw and identified, as one of the persons who was running away from the locality where the assault had been committed, the appellant. There is no question about this. Whether they went one block or two blocks or within those distances, or went north, south, east, or west, or up or down, or on what street, cannot be material to the decision. Appellant claims (his defense was alibi) that he was not at or anywhere near the place of the assault and did not commit it, but that he was some distance from the place in bed, asleep, and had been so for hours continuously before this. That the state’s witnesses clearly and positively identified him as the party who tried to hold Gothier up, and he and others as near this scene running away from it immediately after the assault was committed there can be no question. So that, while the court in summing up the testimony in the original opinion may have been in error in stating some of the facts, the material facts are clearly shown.
The only ground of complaint in his motion for rehearing is that the court was in error in holding that the confession pf Coleman, one of appellant’s witnesses, was admissible in evidence. We restate this question again briefly. Appellant’s defense was alibi. Among other witnesses, in order to establish it, he introduced .Coleman, who testified for him that at the time and for hours before the claimed assault on Gothier appellant was in bed at a certain house soma distance from where the assault was committed. This was 'important testimony in appellant’s behalf by this witness. The state then was permitted to ask him if on the next day after the night of the assault he did not make a written statement or confession, and in that state the facts, and show that appellant was present and was one of the parties who committed the assault on Gothier at the time and place at which Gothier had testified it had occurred. Witness at first denied making any such statement. When confronted with his written confession to that effect, he would first deny that he made it and then would say that he did make it, but claimed that it was made under duress and by force by one of the officers. Then the state proved by one of the; officers that the statement or confession was made by the witness, and that it was voluntarily made, and no duress or force whatever was used to obtain it.. After this the statement was permitted to be introduced over appellant’s objections; the court stating at the time that he permitted its introduction for impeachment purposes of this witness solely, and correctly so charged the jury in his charge. We apprehend that appellant does not make the distinction between the impeaching of this witness by his previous written sworn statement contradict *1082 ing his testimony on the trial from a confession of appellant. Of course, if it had been appellant’s confession and he had either denied making it, or claimed that it was under duress, force, etc., then it would have been the duty of the court to have instructed the jury that, if the confession was obtained by force and duress, not to consider it at all.
[7] But that was not necessary when a witness and not the appellant is attempted to be impeached. The court gave the only proper charge on the subject. Clearly the confession or statement was admissible to contradict Coleman’s testimony given on this trial, which it directly did.
The motion is overruled.