of being produced, but must be proved by the document itself. But if it be shown that it is lost, destroyed, or in possession of the prisoner who has had notice to produce it, other evidence may be given of its contents. (a) Another matter to be noticed is the hostility of one's own witness. It is a rule that a counsel can not discredit hie own witness; it is also, as we have seen, a rule that leading questions may not be put in examination-in-chief. But it is provided by statute(b) that although a party producing a witness is not allowed to impeach his credit by general evidence of bad character, he may, in case the witness, in the opinion of the judge, proves adverse (i. e., hostile), contradict him by other evidence, or, by leave of the judge, prove that at other times he has made a statement inconsistent with his present testimony; but before such lastmentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. So, also, if, in the opinion of the judge, the witness is keeping back some of the truth, in order to favor the prisoner or otherwise, he may allow the examining counsel to ask leading questions, and generally to treat the witness as hostile. Cross-examination.-Inasmuch as a witness is supposed to be inclined to favor the party calling him, greater powers are given to the cross-examining counsel. He may ask leading questions, and in this way remind the witness of any thing which may tend to help the cause of the opposite party. But if the witness proves any thing favorable to the cross-examiner, the fact that the evidence was procured by leading questions will, of course, diminish its value. The counsel will not, however, be allowed to put in the witness' mouth the very words he is to echo back again. (c) In cross-examination the questions will be of two classes: (a.) Those which tend directly to refute or explain what has been given in evidence in the examination. (a) v. p. (b) 28 Vict., c. 18, § 3. in-chief; (b.) Those whose object is to affect the credit of the witness. It is not usual to cross-examine witnesses to character except the counsel cross-examining has some distinct charge on which to cross-examine them.(d) It is needless to add that a cross-examining counsel should avoid asking questions, the answer to which, if unfavorable, would be conclusive against him. And he should always remember that the story of the witness, if true, will be confirmed the more he is questioned about it; and this although there may be slight discrepancies on immaterial points. [There is a diversity of practice as to the proper limit of cross-examination. In England, when one party introduces a witness, has him sworn, and asks him a single question, however unimportant, he thereby makes him a witness in the case, and the other party has the right to cross-examine him upon all matters pertinent to the case.(1) And if the prosecutor puts upon the stand a witness whose name is indorsed as a witness on the indictment, or if the prosecutor fails to call any such witness, the accused may have such witness called and sworn as a witness for the prosecution, and may cross-examine him upon the whole case.(2) The rule that the cross-examination of a witness is not restricted to the subject-matter of the direct examination, but extends to the whole case, is followed in New York,(3) Alabama,(4) and Missouri, (5) and, subject to such restrictions as the court may impose, in Massachusetts. (6) (d) R. v. Hodgkins, 7 C. & P. 298. (1) Taylor on Ev., 1289, and cases there cited. (2) Rex v. Simmons, C. & P. 84; Rex v. Beezlen, 4 C. & P. 220, Rex v. Bodle, 6 C. & P. 186, Reg. v. Vincent, 9 C. & P. 91; Reg. v. Bailey, 1 Cox C. C. 191. (3) Eden v. Varick, 7 Cow. 238, affirmed 2 Wend. 166; Fulton Bank v. Stafford, 2 Wend. 483. (4) Fralick v. Presley, 29 Ala. 457; Kelley v. Brooks, 25 Ala. 523. (5) State v. Sayers, 58 Mo. 585; and see Squire v. Wright. 1 St. Louis Court of Appeals, 172. (6) Webster v. Lee, 5 Mass. 334; Moody v. Russell, 17 Pick. 490; Commonwealth v. Lannan, 13 Allen, 563; Commonwealth v. Morgan, 107 Mass. 199; Commonwealth v. Lyden, 113 Mass. 452; Wallace v Taunton St. R. R. Co., 119 Mass. 91. In the Supreme Court of the United States, "the rule has been long settled that the cross-examination of a witness must be limited to matters stated in his direct examination." If the adverse party desires to examine him as to other matters, he must do so by calling the witness to the stand in the subsequent progress of the cause.(1) The rule of the Supreme Court of the United States is followed in New Jersey, (2) Indiana,(3) Illinois,(4) and Iowa.(5) The same rule is followed in Pennsylvania;(6) but it is explained that "the matter stated in the direct examination" is not to be taken in a narrow sense. "The signature of a subscribing witness to an ordinary instrument of writing implies nothing more than that the instrument was signed by the person whose deed or act it purports to be. It is not so in the case of a subscribing witness to a will. His attestation is an assertion, not only that the will was signed by the testator, but of the further fact that the testator was of sound mind when he executed it." Hence, when, upon an issue of devisavit vel non, the propounder of the will introduced an attesting witness to testify simply to the execution of the will, the contestant had the right to cross-examine the witness as to the sanity of the testator.(7) This rule has received a further explanation in Michigan. "It is the tendency of the direct examination which determines the subject of it, as a test for cross-examination; it is that essential or ultimate fact in the plaintiff's case which the direct examination tended to prove, which determines the logical limits of the cross-examination, and not merely the particular minor facts and circumstances tending to the proof of that fact. When two or more main facts are essen (1) Houghton v. Jones, 1 Wall. 702. (2) Donelly v. State, 2 Dutcher (26 N. J. Law), 463, see p. 494. (3) City of Aurora v. Cobb, 21 Ind. 492, see pp. 511, 512. (4) Stafford v. Fargo, 35 Ill. 481; Bell v. Prewitt, 62 Ill. 361; Drohn Brewer, 77 Ill. 280. (5) Cooley v. State, 4 Iowa, 477; Wilhelmi v. Leonard, 13 Iowa, 330 (6) Ellmaker v. Buckley, 16 Serg. & R. 77; Helser v. McGrath, 59 Penn. St. 531. (7) Egbert v. Egbert, 78 Penn. St. 326. tial to plaintiff's prima facie case, such as the title of the plaintiff, and conversion by defendant in trover, and the direct examination has been confined to matters tending only to the proof of one of those main facts, the defendaut should not be allowed to cross-examine as to the other."(1) In Ohio, "the right of cross-examination is not to be limited by the particular facts disclosed in the examinationin-chief, but may be extended to whatever the party calling the witness is required to establish to make out and sustain his cause of action or his defense. Thus, a witness of the plaintiff may be cross-examined by the defeudant touching all matters which it is competent for the plaintiff to prove under the issue, in order to entitle him to recover. And, on the other hand, the plaintiff may cross-examine the defendant's witnesses to all maters which the defendant may prove under the issue, in order to sustain his defense." "But a defendant has no right to go into the distinct matter of his defense, by way of avoidance, before the plaintiff has rested."(2) The rule in Mississippi is the same as in Ohio.(3) In California, the same rule as in Ohio was once adopted. "If the defendant sets up a defense not necessarily involved in the denial of the plaintiff's case, but consisting of new matter, the defendant must wait until after his opening, before he offers proof of this new matter."(4) But in later cases the rule of the Supreme Court of the United States is followed.(5)] Re-examination.-The object of the re-examination, if it be judged expedient to have recourse to it, is to inquire into and explain what has transpired on cross-examination. But it must be strictly confined to such matter; the re-examiner may not ask questions which he might and ought to have put on examination-in-chief. (1) Campau v. Dewey, 9 Mich. 381, see p. 419; and see O'Donnell v. Segar, 25 Mich. 367. (2) Legg v. Drake, 1 Ohio St. 286, see p. 292. (3) Mask et al. v. State, 32 Miss. 405, see p. 427. (4) Jackson v. Feather River Water Co., 14 Cal. 18. (5) Aitken v. Mendenhall et al., 25 Cal. 212; People v. Miller, 33 Cal. 99. Any further questions after re-examination must be put through the judge; also through him any questions which occur to counsel after they have finished their examination or cross-examination.(e) [For good cause shown, the judge may, in his discretion, permit the party who called the witness, after re-examination, to examine him in chief on new matter. In such case, the other party has the right to cross-examine on such new matter. In the same way it is in the discretion of the court to permit a witness to be recalled, in order that he may be examined, cross-examined, or re-examined by the party recalling him; or to permit the witness on his own motion to return to the stand to correct or explain his testimony. A witness may also be recalled at the request of the jury.(1)] If any improper question (e. g., irrelevant or leading) in examination-in-chief be put, the counsel on the other side should immediately interpose and object to it before the witness has time to answer it. Though in the case of a leading question this will often be ineffectual, inasmuch as the mischief has been done by the suggestion being made. The counsel in the same way should interpose if parol evidence is given when a document should be produced. (e) v. p. 334. (1) For authorities, see notes to 88 572, 573, 574. Wharton on Evi dence. |