Epitomized Opinion

The original action was in the Cuyahoga Common Pleas by the State against Josephine Warren, and Margaret Marvin for grand larceny. It appears that the State in rebuttal offered substantial testimony to the effect that 3 months before the commission of the offense named in the indictment, Warren and Marvin were in the store in Cleveland where the larceny was committed. The apparent purpose of this rebuttal testimony was to contradict and impeach the defendants; because testimony on cross-examination showed that they had not been in Cleveland previous to the date of commission of the crime and that defendants were in the store on the date of commission of the crime was not in the issue.

Further, certain exhibits not offered in evidence and known as the subject matter of the larceny were given to the jury on departure from the court room for deliberation and retained by them during their consideration of the case. Warren and Marvin seek to reverse the verdict of guilty rendered in the lower court, based on the above grounds.

The Court of Appeals held:

1. It is well settled that impeachment will not lie even in a criminal case upon a matter inmaterial to the issue.

2. Such rebuttal testimony affecting the credibility of the witnesses, was prejudical to them, and as to being incompetent, admits no doubt.

Judgment of Common Pleas reversed.