The opinion
MR. CHIEF JUSTICE ADAIR:
(specially concurring).
At common law a person convicted in a court of record of any felony thereupon became disqualified from being a witness. This disqualification is removed in this jurisdiction by a statute providing that notwithstanding his conviction such person is a competent witness in any cause or proceeding, civil or criminal, “but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his examination as such witness.” (Emphasis supplied.) R. C. M. 1947, sec. 94-4723; State v. Stein, 60 Mont. 441, 446 , 199 Pac. 278 .
In this jurisdiction after a person who has suffered conviction of a felony has been sworn and given testimony in a case he may then be impeached by the party against whom he was called by showing “by the examination of the witness, or the record of the judgment, that he has been convicted of a felony. ’ ’ (Emphasis supplied.) R. C. M. 1947, sec. 93-1901-11.
The foregoing statutes are plain and unambiguous. They are readily understood. They speak for themselves. Their meaning is so clear as to defy construction. An unambiguous statute should not be interpreted, — it should be enforced. It is the duty of the court to take these statutes as it finds them and to apply the simply worded clearly stated law as it finds it. Here the simple word “or” means “or,” — not “and.” The simple word “either” means “either,” — not “both.” The word “a” means “a” and not some other, larger and less clearly defined word or phrase. See Shields v. Shields, 115 Mont. 146, 155 , 139 Pac. (2d) 528 ; State ex rel. Goings v. City of Great Falls, 112 Mont. 51 , 112 Pac. (2d) 1071 .
■ The state argues for a construction which would insert in the statute the word “both” for the word “either” and the word “and” for the word “or.” Such is not our office. The *39 law says the office of the judge is simply to ascertain and declare what is in terms or in substance contained in the statute, “not to insert what has been omitted, or to omit what has been inserted”. R. C. M. 1947, sec. 93-401-15.
Here the defendant was sworn, took the witness stand and gave testimony in his own behalf. Thereby he subjected himself to impeachment in the manner and for the purpose provided in sections 93-1901-11 and 94-4723, supra.
At the outset of his cross-examination of the defendant the county attorney promptly and fully availed himself of the opportunity and advantages given him by the above statutes by propounding the usual and proper impeaching question to which the defendant made affirmative answer. The defendant’s admission that he had been convicted of a felony so given from the witness chair was and is sufficient proof of that fact.
“The proof must be limited to proof of the conviction; under no circumstances may facts in evidence at the former trial or the details and circumstances of the offense be gone into.” 3 Wharton’s Criminal Evidence, (11th Ed.), Witnesses, see. 1374, p. 2261.
With defendant’s admission before the jury and in the record, the fact that he had theretofore been convicted of a felony was no longer in issue. Nevertheless the county attorney, over defendant’s proper and timely objections, proceeded to further probe and inquire into facts not touched upon in his ease in chief nor in the direct testimony of the defendant witness, thus making the defendant his own witness. Having done so he was and is bound and concluded by the answers of the witness and it was fatal error for the trial court to thereafter permit the witness to be impeached upon such testimony so injected into the case by the county attorney. State v. Smith, 57 Mont. 349, 362-365 , 188 Pac. 644 .
The record shows:
‘ ‘ Cross Examination by Mr. Hoyt:
“Q. Mr. Coloff, I believe you—
“The Witness: Mr. Hoyt, you will please just talk a little *40 louder because I can’t hear very good. I almost got into trouble—
.“The Court: ¥e don’t care about that.
“The Witness: Excuse me. Yes.
“Mr. Stromnes: May I request, humbly request, your consent to sit here where I can also see the witness?
■ ‘ ‘ The Witness: Talk louder please.
“Q. Mr. Coloff, I believe that you testified a while ago that you realized you were testifying under oath, is that correct? A. Yes.
“Q. Mr. Coloff, have you ever been convicted of a felony? A. Yes.
“Q. And what was the charge?
“Mr. Stromnes: Object to as — that the question is a—
‘ ‘ The Court: Overruled.
“Mr. Stromnes: May I note my exception?
“Q. What was the charge? A. I don’t know. The charge was bankruptcy. I don’t know just exactly what it is.
“Q. You don’t know what you were charged with? A. No. I know what bankruptcy is.
“Q. Do you know what crime you were charged with? A. No, I don’t know.
“Q. Do you know what you were convicted of?
“Mr. Stromnes: Just a moment. Don’t answer that question now. (Whereupon the question ‘Do you know what you were convicted off’ was read by the court reporter.)
“Mr. Stromnes: That is objected to as improper and highly prejudicial and we move the Court at this time for a mistrial.
“The Court: The objection is overruled. Motion denied.
“Mr. Stromnes: We now move the Court for an order admonishing the jury at this moment to disregard both the question and the answer by reason of the fact that the question was either ignorantly or knowingly put to prejudice this defendant with this jury.
“The Court: Motion denied. He has answered he didn’t know. You can’t go any further on that.
*41 “Mr. Hoyt: You say I can’t go any further on that?
“The Court: He says he doesn’t know. ° •
“Mr. Hoyt: Your Honor, may I make an offer of proof at this time?
“The Court: Well, yes. It will have to be made in chambers. (Whereupon, in chambers and outside the hearing of the jury, the following proceedings were had:)
“The Court: All right. Your offer. This is on cross examination. It is not required, but you may make it.
‘ ‘ Mr. Hoyt: If I am correct, your Honor stated that I could go no further in my line of questioning.
“The Court: Go ahead with your offer.
“Mr. Hoyt: But I offer to prove by the witness, the state offers to prove by the witness now on the stand that that witness was convicted of perjury and that he knows that he was convicted of perjury, and that this is given for purposes of impeachment of the witness now on the stand. And I cite Section 10668 of the Revised—
‘ ‘ The Court: Show it to me.
“Mr. Hoyt: Of the Revised Codes of Montana, 1935, and the case of State v. Garney, Mont., 207 Pac. (2d) 506 , at page 506.
“Mr. Stromnes: To the offer of proof as made by the county attorney, the defendant objects for the reason that the record now discloses that the defendant admitted that he has been convicted of a felony, and that if the county attorney should be permitted to then pursue the inquiry further or pursue his proof as his offer indicates, that it would tend to degrade the defendant and to impeach the defendant in a method not known or recognized by any law or laws or decisions of the State of Montana; that such proof would not be only highly improper, but would be prejudicial to the defendant and justify an order of the Court declaring a mistrial, and would impel the Supreme Court of this state under recognized statutes and decisions to reverse any judgment or conviction in this case if a verdict of guilty were returned. The offer suggests proof, in addition to *42 its prejudicial nature and character which is entirely foreign to any issue raised by the information and the plea, and would not tend to prove or disprove any issue of fact in this case; that said proffered evidence would be further highly prejudicial for the reason it would have a tendency to put the defendant on trial in this cause for a criminal offense committed years ago and would therefore confuse the jury and would prejudice the defendant with the jury and would obfuscate the jury, and might well cause the jury to think, whether or not lawfully or properly so, and so proceed as to retry the defendant on or with respect to the offense which he has already admitted was a felony committed years ago, and thus cause one or more or all of the jurors to be confused as to the issues in this case irrespective of the instructions which his Honor will give at the termination of the testimony in the event the case reaches the jury. I think I have covered it sufficiently broadly there.
‘ ‘ The Court: The witness having admitted that he was convicted of a felony and having stated that he did not know the nature of the charge other than it arose out of bankruptcy proceedings, the Court is of the opinion that any further questions along this line from this particular witness is objectionable and the objection is sustained. (Whereupon, in open court, in the presence and hearing of the jury, the following proceedings were had:)
“The Court: Ladies and gentlemen of the jury you are admonished by the Court it is your duty—
“Mr. Stromnes: May I request your Honor to advise the jury that the offer of proof was denied in the record so that the jury hears it?
“The Court: Yes, the offer of proof was made and on objection made the objection was sustained. The offer of proof denied. The record of course shows that.” Thereupon with the usual admonition to the jury the trial court recessed for two hours.
Upon convening after recess the trial court reversed its former rulings excluding the offered proof, whereupon the *43 county attorney offered in evidence, as the state’s exhibit No. 1, the document- designated “Judgment and Commitment” set forth at length in the foregoing opinion by Mr. Justice Freebourn.
Thereupon the following proceedings were had:
“Mr. Hoyt: Yes, I offer it in evidence.
“Mr. Stromnes: To which exhibit the defendant objects because it is highly prejudicial, irrelevant and not material to any of the issues of fact raised under the information or involved in this case, nor does it tend to either prove or disprove any issue in this ease, but has been offered in the first instance, in my opinion, by the county attorney for the purpose of inciting prejudice in the jurors or some or one or more members thereof against the defendant, and that it serves no purpose in this case. I think that covers it.
‘ ‘ The Court: For what purpose is this exhibit offered ?
“Mr. Hoyt: Your Honor, this exhibit is offered for purposes of impeaching the witness now on the stand.”
Defendant’s objections were overruled and state’s exhibit No. 1 was received in evidence. Whereupon the following occurred :
“Mr. Stromnes: And may I now move the Court for a mistrial because I believe that the admission of this exhibit would be prejudicial to the defendant and render him unable to obtain a fair and impartial trial from this or any jury.
“The Court: The introduction of impeaching evidence is of course prejudicial to a defendant. That is its purpose, by way of impeachment, and that is no proper objection in the Court’s mind. The Court has already ruled the evidence is admissible. You had your objection.
' ‘ Mr. Stromnes: I now make a motion for a mistrial.
“The Court: Your motion is denied.
“Mr. Stromnes: I would like it in the record.
“The Court: Well, you got it in the record. Your motion is denied.
“Mr. Hoyt: May I proceed now?
*44 “The Court: Yes. (Whereupon, in the presence and hearing of the jury, the following proceedings were had:)
“Mr. Hoyt: May I have the Court’s permission to read Plaintiff’s Exhibit 1 to the jury?
“The Court: You may. It can be either read now or reading reserved with the permission of counsel for the defendant or reading waived. If you want to read it you may read it.
“Mr. Hoyt: I would like to read it your Honor.
‘ ‘ The Court: Proceed. Mr. Hoyt: May I explain the nature of this instrument?
“The Court: No. You may read the instrument. That is all. You may explain it on argument possibly. I wouldn’t say now.
“Mr. Hoyt: Very well. I will read this instrument. (Whereupon Plaintiff’s Exhibit 1 was read to the jury by Mr. Hoyt.) ”
By Mr. Hoyt, county attorney:
“Q. Mr. Coloff, you have heard the instrument that I just read? You heard me read it, did you? A. Yes, sir.
“Q. And do you wish to deny that the John Coloff in that instrument is the same person as yourself? A. No, I don’t.
“Q. It is you? A. That is me.
“Mr. Hoyt: That is all.”
Thus ended the case so far as the taking of testimony was concerned.
The statute states in plain and unambiguous language how a witness who has suffered conviction of a felony may be impeached and it expressly prohibits impeachment “by evidence of particular wrongful acts”. R. C. M. 1947, sec. 93-1901-11.
Here, in direct violation of the above statutory prohibition the trial court, over defendant’s objections, allowed the county attorney to place in evidence and read to the jury particular wrongful acts constituting three separate and distinct offenses under the Federal Bankruptcy Act and particularly with specific wrongful acts constituting violations of section 29, sub. b of that Act. Title 11 U. S. C. A., Bankruptcy, sec. 52, sub. b.
The evidence of particular wrongful acts so improperly placed in evidence in violation of section 93-1901-11, supra, were:
*45 1. That on or about August 29, 1940, near Geraldine, in Chouteau county, Montana, the defendant witness, while a bankrupt, knowingly and fraudulently concealed from his trustee in bankruptcy certain real property belonging to his estate in bankruptcy, namely, (a) the SB % of section 15, T. 23 N. R. 13 E., M. P. M., comprising 160 acres of the value of $650, and (b) the S % of section 22, T. 23 N. R. 13 E., M. P. M., comprising 320 acres of the value of $1,243;
2. That on or about August 29, 1940, at Great Falls, Montana, the defendant witness knowingly and fraudulently concealed from his trustee in bankruptcy certain personal property belonging to his estate in bankruptcy, to-wit: the sum of $260.06 in lawful money of the United States; and
3. That on or about August 29, 1940, at Great Falls in Cascade county, Montana, the defendant witness knowingly and falsely testified and made a false oath in relation to his said bankruptcy proceeding.
In State v. Smith, supra, 57 Mont. 349, 360 , 188 Pac. 644, 646 , wherein this court reversed the judgment of conviction and remanded the cause for a new trial, the county attorney cross-examined the defendant on matters not brought out on his direct examination. There this court said:
* $ though a wide latitude is allowed in the cross-examination of a defendant thus offering himself as a witness, the rules governing cross-examination must still control. * * ®
“But the respondent urges that if not proper for that purpose, the questions were proper for the purpose of impeachment. This is the same contention that was made in the ease of State v. Kanakaris, 54 Mont. 180 , 169 Pac. 42 , and was disposed of by this court in the following language: ‘Upon the cross-examination of the defendant he was asked many questions by the county attorney, the purpose of which was to show that he had been guilty of numerous minor offenses, independent of the crime for which he was being tried. The attorney could have had no other object in view than to impeach the defendant *46 or degrade him in the estimation of the jury, and for either purpose the questions are forbidden by statute. ’ * * *
“Under a pretense of cross-examining a witness, one party to an action cannot make out his ease by witnesses for the other side. [Citing cases.] * * * Here the county attorney made the defendant his own witness to prove facts not touched upon in his case in chief, nor in the direct testimony of the witness. Having done so, he was bound .by the answers of the witness, and the answer that the witness did not make the statement recited to him should have ended the matter. * * *
“In People v. Schmitz, supra [ 7 Cal. App. 330 , 94 Pac. 407, 419 , 15 L. R. A., N. S., 717], the court said: * * * ‘It is of much more importance that every defendant should have a fair and impartial trial under the rules of evidence laid down by the ablest judges and established by centuries of experience than that a defendant in some particular case should be convicted.’
“In People v. Rodriguez, supra [ 134 Cal. 140 , 66 Pac. 174 ], the court said:
“ ‘If a question is put to a witness which is collateral and irrelevant to.the issue, his answer'cannot be contradicted by the party who asked the question, but is conclusive against him.’ People v. McKeller, 53 Cal. 65 ; 1 Greenleaf on Ev. sec. 449. * * *
“If counsel for the state desired to prove other acts of a similar character, in corroboration, he should have introdrrced that evidence in his case in chief. The evidence, and all the evidence tending to show the guilt of the defendant, should have been produced, so that, in all fairness, the defendant be given the opportunity to meet that evidence as a part of his defense. Having failed to do so, and having, for the time being, made the defendant his own witness, he was bound by the answer given, and it was error for the trial court to thereafter permit him to be impeached upon such testimony. [Citing cases.] * * *
“The language employed by Mr. Justice McFarland, in the case of People v. Wells, 100 Cal. 459 , 34 Pac. 1078 , * * * is particularly applicable to cases such as this:
“ ‘It is too much the habit of prosecuting officers to assume *47 beforehand that the defendant is guilty, and then expect to have the established rules of evidence twisted, and all the features of a fair trial distorted, in order to secure a conviction. If a defendant cannot be fairly convicted, he should not be convicted at all; and to hold otherwise would be to provide ways and means for the conviction of the innocent. ’ ’ ’ Compare State v. Smith, 57 Mont. 563 , 190 Pac. 107 , wherein this court reversed the judgment of conviction and remanded the cause for a new trial.
In State v. Garney, Mont., 207 Pac. (2d) 506 , in reversing the judgment of conviction and remanding the case for a new trial, this court recognized that the usual manner of making proof of a prior conviction is to ask the witness if he had theretofore been convicted of a felony and should he deny that he has been so convicted, to then produce a copy of the judgment of conviction. There we also said, “A careful search of the authorities fails to reveal any case in whieh the procedure adopted by the state in this case was followed. Such practice is most questionable and not to be commended.” Compare State v. Black, 1894, 15 Mont. 143, 149 , 38 Pac. 674 ; State v. Shannon, 95 Mont. 280, 287 , 26 Pac. (2d) 360 .
Every person charged with a crime on his plea of not guilty, has an absolute and fundamental right to a fair and impartial trial under and 'pursuant to the law of the government the sovereignty of which he is alleged to have offended and it is a duty resting on the courts, trial and appellate, and the officers thereof, including the state’s attorneys, to see that this most substantial and vital right is upheld and sustained.
In State v. Shannon, supra, this court, in reversing the judgment and remanding the case for a new trial, held that the right of one on trial for crime to have his impeachment by the state confined within the limits prescribed in section 93-1901-11, supra, is a substantial right. Compare State v. Dillon, Mont., 230 Pac. (2d) 764 .
Clearly the violation and denial of such substantial right so *48 accorded the defendant under the law effected a mistrial and constitutes reversible error.
Upon this appeal which is determined wholly upon a question of law it would be highly improper for us to weigh and pass judgment on evidence that a new jury at a new trial must hear, consider and evaluate.
I concur in Mr. Justice Freebourn’s opinion in its entirety.