(3) The waiver involved in the accused's taking the stand permits the usual stages of inquiry to be pursued (ante, § 1866). He may therefore be recalled for further cross-examination under the same conditions as the ordinary witness.6

(4) The waiver involved in the accused's taking the stand is limited to the particular proceeding in which he thus volunteers testimony. His voluntary testimony before a coroner's inquest, or a grand jury, or other preliminary and separate proceeding, is therefore not a waiver for the main trial; nor is

his testimony at a first trial a waiver for a later trial. But it is sometimes held that a present waiver is retroactive, so that his voluntary testimony at the present trial permits inferences to be drawn from his refusal and claim of privilege at a former proceeding.9

(5) When the privilege is justly claimed, by either witness or accused, at such a stage or on such topics as to prevent substantially all cross-examination, the direct testimony may be struck out; for no testimony under any conditions can be received without liability to a substantially full crossexamination.10

§ 2277. Waiver: Cross-examination to Accused's Character in Impeachment, distinguished. When an accused takes the stand, several other questions arise, as to the applicability of principles affecting witnesses in general, and they tend sometimes to be confused with the one just examined.

(1) May the accused be impeached at all? As an accused, his bad moral character is, by universal concession, not to be evidenced by the prosecution unless he first has attempted to show his good character (ante, § 55). But as a witness, his character may be impeached. In which status is he to be regarded? Is his status as an accused to displace his status as a witness? This question, already elsewhere examined on principle (ante, § 890), is universally answered in the negative. The accused, as a witness, is open to impeachment like any other witness. In applying this principle, it will be seen that Courts might employ a form of words similar to those employed in predicating a waiver of his privilege (ante, § 2276).1 The difference in bear

homicide); 1899, Miskimmins v. Shaver, 8 Wyo. 392, 58 Pac. 411 (compounding a felony; the witness' affidavit as informant in the requisition proceedings for the felon, held not a waiver of the privilege for the preliminary examination). 1881, Temple v. Com., 75 Va. 892, 896 (same ruling for one who had testified before the grand jury; but a majority of the Court declined to express an opinion).

8 1896, Georgia R. & B. Co. v. Lybrend, 99 Ga. 421, 27 S. E. 794; 1899, Emery v. State, 101 Wis. 627, 78 N. W. 145.

• Ante, § 2273, note 8.

Of course, a waiver, by volunteering testimony, leaves him responsible for perjury in such testimony: 1899, State v. Turley, 153 Ind. 345, 55 N. E. 30 (examination before grand jury). Compare the cases cited post, § 2281, ad finem, and ante, § 2270.

10 Ante, § 1391.

Where the witness waives by answering, his answers may be afterwards used against him : 1902, State v. Burrell, 27 Mont. 282, 70 Pac. 982; and cases cited ante, §§ 850, 852 (confessious).

1 The authorities are placed here, for convenience of comparison with those in § 2276. Where not otherwise noted, the impeachment was allowed. It is sometimes impossible to ascertain which principle the Court has in mind. Indeed, it is not inconceivable that the Court is sometimes not aware of the distinction. It is to be noted that, so far as impeachment through crossexamination is concerned, the present principle

VOL. IV.

is in some States covered by the statutes noted
ante, § 2277, making the accused examinable
"like any other witness": Alabama: 1896, Bu-
chanan v. State, 109 Ala. 7, 19 So. 410; 1899,
Fields v. State, 121 id. 16, 25 So. 727 (general bad
character); California: 1868, Clark v. Reese, 35
Cal. 89, 96 (personal liberties with a woman);
1870, People v. Reinhart, 39 id. 449 (former con-
viction of sundry offences); 1877, Peeple v.
Chin Mook Sow, 51 id. 597, 601; 1881, People v.
Johnson, 57 id. 571; 1881, People v. Beck, 58
id. 212 (character for veracity); 1888, People v.
Meyer, 75 id. 383, 385, 17 Pac. 431 (prior convic-
tion); 1896, People v. Hickman, 113, id. 86, 45
Pac. 175; 1896, People v. Mayes, ib. 618, 45
Pac. 861; 1897, People v. Arnold, 116 id. 682,
48 Pac. 803 (questions as to former conviction
are allowable, and P. C. § 1093, - dealt with
ante, § 196,- regulating the use of such evi-
dence as affecting sentence, does not prevent its
independent use in this connection); 1897,
People v. Sears, 119 id. 267, 51 Pac. 325 (prior
conviction); 1898, People v. Reed, id.
52 Pac. 835 (character for truth); Colorado!
1882, McKeone v. People, 6 Colo. 346, 347 (prior
self-contradiction); 1900, Herren v. People, 28
id. 33, 62 Pac. 833 (general character for credi-
bility); Connecticut: 1896, State v. Griswold, 67
Conn. 290, 34 Atl. 1047 (questions showing a
prior self-contradiction); Florida: (here the ac-
cused was not a competent witness until 1895;
the following rulings hold him now open to im
peachment); 1896, Lester v. State, 37 Fla. 382,

3159

ing is nevertheless obvious. The question whether the accused may be impeached as a witness involves all forms of proof and all kinds of facts, i. e.

proof by other witnesses, proof of general character, conviction of crime, and the like; while the question of privilege involves merely an inquiry of the accused himself as to a criminal act. Upon such an inquiry there are involved both questions at once, and a settlement of the question of privilege will usually involve incidentally the settlement of the other question. But upon all other inquiries the question of privilege is not involved, and the question of impeachment in general is alone involved and settled.2

(2) By what kind of character may the accused be impeached? As a witness, only by his character for veracity, in most jurisdictions, but in others by his general bad character; as an accused, not at all, until he has himself attempted to prove good character for the trait relevant in the charge, and then the prosecution may deny this in rebuttal. As a witness, then, he is subject to proof which would not be receivable against him as an accused except on certain conditions.3

(3) As an accused, the party may offer his good character in support, but this character must be for the trait relevant to the charge (ante, §§ 56, 59). As a witness, however, the party may not offer his good character until impeachment (ante, § 1104), and then (in most jurisdictions) only his character for veracity. Thus, a further practical distinction may arise, in consequence of his double status (ante, § 61).

(4) As a witness, the accused is subject to cross-examination to specific acts of misconduct impeaching his character for veracity. The distinction. between the propriety of such inquiries and the privilege not to answer them has been already considered (ante, §§ 2268, 2276). It may also here be noted that in some jurisdictions 5 a question has occasionally been raised whether, for an accused, there should be stricter limits to this cross-examination than for an ordinary witness.6

son, 26 S. C. 117, 120, 1 S. E. 443 (character for
truth); 1890, State v. Wyse, 33 id. 582, 591, 12
S. E. 556 (contradiction); 1890, State v. Merri-
man, 34 id. 16, 39, 12 S. E. 619 (cross-examina-
tion to character); 1892, State v. Turner, 36 id.
534, 543, 15 S. E. 602 (similar); 1900, State v.
Mitchell, 56 id. 524, 35 S. E. 210 (liquor offence;
questions as to former indictments and fines for
liquor offences, allowed); Tennessee: 1887, Peck
v. State, 86 Tenn. 259, 263, 6 S. W. 389; 1892,
Hill. State, 91 id. 521, 524, 19 S. W. 674 (the
accused is "subject to impeachment as any other
witness would have been"); Teras: 1892, Bell
v. State, 31 Tex. Cr. 276, 20 S. W. 549 (in gen-
eral); 1896, Morales v. State, 36 id. 234, 245, 36
S. W. 435, 846 (but the statutory restrictions as
to using his confessions, ante, § 851, still apply
to questions about them on cross-examination;
and thus a cross-examination to the accused's
admission or self-contradictions is practically
prevented); 1898, Holley v. State, 39 id. 301, 46
S. W. 39; 1900, Walton v. State, 41 id. 454, 55
S. W. 566 (like Morales v. State); 1900, Dickey v.
State, id., 56 S. W. 627 (cross-examination
to character); 1901, Wooley v. State,
- id-
64 S. W. 1054 (allowing cross-examination to
self-contradictions); Utah: 1894, People v. Lar-

sen, 10 Utah 143, 37 Pac. 258 (cross-examination to character); Wisconsin: 1881, Yanke v. State, 51 Wis. 464, 467, 8 N. W. 276 (the accused subjects himself "to the same rules of cross-examination applicable to other witnesses.")

2 In People v. Tice, N. Y., cited ante, § 2276, the distinction is brought out.

3 The rule for witnesses' character has been considered ante, § 923; its application to the accused as a witness is dealt with ante, § 61. Many of the rulings cited in the §§ 2276 and 2277 are concerned also with these questions.

4 See also the opinions in South Bend ". Hardy, Ind., cited ante, § 2270, and in the Brown and Brandon cases, N. Y., cited ante, § 2276.

5 Notably in Kentucky and New York.

6 This question has already been considered in connection with the general principle as to cross-examination to misconduct (ante, §§ 981987); but some of the rulings already cited in this section (§ 2277) and in § 2276 do not always keep in mind the distinction between those three principles, namely, impeaching an accused witness in general (supra, par. 1), impeaching him by cross-examination to misconduct (ante, §987), and privileging him not to answer (ante, § 2276).

(5) As a witness, the accused may be impeached by proof of conviction of another crime (ante, § 985). But whether this proof may be made on his own cross-examination, without producing a copy of the record of conviction, involves another principle (ante, § 1270).

§ 2278. Same: Other Principles affecting the Accused's Cross-examination and Impeachment, distinguished (Cross-examining to One's Own Case, etc.). (1) By a rule intended originally to prescribe merely the order of presenting evidence, it is in a majority of jurisdictions not permitted to put in one's own case on the cross-examination of the opponent's witnesses (ante, §§ 1885-1891), or, in the usual phrase, the cross-examination must be confined, in its material, to the subject of the direct examination. This rule, in its effect upon the examination of the accused, is palpably unfair to the prosecution; for, since the prosecution would presumably have neither the right nor the desire to recall the accused as its own witness, that which was intended merely as a prohibition against obtaining certain facts on his crossexamination becomes in effect a prohibition against obtaining them from him at all. The poor policy and faulty reasoning of such a result has already been sufficiently examined (ante, § 1887). It is here, however, worth while to note that this rule, as enshrined in many States by statute, is by some Courts interpreted as if it were a rule affecting the waiver of the privilege against self-crimination.1 The two have of course no connection; although, if the former rule forbids questions which go beyond the subject of the direct examination, the waiver is also incidentally thus limited, for the simple reason that there are no questions for the accused to answer, and the result is the same. But the practical error of treating the two questions as one (an error not uncommon under such statutes) is seen in the case of questions directed merely to facts impeaching character. Here it is plain that the effect of the first rule is not to exclude such inquiries (ante, § 1891); for there would otherwise never be any opportunity to ask them. But this leaves the question of privilege and its waiver still undetermined, and resort must be had for that purpose to the appropriate principle (ante, § 2276). In a few jurisdictions, however, this distinction seems irrevocably buried in the decisions interpreting the statute.2

(2) The accused as a witness may be discredited by the biassed position which he occupies as an interested party, i. e. the jury may consider that circumstance in weighing his credit (ante, §968). This is in no way connected with the doctrine of waiver; yet the possibilities of misunderstanding these various principles seem unlimited, and this sort of confusion has sometimes occurred in rulings dealing with the accused as an impeachable witness (ante, § 2277, par. 1).

§ 2279. Expurgation of Criminality: (a) by Acquittal; (b) by Lapse of The law is concerned with its own penalties only. Legal criminality

Time.

1 This has been noticed in dealing with the waiver, in § 2276. The distinction is pointed out by McKee, J., diss., in People v. O'Brien, Cal., cited ante, § 2276.

2 The rulings in §§ 1890 and 2276 should be compared.