In the case of Morey v. State,
"We think, therefore, the question is sufficiently presented, whether the State having offered evidence of inculpatory statements made by the defendant, may the defendant on cross-examination show other exculpatory statements or statements deemed exculpatory made in the same conversation or at the same time in reference to the same subject matter? This Court has decided the identical question in the affirmative." (Citing several authorities.)
One of the authorities cited in the Morey case was the case of Thalheim v. State,
"The defendant is entitled to have before the jury all that was said upon the subject upon the particular occasion, whether prejudicial or beneficial to him. The State having opened the door by proving a part of the conversation, it cannot close it upon the defendant so that he cannot offer the other part of the conversation which relates to the same *Page 801 subject matter. The whole conversation should be before the jury and they should determine what weight and effect should be given to the whole conversation."
It will be noted that when the State has proved a part of a conversation, the defendant can offer the other part of the conversation "which relates to the same subject matter."
In this case the State produced as a witness one Fred Williams who testified from shorthand notes, or a transcript of same in typewritten form, made by him, as to the defendant's statement, which consisted of an examination made of the plaintiff in error by the then assistant State attorney shortly after plaintiff in error's arrest. At the conclusion of the examination of such witness by the State, plaintiff in error attempted to cross examine the witness as to another portion of the statement which had not been introduced in evidence by the State. The State objected and the court sustained the objection. It appears that the only questions and answers appearing in the statement taken from plaintiff in error which his counsel sought to bring out on cross examination were with reference to the age of the plaintiff in error. The State objected on the ground that this question was not in cross of anything asked on the direct examination, and was a self-serving declaration and had nothing to do with the guilt or innocence of the defendant. The court sustained the objection, stating that the question of age was a matter of defense and that the questions propounded were not in cross.
In the course of these proceedings with reference to this matter the State offered to introduce the entire written statement taken from the defendant, but the defendant objected to this upon the ground that a large part of the statement was entirely irrelevant and immaterial, and also objected to the State attorney making such offer in the presence of the jury. *Page 802
We think that the defendant, plaintiff in error here, had a right to have the entire statement submitted to the jury had he so requested. However, his counsel objected to the introduction of the entire statement. It is not contended here that the defendant's age, as shown by what he had said in his previous statement, was such as to relieve him of criminal liability, and there is other evidence in the record which indicates that he was about twenty-two years of age at the time of the offense charged.
The State, having introduced certain portions of the statement, the defendant had the right to have the whole statement submitted to the jury, but he had no right, as I see it, to take out isolated statements, not relating to the subject matter of the direct examination, and hence not in cross. It appears therefore that there was no violation by the court of the rule laid down in the Morey and Thalheim cases,supra, especially in view of the offer of the State attorney to introduce the entire statement in evidence.
The only question in this case which gives me any concern is whether the trial court should have granted a new trial on the ground of the alleged insufficiency of the evidence, but in view of all the evidence, including the evidence of flight, I am not convinced that the trial court committed error in overruling the motion for new trial.
