would be abundantly justified in refusing it admission. Gaines v. Com. 50 Pa. 319; Dozier v. Jerman, 30 Mo. 216, 220; Huntsman v. Nichols, 116 Mass. 521; Morse v. Potter, 4 Gray, 292; Marshall v. Davies, 58 How. Pr. 231.

The language of the New York court of appeals is a practical reaffirmance of the last paragraph. "The extent of the cross-examination upon matters immaterial to the issue, is in the discretion of the judge. Inquiries on irrelevant topics to discredit the witness, and to what extent this may be pursued-are matters committed to the sound discretion of the trial court; and this is the rule as regards the right of inquiry into all matters wholly collateral and immaterial to the issue. The court may permit disparaging inquiries on matters irrelevant to the issue, where the ends of justice demand it, and may exclude them without infringing upon any legal right af the parties; and the exercise of this discretion is not the subject of review, except in cases of plain abuse and injustice." La Beau v. People, 34 N. Y. 230.

Any evidence in rebuttal that could be fairly considered admissible in a civil action is equally competent in a criminal case.

This does not imply that a party is at liberty to swell the volume of his former testimony, but rather that he must meet the evidence afforded by new matter; by evidence not already in the case that will have a tendency to neutralize the effect of the adversary's proof. As a rule any evidence that rebuts either the main issue or any minor inquiry, is pertinent. Com. v. Tinkham, 14 Gray, 12; Atkins v. State, 16 Ark. 568; Spivey v. State, 26 Ala. 90; Lightfoot v. People, 16 Mich. 507; Coleman v. People, 55 N. Y. 81; State v. Shermer, 55 Mo. 83; Reid v. State, 50 Ga. 556; People v. Austin, 1 Park. Crim. Rep. 154; Crawford v. State, 12 Ga. 142.

The rule exemplified by the authorities is this: that whenever the existence of a purpose, or state of mind, is the subject of inquiry, explanatory conduct and accompanying expressions of the party himself, or of other persons to him or in his presence, may be shown by proof. Thus, in the case of Hunter v. State, 40 N. J. L. 495, it was declared by the court of errors that the declarations of a third party explanatory of an act that was part of the res gesta were not hearsay but were legitimate evidence.

In the recent case of People v. Dowling, 84 N. Y. 478, which was a prosecution for receiving stolen goods, after the state had proved the receipt of the goods, the defendant, in order to rebut

the inference of guilty knowledge on his part, offered to show what statement the thief had made to him at the time he purchased the property, with respect to the source from which he had got it; and such statements were held competent evidence by the court of appeals.

An application of the same principle appears in the case of Rex v. Whitehead, 1 Car. & P. 67, and reference to other like cases will be found in the text-books.

§ 219. The Cross-examination. The privilege of cross-examination is limited only to the discretion of the judge. Peake in his treatise on Evidence, says: "It is impossible to lay down a rule on this subject applicable to all cases, and therefore it must be left wholly to the discretion of the judge, who, in general, is guided by the demeanor of the witness, and the situation he stands in, with relation to the parties." (pp. 189, 190). Pothier, in his treatise on Obligations says: "The cross-examination of witnesses adduced by the opposite party, is a subject of the utmost nicety, with respect both to the conduct of the advocate and the discrimination of those who are to form a judgment. The abuse to which this procedure is liable are the subject of very frequent complaint, but it would be absolutely impossible, by any but general rules, to apply a preventive to these abuses, without destroying the liberty upon which the benefits (above adverted to) essentially depend; and all that can be effected by the interposition of the court, is a discouragement of any virulence towards the witness, which is not justified by the nature of the cause.

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Whatever can elicit the actual dispositions of the witness with respect to the event, whatever can detect the operation of a concerted plan of testimony, or bring into light the incidental facts and circumstances that the witness may be supposed to have suppressed; in short, whatever may be expected fairly to promote the real manifestation of the merits of the cause is not only justifiable, but meritorious." Vol. 2, pp. 228, 229.

So, as a general rule the range and extent of such an examination is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character. People v. Brown, 72 N. Y. 571; Ryan v. People, 79 N. Y. 594; People v. Crapo, 76 N. Y. 290, 32 Am. Rep. 302. If this limitation is not disregarded we can

only interfere where there has been an abuse of discretion. Third Great Western Turnp. R. Co. v. Loomis, 32 N. Y. 127; La Beau v. People, 34 N. Y. 230; People v. Casey, 72 N. Y. 393; People v. Oyer & Terminer Ct. 83 N. Y. 436.

The opposite party may cross-examine the witness to any facts stated in his direct examination, or connected therewith, and in so doing may put leading questions, but if he examines him as to other matters, such examination is to be subject to the same rules as a direct examination.

And the court may in all instances, limit the time allowed for the cross-examination of witnesses (Lynch v. State, 9 Ind. 541), or the number of witnesses on either side. Mergentheim v. State, 107 Ind. 567. So, too, the court may at all times interpose its authority to regulate the manner and substance of the examination, to prevent the intimidation of witnesses or the evasiveness of their replies or any matters legitimately within the scope redirect, cross or otherwise. State v. Scott, 80 N. C. 365.

a. Rule as to Hostile Witnesses.-Where it appears that a witness is hostile to the party calling him or is reluctant and evasive in his replies, leading questions although generally excluded may be allowed. This too is a matter largely within the sphere of the court's discretion. Klock v. State, 60 Wis. 574. In the language of a well known writer, "the judge may, in his discretion, allow leading questions to be put, on direct or redirect examination; where the witness is hostile or reluctant, or is in the interest of the other party, or so youthful, ignorant, or infirm as to require the attention to be led; or where his memory has been exhausted without stating some particular, such as a name, which cannot be significantly pointed out by a general inquiry." Abbott, Trial Brief, 95.

Instances frequently arise, particularly on the part of the prosecution, where the witness is evidently reluctant and the state's attorney is burdened with his presence chiefly because he may have been the only eyewitness of the alleged offense. In such cases the trial court should regard the witness as hostile and indulge the utmost latitude in his examination. It is quite time that it was understood that the criminal classes of this country are not to be emancipated from all the effects of their vicious courses merely because one of their own ilk is a witness for the state and as such attempts by evasion and subterfuge to further

their own interests by placing a stumbling block in the path of the state's attorney. The wide discretion accorded the trial court in the matter of the cross-examination of witnesses will correct any tendency to jeopardize the people's case.

It is competent to ask a witness on cross-examination, whether he has been in jail or state prison, and how much of his life he has passed in such places, with a view to impair his credibility. The extent of such cross-examination rests somewhat in the discretion of the court, but the discretion should be liberally exercised. Real v. People, 42 N. Y. 270.

b. Confined to Relevant Facts.-A witness cannot be asked, upon cross-examination, questions which are not in any way relevant to the matters in issue; neither is a question allowed to be asked which, if answered affirmatively, would be wholly irrelevant to the issue; for the purpose of discrediting the witness if he answers in the negative, by calling other witnesses to disprove what he says; but this subject will perhaps be more conveniently discussed in a subsequent section.

Counsel upon cross-examination cannot assume that the witness has made an assertion in his examination in chief, which was not in fact made, or put a question which assumes a fact not in proof. Russell, Crimes, chap. 5, § 2.

In Wentworth v. Buhler, 3 E. D. Smith, 309, a point was made that the witness, on cross-examination, had been asked irrelevant questions. Woodruff, J., says: "True, the evidence was not relevant to the issue, but there is no test for a cross-examination, if it was relevant to the credibility of the witness or any collateral matter opened by the adverse party. The latitude given to cross-examination is such, moreover, that we must be fully satisfied that injustice is caused by it, before we would reverse a judgment because on cross-examination a purely irrelevant question was allowed." See Plato v. Kelly, 16 Abb. Pr. 188; Third Great Western Turnp. R. Co. v. Loomis, 32 N. Y. 127; Hardy v. Norton, 66 Barb. 527.

The examination, both direct and cross, must be confined to facts relevant to the issue, but in cross-examination the witness need not be confined entirely to the facts to which he testified to the chief, and in the re-direct examination, he is only allowed to explain such matters as were first elicited upon the cross-examination. It is hardly necessary to state that where new matter is by

express sanction of the court introduced after the direct examination by either party, the opposite party is privileged to cross-examine upon the subject of the new matter.

c. When Party Makes Witness his Own.-By going into a new matter not involved in the direct examination, the party cross-examining, makes the witness his own so far as concerns his response to the questions regarding that matter. Houghton v. Jones, 68 U. S. 1 Wall. 702, 17 L. ed. 503; Hughes v. Westmoreland Coal Co. 104 Pa. 207; Donnelly v. State, 26 N. J. L. 463, 601; Aurora v. Cobb, 21 Ind. 492; Hurlbut v. Meeker, 104 Ill. 541; Austin v. State, 14 Ark. 555; People v. Miller, 33 Cal. 99; State v. Smith, 49 Conn. 376; State v. Swayze, 30 La. Ann. 1323.

d. Rule as to Collateral Matters.-Where collateral matter has been introduced into the cause by the party whose witness is on the stand in the testimony in chief-evidence not exactly pertinent to the issue on trial-whether the other side is bound to treat that as his own collateral matter, as the collateral matter of the cross-examining party. The cross-examiner may ask questions which are collateral, and may do this very extensively, but he must take the answer of the witness as true. If he is not satisfied with the answer, nevertheless he is bound by it, because he has chosen to ask the question that really does not belong to the case. But where the party whose witness is on the stand introduces collateral matter, and his witness, I will presume, testifies falsely in regard to that collateral matter, whether the other side may not contradict that witness in regard to that collateral matter, is another question. Wylie, Justice, in United States v. Dorsey, Star Route Trial, p. 3832.

Digesting the statement of the court with reference to this matter, it appears that answers to questions regarding side issues. or collateral matters are not open to contradiction; but where such matters are brought out by the examination in chief, the crossexaminer may endeavor to contradict him.

It should be remembered that ordinarily a witness can testify only to those facts which he knows of his own knowledge except in those cases in which his opinion or the declaration or conduct of others is relevant.

When a witness is cross-examined, he may be asked any question which tends:

(1) To test his accuracy, veracity, or credibility; or