justice, indeed every one who has given any attention to the trial of causes, has seen how efficacious a cross-examination is, in eliciting truth, in separating hearsay from knowledge, and in defeating the most carefully prepared schemes of perjury and fraud. A right so valuable to parties should not be taken away or impaired. On the contrary, it should be held sound and guarded against all attempts, open or covert, to limit or restrict it. Like most other rights of litigants, it may be waived or lost by laches. But to deprive a party of it, the waiver or the laches must be clearly shown. It will not do to refuse a party the right of cross-examination upon doubtful evidence of an intention on his part to waive or surrender it. Cole v. People, 2 Lans. 370.

"Cross-examination," says Christiancy, Ch. J., "is the greatest test of knowledge, as well as the veracity of the witness. The right to pursue it may sometimes be abused; and when it is sought to be abused, as when counsel insists upon going over the same ground again and again, or where it is apparent that the witness has already fully answered without any appearance of evasion, and it is evident the counsel is merely pushing the witness for the sake of annoyance, or for any illegitimate purpose,-it is competent for the court, in its discretion, to put an end to it."

The advantages of the viva voce examination are thus outlined by Sir John Coleridge: "The most careful note must often fail to convey the evidence fully in some of its most important elements, viz: those for which the open oral examination of the witness in presence of prisoner, judge and jury, is so justly prized. It cannot give the look or manner of the witness; his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; it cannot give the manner of the prisoner, when that has been important, upon the statement of anything of particular moment. It is, in short, or it may be, the dead body of the evidence, without its spirit, which is supplied when given open or orally, by the ear and eye of those who receive it." Reg. v. Bertrand, L. R. 1 P. C. 535, 10 Cox, C. C.

625.

§ 221. Extent of Cross-examination.-It was ruled at an early day in the supreme court of Missouri that when one party introduced a witness and examined him, the adverse party could cross-examine the witness as to all matters involved in the case, no matter how formal or unimportant the examination in chief

may have been. Page v. Kankey, 6 Mo. 433; St. Louis & I. M. R. Co. v. Silver, 56 Mo. 266. The authorities are in conflict on this subject and may be found collated by Professor Greenleaf. 1 Greenl. Ev. § 445; State v. Brady, 87 Mo. 142.

And where a witness, cross-examined in part, without fault of the party who summoned him, disappears, so that his cross-examination cannot be completed, it is not the right of the crossexamining party to have the whole evidence stricken out. Burden v. Pratt (Sup. Ct. N. Y.) 1 Thomp. & C. 554, 8 Alb. L. J. 382.

Whether, when a party is once entitled to cross-examine a witness, his right continues through all the subsequent stages of the cause, so that if the party should afterwards recall the same witness, to prove a part of his own case, he may interrogate him by leading questions, and treat him as the witness of the party who first adduced him, is also a question upon which different opinions have been held.

It is legitimate cross-examination to interrogate an opposing witness as to his relations to the parties and the litigation, his motives, interests, inclinations, and prejudices, his means of obtaining correct and certain knowledge of the facts to which he testifies, and the manner in which he has used those means. 1 Greenl. Ev. § 446. Such testimony is not collateral and irrelevant to the issue, and the party calling it out, if it be adverse to him, may contradict it by other testimony for the purpose of dis crediting the witness. All this is quite rudimentary in the law of evidence. Schuster v. State, 80 Wis. 107.

From the necessity of the case, it is difficult, perhaps impossible to lay down any precise or definite rule fixing the limits of such cross-examination. Necessarily, it must be left to the sound discretion of the trial court, subject only to review for its abuse.

The limit of cross-examination of ordinary witnesses is not marked with any great accuracy or distinctness. Questions are frequently allowed which strictly do not refer to matters about which the witnesses testified in chief. Great latitude is given trial courts in passing upon the admissibility of such questions; and their discretion is rarely interfered with by appellate courts. It must be remembered that the privilege given a defendant in a criminal case to testify for himself is by no means an unmixed blessing. There are cases where an innocent defendant could do

himself no good, and might do himself harm, by going on the witness stand. But his refusal to do so will be construed to his injury by the average juryman, in spite of any instruction the court may give on the subject. And then, if he does testify, his temptation to commit perjury will be considered so great that he will rarely be credited with telling the truth. But if he cannot go upon the stand for the mere purpose of stating a fact which will explain some suspicious circumstance, without being forced, upon cross-examination, to lay bare the whole history of his life, he had better keep away from it,-unless, indeed, instead of having a human character, he is a miraculous bundle of virtues, with no vice, and with nothing which men call a vice. People v. Meyer, 75 Cal. 383.

In Prince v. Samo, 7 Ad. & El. 627, the court says that a witness of the plaintiff cross-examined as to declarations of the plaintiff in a particular conversation cannot be re-examined as to unconnected assertions of the plaintiff in the same conversation, although connected with the subject of the suit. It must not, therefore, be assumed that cross-examination in part of a conversation necessarily lets in proof of the whole of it. This case qualifies the language of the court in The Queen's Case, 2 Brod. & B. 297, where Abbott, Ch. J., says: "I think the counsel has a right on re-examination to ask all questions which may be proper to draw out an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they are in themselves doubtful, and also of the motive by which the witness was induced to use these expressions; but he has no right to go further and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. I distinguish," he says, "between a conversation with a party to a suit, criminal or civil, and a conversation with a third person." See State v. Gedicke, 43 N. J. L. 86.

The formula we deduce from a critical examination of the best considered decisions is substantially this: upon the cross-examination it is discretionary with the trial court to allow inquiries into collateral matters which have a tendency to affect the credibility of a witness, provided, however, that the responses of the witness are conclusive and are not subject to contradiction; again the prevailing view in most jurisdictions restricts the cross-examination to such matters as were elicited upon the examination in chief and

should not wander beyond this. Here, however, we encounter the discretion of the court which will exercise a salutary influence upon any hardships the rule might otherwise impose in special instances. State v. Turner, 76 Mo. 350; State v. Saunders, 14 Or. 300; State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374; State v. McLaughlin, 76 Mo. 320; State v. Douglass, 81 Mo. 231; State v. Chamberlain, 89 Mo. 129; State v. Lurch, 12 Or. 99; State v. Porter, 75 Mo. 171.

The Federal courts adopt the rule that the cross-examination must be limited to the matters touched upon in the direct examination, and where it becomes expedient to elicit other evidence the witness may be recalled at a subsequent stage of the trial. The party so recalling a witness makes such witness his own. This rule obtains in Pennsylvania, Indiana, Iowa, Illinois, Nebraska, and some other states. In New York the wide discretion accorded the trial court as to the order of proof and the admission of evidence practically annihilates the restriction created by the rule, and this view of the matter is gradually extending. United States v. Mullaney, 32 Fed. Rep. 370.

§ 222. When Answer is Conclusive.-It is among the familiar incidents of a criminal prosecution that where the accused takes the stand as a witness in his own behalf, the state's attorney will seek to show the commission of previous offenses; and on his denial of their commission, it frequently happens that the prosecution seek to prove the untruthfulness of his statement by the introduction of evidence tending to establish the perpetration of the crime denied. Such evidence is wholly inadmissible. The principle which governs is this: The answers of a witness to questions which tend to discredit him are conclusive if such questions relate to collateral matters.

"Whether he participated in the commission of the other offense was not a material inquiry on the trial of this indictment. It was simply collateral, and the object of it was by cross-examination to show such preceding criminal conduct on the part of the defendant as would lead the jury to disbelieve the witness, or to reduce the effect they might otherwise be inclined to give to his testimony. When that course of cross-examination has been followed, the law does not permit the party adopting it to introduce further and independent evidence to prove that the denial of the witness was false. When that is the sole effect to be given to the evidence,

the party cross-examining the witness is concluded by his answer. The inquiry cannot be further extended by producing testimony of a contradictory nature. The rule upon this subject has frequently been made a matter of consideration by the courts, and it is now well established that to entitle the party interrogating the witness in this manner, by way of cross-examination, to introduce evidence to contradict his statements, the cross-examination must be directed to a material inquiry in the case, or to evidence establishing a hostile or unfriendly bias against the party in the mind of the witness. Carpenter v. Ward, 30 N. Y. 243; Plato v. Reynolds, 27 N. Y. 586; First Baptist Church v. Brooklyn Fire Ins. Co. 28 N. Y. 153; Chapman v. Brooks, 31 N. Y. 75; Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492; Schultz v. Third Ave. R. Co. 89 N. Y. 248.

If, however, the false answer is given with reference to a matter directly relevant to the issue, the cross-examiner is by no means concluded. See Greenfield v. People, 13 Hun, 242.

The conclusion reached in the celebrated Stokes case has never been impaired and it must be regarded as "settled law" that, where the defense introduce a witness who after giving materiai testimony in the case is cross-examined by the prosecution with a view to impair the credibility of her testimony and where upon such cross-examination she denies having stolen certain articles of personal property from her employers, it is error under the objection of the defendant to allow the prosecution to prove the false character of this denial. Stokes v. People, supra.

The principle of evidence dimly outlined in the Stokes case may in its full expansion be expressed as follows:

"When a witness on cross-examination has answered a question which is relevant only to test his accuracy or credibility, his answers to such question cannot be contradicted except in the following cases:

"(1) If he has been asked whether he has been convicted of a crime and does not admit it, evidence may be given of such conviction.

"(2) If he is asked a question tending to show that he has a feeling of enmity toward the party against whom he is called, and if he denies the fact about which he is asked, he may be contradicted by other witnesses."

$223. Cross-Examination of Defendant in His Own Behalf. -Few contentions in the entire range of criminal jurisprudence