State v. Kellogg

(dissenting) — The majority opinion is based upon a misconception of the law as applied to the involved situation. I subscribe to the rule relied upon to sustain the *671opinion: that a party who is surprised at the prejudicial testimony of his own witness may, after laying the proper foundation, impeach the witness. Such rule has no application here, however, because the witness sought to he impeached had given no testimony prejudicial to the appellant. The lack of prejudicial testimony has ingrafted an exception upon the rule permitting the impeachment of one’s own witness by variant prior…